Suresh and Ambika vs Baby

Thomas P. Joseph, J.—Exhibit P5, order passed by the learned Munsiff, Karunagappally on I.A. No. 2885 of 2011 in O.S. No. 303 of 2009 is under challenge at the instance of the defendants in the suit. The respondent filed the suit seeking a decree for prohibitory injunction against petitioners trespassing into the suit property. Petitioners filed written statement and a counter claim seeking a declaration of right of prescription over the counter claim B schedule property for access to the counter claim A schedule property belonging to them and for mandatory injunction for removal of a compound wall allegedly constructed by the respondent (recently) over the counter claim B schedule property. The parties went to trial. After closure of evidence and as submitted by the learned counsel for the respondent, even after submission of argument notes petitioners noticed that there was an inadvertent mistake in mentioning the extent and survey number of the B schedule property in the counter claim. To correct that mistake they filed I.A. No. 2885 of 2011. In the affidavit in support of the said application it is stated that the mistake happened when the computer print out was taken and that the survey number and extent of the counter claim A schedule property happened to be stated for the counter claim B schedule property also.

The application was resisted by the respondent on various grounds including that there is lack of diligence on the part of the petitioners and hence after commencement of trial, amendment cannot be allowed in view of the proviso to Rule 17 of Order VI of the CPC (for short, "the Code").

The learned Munsiff found acceptance for the objection raised by the respondent and by Ext. P5, order dismissed the application.

The learned counsel for the petitioners asserted the circumstances and the mistake happened in mentioning the extent and survey number of the B schedule in the counter claim. Learned counsel has placed reliance on the decision in Eapen Antony Vs. Joseph and Another .

Learned counsel for the respondent contended that as per the proviso to Rule 17 of Order VI of the Code amendment sought for cannot be allowed. He also stated that the reasons stated by the petitioners for the so called mistake in the survey number and extent of B schedule of the counter claim cannot be accepted.

In the counter the B schedule as originally filed the re-survey number is mentioned as 53/12/2/2 and the old survey number is stated as 5032. The extent is stated as 4.05 Ares. Correction sought is that survey number is to be corrected as R.S. No. 53/12/2 and the extent as 32 sq. links out of 1.62 Ares.

I must notice that even as per the amendment sought for in I.A. No. 2885 of 2011 there is no change for the boundaries or description of the counter claim B schedule property-amendment sought is only regarding the re-survey number and extent. I am not inclined to think that if the amendment is allowed, that would affect the nature and character of the counter claim. Nor is there any change to the counter claim B schedule property.

Then the question is whether since the trial has commenced the reason stated for amendment has to be accepted? As per the proviso to Rule 17 of Order VI, petitioners are to show that in spite of due diligence they were not able to seek amendment.

In Eapen Antony v. Joseph (supra) this Court referring to various facts and circumstances stated that a party or counsel may fail to note the mistake in the pleadings and may seek amendment of the same after commencement of the trial. It is pointed out even in spite of due diligence it may be possible that a party or counsel noticed the defect or deficiency in the pleadings only in the course of trial.

Having regard to the above circumstances I am not inclined to think that there was lack of diligence on the part of the petitioners. I also stated about the nature and extent of the amendment sought for. In the circumstances I am inclined to think that the learned Munsiff was wrong in disallowing the prayer for amendment. I must also notice that every amendment which is required and necessary for a decision of the case has to be permitted. In the circumstances I am inclined to allow the request.

Resultantly, the Original Petition is allowed as under:

(i) Exhibit P5, order dated 27.07.2012 on I.A. No. 2885 of 2012 in O.S. No. 303 of 2009 is set aside.

(ii) I.A. No. 2885 of 2011 is allowed.

(iii) Petitioners shall carry out the amendment to the counter claim as prayed for in I.A. No. 2885 of 2011 within fourteen (14) days from this day.

(iv) Needless to say that on such amendment being carried out, the respondent as defendant in the counter claim will get opportunity to file additional replication, if any.