Back
2025 Supreme(Online)(Ker) 46392
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. Krishna Kumar, J
V.R.JAROME – Appellant
Versus
V.A.DAISON – Respondent
OP(C) NO. 536 OF 2015
For the Appellants/Petitioners: SRI.SANTHOSH G. PRABHU, SMT.A.ASWATHY, SRI.S.KANNAN
For the Respondents: SRI.A.BALAGOPALAN, SHRI.A.RAJAGOPALAN
Court allows amendment to plaint amid disputed facts over property encroachment, emphasizing the need for status quo maintenance during suit.
Headnote:The petitioner, a plaintiff in O.S. No. 365 of 2013, contended that a boundary wall was constructed by the defendants post-filing without a Commissioner’s appointment. The learned Munsiff denied amendments arguing for proper remedies. The court, acknowledging disputed facts and potential encroachment, allowed the amendment to the plaint. The court did not express any opinion on the case merits. The petition concluded with orders set aside and directions for further trial actions.
| Table of Content |
|---|
| 1. facts of a boundary wall construction post-suit. (Para 1 , 2) |
| 2. arguments regarding the need for amendments. (Para 3 , 4) |
| 3. court's observations on upheld remedy and further actions. (Para 5) |
JUDGMENT
The petitioner is the plaintiff in O.S. No. 365 of 2013 on the file of the II Additional Munsiff’s Court, Ernakulam. The suit was originally filed before the Vacation Court. According to the petitioner, the Vacation Court did not appoint a Commissioner at the time of institution of the suit, but it was done only after six days. In the meantime, the respondents, the defendants in the suit, constructed a boundary wall on the western side of the plaint ‘A’ schedule property. Aggrieved by the same, the petitioner filed an application for amending the plaint so as to incorporate a relief of mandatory injunction. The petitioner also filed an application for appointment of a fresh Commissioner.
2. By Exts. P6 and P9 orders, the learned Munsiff dismissed the applications finding that if they were aggrieved by the construction of the boundary wall after the institution of the suit, the proper remedy was to file a suit for fixation of boundary.
3. Heard the learned counsel appearing for the petitioner and the respondents.
4. The learned counsel appearing for the respondents stoutly opposed the petition, contending that the petitioner has not made out any case that the construction was carried out by encroaching upon the plaint ‘B’ schedule property. This contention was refuted by the learned counsel for the petitioner, who submitted that the construction was indeed effected encroaching upon their property. Thus, it is evident that there are disputed questions of facts which can be resolved only after the trial. If the factual allegations made by the petitioner are correct, the changes in the plaint schedule property were effected subsequent to the filing of the suit. Whether those allegations are correct or not is a matter to be decided by the court after a full-fledged trial. However, on institution of a suit, the parties are bound to maintain the status of their respective properties as it existed at the time of institution of the suit. If the petitioner contends that the respondents altered the status of the properties after filing the suit, it is open to him to suitably amend the pleadings and to bring necessary proof as regards to it. In the above factual circumstances, I find it just and proper to permit the petitioner to amend the plaint in the manner sought for.
5. Once such amendment is carried out, it will be open to the trial court to reconsider the request for appointment of a Commissioner, after taking into account the counter affidavit filed by the respondents. It is made clear that this Court has not expressed any opinion on the merits of the case.
In view of the above discussion, Exts.P6 and P9 orders are set aside and the original petition is disposed of with the above observations.
