BY AD v. S.BALACHANDRAN

plaintiff in O.S. No.1406/2018 pending before the IInd Additional Munsiff Court, Thiruvananthapuram. He is aggrieved by Ext.P8 order, which dismissed an amendment application, on the premise that the amendment was sought for after commencement of the trial and that the same is highly belated. Absence of due diligence in the part petitioner/plaintiff is also found.

2. Heard the leaned counsel for the petitioner/ plaintiff and respondents/defendants.

3. Learned counsel for the petitioner/plaintiff invited the attention of this Court to Ext.P4(p), a plan which is appended to Ext.P4 document, propounded as the plaintiff’s title deed. Learned counsel would also invite that what has been shown on the top of the northern side of the plan, is the O.P.(C) NO.2373 OF 2023 4 Kovalam – Thiruvallom road in the east-west direction. From the central portion of the said road, another by-road starts, which proceed towards south, until it meets the property of Ambika Bharathan Nair. From there, the road proceeds to west, from where plaint B schedule pathway commence, upto the property of the Hotel Leela International. It is a contention of the petitioner that although the lie and nature of the properties is as depicted in Ext.P4(p) plan, a mistake has crept in while describing the document, at page No.P4(n). The pathway has been described as one having 17 feet width, which starts from Thiruvallom – Kovalam beach road and which proceeds towards west. As a matter of fact, the portion of the bye-road which commences from the Thiruvallom – Kovalam road, as depicted in the plan, upto the property of Ambika Bharathan Nair, is a public pathway and the private pathway, which is the subject matter of Ext.P4 document, starts only from the western side of the point, O.P.(C) NO.2373 OF 2023 5 where the said public road meets the property of Ambika Bharathan Nair, which has been specifically shown in the plan. The mistake has crept into the plaint as well. The CEO of the plaintiff company was examined as PW1 and he was confronted with this issue, wherein plaint B schedule pathway has been claimed completely as a private pathway; whereas a portion of the same, as could be seen from Ext.P4(p) plan, is not having the characteristics of a private pathway, but is a public pathway. Immediately thereupon, the plaintiff filed Ext.P5 application for amendment, which was dismissed vide the impugned Ext.P8 order. According to the learned counsel, the same was only a mistake, liable to be corrected.

4. The above submissions were seriously refuted by the learned counsel for the respondents. It was submitted that the survey numbers made mention of in the description of the property in Ext.P4 does not find a place in the plan appended to the document O.P.(C) NO.2373 OF 2023 6 contained in Ext.P4(p). Secondly, it was pointed out that, as per reference made in paragraph numbers 6, 7, 12 and 26 of the written statement, it was specifically averred by defendants 2 and 3 that the description of plaint B schedule pathway is not correct. However, there was no attempt to correct the same, until the trial commenced. It was also submitted that the title deed was not produced along with the plaint. A detailed objection has been preferred by the respondents herein and accepting the contentions in the objection, the Ext.P5 application was dismissed, vide Ext.P8 order. According to the learned counsel, Ext.P8 order does not warrant any interference, by this Court.

5. Having heard the learned counsel appearing on both sides, this Court is of the opinion that Ext.P5 application ought to be allowed. This Court notice that the amendment sought to be incorporated is something in consonance with Ext.P4(p) plan appended O.P.(C) NO.2373 OF 2023 7 to Ext.P4 document, the title deed of the plaintiff. It is true that the description in Ext.P4 document, as also, the description in the schedule to the plaint are at variance with the depiction of the property, as shown in Ext.P4(p) plan. It is to correct the same, that the present amendment application is filed, according to the learned counsel. The surviving incongruity as regards the survey numbers etc pointed out by the learned counsel for the respondents is something which the plaintiff will have to answer, even assuming the amendment is to be allowed. It is true that there has been delay in the part of the plaintiff, especially when a contention has been taken in the written statement that the description of plaint B schedule property is not correct. However, this Court is of the opinion that the delay can be compensated in terms of cost to be awarded to the respondents. O.P.(C) NO.2373 OF 2023 8

6. In the circumstances, this Original Petition is allowed; Ext.P8 order is set aside and Ext.P5 application will stand allowed, subject to the condition that the petitioner pays a sum of Rs.15,000/-(Rupees Fifteen Thousand only) to the third respondent, within a period of two weeks, from today. The learned Munsiff will ensure that the amendment is carried out and the suit is proceeded thereafter, in accordance with law. Opportunity should be granted to the defendants, in case they choose to file any additional pleadings. Similarly, if PW1 is to be recalled, on the strength of the additional pleadings, the same shall also be done. With the above observations, this Original Petition will stand disposed of. BR Sd/- C. JAYACHANDRAN JUDGE O.P.(C) NO.2373 OF 2023 9 APPENDIX OF OP(C) 2373/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 COPY OF PLAINT IN O.S. 1406/2018 OF THE 2ND ADDITIONAL MUNSIFF COURT THIRUVANANTHAPURAM COPY OF WRITTEN STATEMENT FILED BY THE 2ND DEFENDANT IN O.S.1406/2018 OF THE 2ND ADDITIONAL MUNSIFF COURT THIRUVANANTHAPURAM COPY OF WRITTEN STATEMENT FILED BY THE 3RD DEFENDANT IN O.S.1406/2018 OF THE 2ND ADDITIONAL MUNSIFF COURT THIRUVANANTHAPURAM DATED 17-06-2022 COPY OF EASEMENT DEED NO.564/2006 DATED 27-02-2006 COPY OF AMENDMENT APPICATION I.A.5/2023 IN O.S.1406/2018 OF THE 2ND ADDITIONAL MUNSIFF COURT THIRUVANANTHAPURAM DATED 14-09-2023 COPY OF OBJECTION TO THE AMENDMENT APPICATION TO I.A.5/2023 IN O.S.1406/2018 OF THE 2ND ADDITIONAL MUNSIFF COURT THIRUVANANTHAPURAM DATED 07-10-2023 FILED BY THE 2ND DEFENDANT COPY OF OBJECTION FILED BY THE 3RD DEFENDANT DATED 09-10-2023 TO I.A.5/2023 IN O.S.1406/2018 OF THE 2ND ADDITIONAL MUNSIFF COURT THIRUVANANTHAPURAM CERTIFIED COPY OF THE ORDER OF THE 2ND ADDITIONAL MUNSIFF COURT THIRUVANANTHAPURAM IN I.A.5/2023 IN O.S.1406/2018 DATED 13-10-2023 O.P.(C) NO.2373 OF 2023 10