JUDGMENT

The petitioner is the additional 2nd plaintiff in O.S.No.243 of

2012 on the files of the Subordinate Judge's Court, Kollam. The suit was filed by the petitioner's father and upon his death, the petitioner was impleaded. The prayers in the suit are for a decree declaring the plaintiff’s easement right over the motorable road described as C schedule and for a decree of mandatory injunction directing defendants 1 to 8 to demolish and remove D schedule wall constructed in C schedule road and ancillary reliefs. The essential facts are as under;

The plaintiff purchased plaint A schedule property having an extent of 7 Ares 28 sq.mtrs comprised in Re-sy.No.40 in Block No.68 of Kollam East Village in a public auction conducted by the Indian Bank under the provisions of the SARFAESI Act. The adjoining property on the north (B schedule) is owned by the 1st defendant SNDP Sakha. Both A and B scheduled properties originally belonged to one Sundareswaran. Plaint B schedule property was bequeathed to the SNDP Sakha by Sundareswaran and plaint A schedule was mortgaged by him with the Indian Bank for availing a loan. Plaint C schedule road starting from the public road and passing through B schedule property was maintained by Sundareswaran to reach A schedule property and his other properties, lying on the eastern and southern sides of A schedule. Plaint C schedule road is the only way for ingress and egress to A schedule. Sundareswaran committed default in repayment of the loan and plaint A schedule property was brought to sale. The plaintiff purchased the property in auction. The defendants, with the objective of obstructing the plaintiff from reaching A schedule, constructed D schedule wall in C schedule road. Hence, the suit was filed by the original plaintiff. After impleadment as the additional 2nd plaintiff, the petitioner filed Exhibit P2 application for amendment, seeking to make certain alterations to the description of C schedule. The application was opposed by the defendants. By Exhibit P4 order, the court below dismissed the application. Aggrieved, this original petition is filed.

2. Heard Smt.Maitreyi Hegde, learned counsel for the petitioner and Sri.S.Sreekumar (Kollam), learned counsel for the respondents.

3. Learned counsel for the petitioner contended that the impugned order is bad for absence of reasons and the findings in the order are factually incorrect and legally unsustainable. It is contended that the amendment does not in any manner alter the nature of the suit or cause prejudice to the defendants. According to the learned counsel, the finding in the impugned order that the attempt of the petitioner is to introduce a new case as to the lie of the disputed way is without basis. It is submitted that, except correcting certain mistakes with respect to the identity of C schedule way, nothing further is being brought out through the amendment. Reference is made to the decisions of this Court and of the High Court of Madras to contend that amendments in relation to the description of the scheduled property does not have the effect of introducing a new case. Assailing the finding of the trial court that the amendment is highly belated it is contended that the trial court failed to understand the objective, the scope and ambit of Order VI Rule 17 CPC, as also the settled legal position that applications for amendment should be construed liberally.

4. Learned counsel for the respondent supported the impugned order by contending that the amendment application was rejected for valid reasons and on being satisfied that the attempt of the petitioner was to introduce a new case and to claim easement over the newly described way. Reliance is placed on the decision in Subramonian R.D. v. C.B.Sukumara Kurup [ILR 2019 3 Ker. 351] to contend that introduction of a new cause of action and new relief by incorporating a new schedule by way of an amendment would not fall under the ambit of Order VI Rule 17 CPC. It is further contended