JOY MICHAEL Vs. K T JOSEPH

JUDGEMENT

(1.) Petitioner is plaintiff and respondents defendants in O.S.316/97 on the file of Munsiff Court, Pala. Suit was filed seeking a decree for permanent prohibitory injunction preventing respondents from causing any obstruction to the pathway described in the plaint. Petitioner claimed that he has a right of easement by prescription over the plaint schedule property. After the filing of the suit, plaint was amended twice. Again petitioner filed another application for amendment to incorporate further allegations in the pleading. It was dismissed by the trial court. After trial, learned Munsiff dismissed the suit. Petitioner challenged that decree and judgment before Sub Court, Pala in A.S.51/00. Learned Sub Judge on hearing the appeal, found that learned Munsiff should have allowed the amendment sought for by the plaintiff and therefore allowed the amendment application on payment of cost. Consequently the decree and judgment were set aside and suit was remanded back to the trial court for fresh disposal. After remand, suit records were received by the learned Munsiff on 15.12.04. Case was posted for steps and thereafter it was included in the special list on 7.1.05. On 5.1.05 petitioner filed I.A. 37/05 an application for appointment of a Commission and I.A.38/05 an application to amend the plaint under Order VI Rule 17 of CPC. Respondents objected to the petitions contending that petitioner is only trying to protract the trial and there is no bona fides in the petition and the amendment cannot be allowed and the Commissioner cannot be appointed. Under Ext.P9 order, learned Munsiff dismissed both the applications. It is challenged in this petition filed under Article 227 of Constitution of India.

(2.) Learned counsel appearing for petitioner and respondents were heard.

(3.) On hearing the arguments and going through Ext.P9 order and Ext.P4 judgment in the appeal and the amendment applications filed, it is clear that learned Munsiff dismissed the applications on the ground of delay, without considering the crucial question whether for a just decision of the case amendment sought for is to be allowed or not. True, there is laches and negligence on the side of the petitioner to take out a Commission and to file the application for amendment. But the circumstances of the case reveal that it was not the fault of the petitioner but major part of the fault was the counsel who appeared for petitioner and framed the suit. That is why amendments were necessitated in the plaint.