BINDU Vs. ARIPURATH THACHATTU CHANDRAN NAIR

JUDGEMENT

(1.) THIS original petition is filed challenging the order in I.A. No. 977 of 2010 in O.S. No. 586 of 2008 on the file of the Principal Munsiff's Court -I, Kozhikode. The defendant in the suit is the petitioner and the respondents herein are the plaintiffs. The suit is for declaration and consequential injunction restraining the defendant from trespassing into plaint A schedule property or to use any portion of it as a way.

(2.) WHEN the case was posted for trial, the defendant filed an amendment application to amend the written statement. The defendant sought amendment to the effect that plaintiffs have no right over the plaint schedule property. This version of the defendant appears to have been made with reference to the report submitted by the Commissioner on the matter. The learned Munsiff dismissed the application on the ground that the defendant had set up right of easement by necessity in the written statement which would amount to admitting the right of the plaintiffs over the plaint schedule property and therefore, such right cannot be taken away by way of amendment. It is also noted by the learned Munsiff that the Commissioner has not stated that pathway to the petitioner is outside the plaint A schedule property. Therefore, the learned Munsiff dismissed the application. Challenging the order, this original petition is filed.

(3.) THE application for amendment was filed at the time when the case was posted for trial. The defendant also had filed an application in terms of proviso to Order VI Rule 17 of the Code of Civil Procedure to condone delay occurred in filing the application for amendment. However, there is no reference of the above application in the impugned order. This Court, on verification through the Registry, obtained a report and finds that the said application has been allowed as per the order in I.A. No. 976 of 2010 on 28.05.2010.