EAPEN ANTONY Vs. JOSEPH

JUDGEMENT

(1.) The question involved in these Writ Petitions is whether the plaintiff in a suit can be allowed to amend the plaint after the evidence on his side is closed. These Writ Petitions came up for admission on 10.2.2009. The question involved being the same, as agreed by the counsel appearing for the petitioners, these Writ Petitions are being disposed of by this common judgment.

(2.) In W.P.(C) No. 4270 of 2009, the respondents/plaintiffs filed the application for amendment of the plaint by amending the description of the plaint schedule property. The court below allowed the application which is under challenge in the Writ Petition. The plaint schedule property is a pathway leading to the plaintiffs' residential compound. The plaint schedule property was purchased by the plaintiffs as per a registered document of the year 1981. The property of the first defendant lies on the northern and western side of the plaint schedule property. It is stated that the pathway starts from the north-eastern corner of an extent of 30 cents of land. In the document of title also, the property is similarly described. The suit was filed for a permanent injunction restraining the defendants from entering into the plaint schedule property. The first plaintiff stated in the affidavit accompanying the application for amendment that the pathway starts from the north-western corner of the 30 cents of land and not from the north-eastern side. He came to know of the mistake in the title deed and in the plaint schedule only when he was cross examined by the defendants on 14.1.2009. The plaintiffs filed the application on 23.1.2009 for amendment of the plaint. The application was opposed by the defendants. The first defendant contended that the suit was listed for evidence on 14.1.2009 and PW1 to PW5 were examined on the side of the plaintiffs. On 29.1.2009, DW1 was examined. Meanwhile, on 23.1.2009, the application for amendment of the plaint was filed by the plaintiffs. There is no mistake as alleged. The first defendant contended that the application for amendment is not maintainable in view of the bar under the proviso to Rule 17 of Order 6 of the Code of Civil Procedure.

(3.) The court below allowed the application holding thus :