SHAJI Vs. APPACHAN M JOSEPH

JUDGEMENT

(1.) THE suit as originally framed was one for fixation of boundary and consequential injunction. THE Advocate Commissioner deputed in the suit filed a report and plan. THE same reflected that about 3 cents of land out of the total extent of 72.5 cents of land is in the possession of the defendants. THE plaintiffs thereupon filed an application for amendment of the plaint seeking to incorporate a prayer for recovery of possession. THE court below has allowed the application for amendment which is impugned in this Original Petition under Article 227 of the Constitution of India.

(2.) IT is evident from the proceedings that no witnesses have been examined on either sides and that only the chief affidavit of one of the plaintiffs has been filed. The proviso to Order VI Rule 17 of the Code of Civil Procedure is not an absolute embargo to allow the application for amendment. The plaintiffs have stated that they knew about the trespass committed by the defendants only after the report and plan of the Advocate Commissioner. I am satisfied that the plaintiff was prevented by sufficient cause for not incorporating a plea for recovery of possession earlier. 2. The court below has cautiously allowed the application for amendment only from the date of preferment and that too on payment of costs of Rs. 500/- to the contesting defendant. I am not inclined to interfere with the discretion exercised by the court below and there is also no error of jurisdiction in the order impugned.