Under challenge is Ext.P7 order in I.A. 3236 of 2013 in O.S. 336 of 2010 passed by the Munsiff's Court, Muvattupuzha whereby the said court refused to grant relief to the petitioner.
2. The petitioner is the defendant in the suit. The suit was one for fixation of southern, eastern and northern boundaries and also for a permanent prohibitory injunction against the defendant and his agents from causing obstruction to plaint A and B schedule properties and parking of vehicles. Other reliefs were also sought for.
3. The defendant filed a written statement and later he filed an application for amendment of the written statement. That was also allowed. According to the petitioner, by virtue of the amendment brought about, two additional issues arose for consideration and they are whether the suit is maintainable and whether the suit is hit by Section 91 and Order I Rule 8 of the Code of Civil Procedure. Raising these two additional issues, he filed I.A. 3236 of 2013 before the court below. The court below after elaborately considering the matter found that these issues did not arise for consideration and had no connection with the relief sought for in the suit and dismissed the application.
4. Assailing the said order, learned counsel pointed out that no harm would be caused to the plaintiff by having those issues raised in the light of the amendment of the written statement. It is pointed out that what is claimed by the plaintiff is a portion of the public pathway and therefore, Section 91 of C.P.C. is squarely attracted and the suit ought to have been filed under Section 91 of C.P.C. The way is used by the public and the plaintiff claims that it belongs to him, and if that be so, the suit ought to have been filed in a representative capacity under Order I Rule 8 of C.P.C. It was these two additional issues that were sought to be raised and according to the petitioner, the court below ought to have found that these issues do arise for consideration. Further, it is contended that the court below found that B schedule property belongs to the plaintiff as per the assignment deed in their favour. It is too premature a finding since evidence has not been adduced in the case.
5. Even though the last of the contentions may have some basis, the other contentions lack merit. There is nothing to show that there is any grievance for the plaintiff as against the public and their grievance is only against the acts committed by the defendant going by the plaint. It is the case of the defendant that a public way is sought to be annexed to the property of the plaintiff whereas the plaintiff has a case that plaint B schedule property shown in the plaint is a property which is assigned to them and it belongs to them. It is significant to notice that the petitioner had approached this Court by way of a writ petition raising very same complaint and there was a direction to the Municipality to have a joint session of all the persons concerned and attempt a settlement. Any how one fact is very clear. Municipality was aware of the fact that a suit was pending and regarding the claim put forward by the plaintiff. The Municipality has not thought it necessary to implead themselves in the suit nor do they claim that road is vested in them.
6. Going by the claim raised in the suit etc., it has no semblance of the suit under Section 91 of C.P.C. or Order 1 Rule 8 of C.P.C. and that the plaintiff has grievance only against the defendant, who, according to the plaintiff, along with his agents are causing obstruction to their activities. In the light of these facts, the two issues that were sought to be raised do not arise for consideration. However, that portion of the order observing that B schedule is assigned in favour of the plaintiff is a premature finding and is set aside. That is a question to be decided in the suit.
For the above reasons, this court finds that this Original Petition is without merits and it is dismissed. But this will not preclude the defendant from raising all his contentions in the suit.
P. BHAVADASAN, JUDGE sb.