ABDUL RAZZAK Vs. SURAJA DEVI

JUDGEMENT

(1.) The plaintiff in O.S.No.6 of 1997 has approached this Court challenging the order of the trial court in permitting the defendants to amend the written statement, thereby allowing them to raise a counter claim against the plaintiff.

(2.) The suit is one for declaration and injunction. Initially, the suit was dismissed against which an appeal was preferred by the petitioner before the Addl. District Court, Ernakulam as A.S. No.10 of 2003 which was also dismissed. Aggrieved by the dismissal of the appeal, A.S. No.10 of 2003, the petitioner filed R.S.A No.54 of 2006. By judgment dtd. 4/1/2012, this Court allowed the appeal, setting aside the dismissal of the suit and remanding the suit for a fresh consideration. While remanding the matter back to the trial court, this Court found that it is necessary to measure the properties of the plaintiff and the defendants with reference to their respective documents of title. It was also found that since Exts.C2 and C2(a) and the properties of the plaintiff and the defendants were not measured with the documents and title, this Court found that the report cannot be accepted. On remand, the plaintiff took commission for local inspection and Ext.P7 report was filed by the advocate commissioner. Once the report was filed, the defendants sought leave to amend their written statement and thereby sought to raise a counter claim against the plaintiff/petitioner. By raising the counter claim the defendants wanted to incorporate a prayer for a mandatory injunction directing the plaintiff to remove/demolish the constructions made in the counter claim schedule property. Though the petitioner resisted the application for amendment on the ground that there is considerable delay on the part of the defendants in raising the counter claim, the court below by the order impugned, allowed the amendment thereby permitting the defendants/respondents to raise the counter claim. It is aggrieved by the aforesaid order, the petitioner has approached this Court invoking the powers under Article 227 of the Constitution of India.

(3.) I have heard R.S.Kalkura, the learned counsel appearing for the petitioner, G.Rajagopal, S.Leenalekshmi and N.Renjnee Devi, the learned counsel appearing for the respondents 1 and 2.