The petitioner, aggrieved by the judgment and decree in O.S.No.214/2000 before the Additional Munsiff Court, Kochi, ultimately approached this Court by way of R.S.A.No.1313/2004.
2. This Court allowed the second appeal observing that since it was necessary that a plan had to be prepared for demarcating the way as well as the plaint A schedule property and the property of the respondent over which the appellant is claiming a right of easement of way, the matter was remanded to the trial court. It is obvious that the servient tenement over which the right was claimed was not shown as a separate plaint schedule. That lacuna was allowed to be filled up by this Court by a remand. True, this Court also observed that if such an application for amendment incorporating the servient tenement is filed that O.P.(C) No. 2494 of 2014 -2-
shall be allowed and it will be open to the parties to adduce further evidence.
3. After the matter went back to the trial court, the petitioner filed an amendment application seeking several amendments including the one as directed by this Court. The court below took the view that the amendment as per the direction of this Court alone can be allowed in view of the nature of the order of this Court. The other amendments, except the amendment as ordered by this Court, were declined by the impugned order.
4. The learned counsel appearing for the petitioner before this Court contended that the mere fact that this Court has observed that the servient tenement may be included does not preclude the petitioner from seeking further amendments based on subsequent events or of clerical errors which might have occurred in the earlier plaint and the court below was not justified in declining to permit those amendments.
O.P.(C) No. 2494 of 2014 -3-
5. This Court was specific in its order of remand that if an application is filed to amend the plaint showing the servient tenement and also to demarcate the pathway, the same shall be allowed granting opportunity to the defendants to file additional written statement. It is not an open remand as is known to law. A specific observation was made and that too was allowed to carry out a specific amendment and that remained confined to the inclusion of servient tenement.
6. If the petitioner is aggrieved by the said order of remand with specific direction, it is open for the petitioner to seek a review.
This Court finds no ground as of now to interfere with the order this Court. This petition is without merits and it is accordingly dismissed.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE