C. S ABEEB v. Chellanam Grama Panchayath and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944 OP(C) NO. 1350 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN I.A. No. 5/2021 IN OS 166/2020 OF MUNSIFF COURT, KOCHI DATED 08/03/2022 ``` ## **`PETITIONER/PLAINTIFF:`** ``` C. S ABEEB AGED 47 YEARS, S/O. LATE SEETHI, RESIDING AT "SITHARA", THOPPUMPADY VILLAGE, THOPPUMPADY, ERNAKULAM DISTRICT, PIN – 682 005 BY ADVS.AJWIN P LALSON BABU KARUKAPADATH M.A.VAHEEDA BABU P.U.VINOD KUMAR ARYA RAGHUNATH VAISAKHI V. T.M.MUHAMMED MUSTHAQ KARUKAPADATH WAZIM BABU P.LAKSHMI AYSHA E.M. ``` ## **`RESPONDENTS/DEFENDANTS:`** ``` 1CHELLANAM GRAMA PANCHAYATH ANDIKKADAVU P.O, CHELLANAM, ERNAKULAM, REPRESENTED BY ITS SECRETARY, PIN – 682 008 2THE SECRETARY CHELLANAM GRAMA PANCHAYATH, ANDIKKADAVU P.O, CHELLANAM, ERNAKULAM., PIN – 682 008 ``` O.P.(C) No. 1350 of 2022 -:2:- ``` 3KRISHAN DEV GAUR S/O D.P. GAUR, RESIDING AT C.C 8/758, SHANTHI NAGAR COLONY, KOOVAPADAM, KOCHI., PIN – 682 008 BY ADVS. DINESH R.SHENOY G.KRISHNAKUMAR EBIN MATHEW(K/483/2015) A.JOSEPH GEORGE(K/547/2007) SILESH S. PRABHU(K/510/2020) JOMOL PIUS(K/002269/2022) SAMBHU NARAYANAN S.(K/2143/2022) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(C) No. 1350 of 2022 -:3:- ## JUDGMENT Dated this the 5[th] day of December, 2022 This Original Petition is filed under Article 227 of the Constitution of India seeking for the following reliefs : “i) Set aside Ext.P5 order dated 08.03.2022 in I.A. No.5/2021 in O.S. No.166/2020 of the Hon’ble Munsiff’s Court, Kochi. ii) Dismiss I.A. No.5/2021 in O.S. No.166/2020 on the files of the Hon’ble Munsiff’s Court, Kochi and iii) grant such other reliefs as this Hon’ble Court shall deem just.” 2. An order was passed by Munsiff Court, Kochi (for short ‘the court below’) in I.A. No.5/2021 in O.S. No.166 of 2020 and that is sought to be reversed in the Original Petition. I.A. No.5 of 2021 is also sought to be dismissed consequentially. The petitioner herein is the plaintiff in O.S. No.166 of 2020 on the files of Munsiff Court, Kochi. The suit was instituted there for a mandatory injunction “to effect transfer of registry in the digital registers of the Panchayat” with respect to a building owned by the petitioner, which was omitted to be entered in the digital O.P.(C) No. 1350 of 2022 -:4:- register by the officials of the Panchayat at the time of computerization of the register. 3. The Panchayat and its Secretary were the original defendants in the Suit. They filed written statement in the Suit. While the court below was about to proceed with the trial, the 3[rd] respondent in the Original Petition on hand came with a petition seeking to implead him in the Original Suit. Copy of that petition is produced alongwith the Original Petition on hand as Ext.P3. The court below allowed the application and permitted him to be impleaded in the Suit as additional 3[rd] defendant, true copy of which order is produced alongwith the petition on hand as Ext. P5. Aggrieved by the order passed by the court below, the original plaintiff in the suit has approached this Court with the Original Petition seeking for the above reliefs. 4. It is contended by Sri.Babu Karukapadath, the learned counsel for the petitioner that the proposed additional 3[rd] respondent who was permitted to be brought on record is not a necessary party. According to him, he has no direct involvement in the subject matter of the Suit and the relief that would be ## O.P.(C) No. 1350 of 2022 -:5:- passed in the Suit will, in no way affect his right. According to him therefore, he is not a necessary party to the Suit and he should not have been permitted by the learned Munsiff to be impleaded as additional 3[rd] respondent in the Suit. 5. The learned counsel has cited Rajeevan v. Deputy Commissioner [2020 (3) KLT 470] to contend that the object behind Order I Rule 10(2) of Civil Procedure Code (for sort ‘CPC’) was that a person whose presence is inevitable for arriving at a complete and final decision on the questions involved in the proceedings, must be added as a party. According to him, the additional 3[rd] respondent who is now proposed to be impleaded, is not at all a necessary or proper party when viewed in the backdrop of the primary object envisaged under Order I Rule 10(2) CPC. According to him, on impleadment of the party proposed as additional 3[rd] respondent, additional issues would arise in the Suit and the court below would be constrained to adjudicate those also. According to the learned counsel, those additional issues may not be necessary to be adjudicated in the Suit as far as the reliefs sought by the plaintiff in the Suit are O.P.(C) No. 1350 of 2022 -:6:- concerned. The learned counsel has also relied on Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others [1992 KHC 1025] to contend that while allowing the prayer to implead a party as a necessary one, the court has to see, whether without his juncture in the party array, any order could effectively be passed or not. According to him, in the case cited, the court below has allowed the impleadment and it was confirmed by the High Court of Bombay also. Thereafter the matter was taken up before the Apex Court and it reversed it. According to him, the Apex Court has found that the parties proposed to be impleaded were not at all necessary parties, since their juncture in the suit has nothing to offer, while the real issues involved in the suit are being adjudicated. 6. Sri.Krishnakumar, the learned counsel for the 3[rd] respondent/petitioner has contended on the contrary that the construction with reference to which the particulars are sought to be entered into the digital register is an unauthorised one. According to him, the illegality involved in the construction was brought to the notice of the authorities firstly at the instance of O.P.(C) No. 1350 of 2022 -:7:- the 3[rd] respondent and the relevant and necessary particulars are with him to substantiate. According to him, if the prayer of the 3[rd] respondent to get himself impleaded in the Suit is not allowed, that would result in perverse orders being passed. According to him, the higher authorities proposed to take action against the petitioner herein at the initiative of the 3[rd] respondent and at that juncture, the plaintiff has filed the Suit on hand. 7. Sri.Abin Mathew, the learned Standing Counsel representing respondents 1 and 2 has also contended that the Suit in question was moved by the petitioner herein when action was about to be initiated against him. According to him, he has no objection against the court below allowing or disallowing the impleadment of the additional 3[rd] respondent in the Suit. According to him, they have also taken a stand that the construction is an unauthorised one. 8. Sri.Krishnakumar, the learned counsel for the 3[rd] respondent, who is permitted to be impleaded by the impugned order, had differentiated the facts in the judgment of the Apex Court cited by the learned counsel for the petitioner herein with O.P.(C) No. 1350 of 2022 -:8:- the one on hand stating that the impleadment was sought by a party under a wrong impression that the construction in question was an unauthorised one. But the alleged construction was lateron found not to be a construction at all, but only some movables placed on the top of the building and in that context, the Apex Court had ordered that the party who was sought to be impleaded has no right to get himself impleaded in the suit and to contest the same. Accordingly the order directing impleadment was reversed by the Apex Court. The learned counsel contended that the factual situation in the case on hand is quite different in the sense that the allegation is with regard to unauthorised construction of the building itself and not something presumed to be an unauthorised construction. When the original defendants in the suit have the very same contentions to be raised and the party proposed to be impleaded has also raised similar ones, this Court finds no reason to interfere with the impugned order. The court below has correctly allowed I.A. No. 5 of 2021 and allowed the party to be brought on record in the Suit as additional 3[rd] respondent. O.P.(C) No. 1350 of 2022 -:9:- This Court finds that the subject matter involved in the suit requires an answer for the question raised by the additional 3[rd] respondent for adjudication of it. In that sense, the party permitted to be impleaded as additional 3[rd] respondent is an inevitable party in the Suit, without whose juncture the issues involved in it cannot be adjudicated properly. The Original Petition fails for the reasons and is dismissed. The order under challenge is thus confirmed. Sd/MARY JOSEPH JUDGE ttb O.P.(C) No. 1350 of 2022 -:10:- ## **`OF OP(C) 1350/2022`** ``` PETITIONER’S EXHIBITS : ``` ``` Exhibit-P1TRUE COPY OF THE PLAINT IN O.S. NO. 166/2020 ON THE FILE OF THE HON'BLE MUNSIFF'S COURT, KOCHI. ``` ``` Exhibit-P2TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS 1 & 2/DEFENDANTS 1& 2 IN O.S. NO. 166/2020 ON THE FILE OF THE HON'BLE MUNSIFF'S COURT, KOCHI. ``` - `Exhibit-P3 TRUE COPY OF THE IMPLEADING PETITION I.A. 5/2021 FILED BY THE 3RD RESPONDENT IN O.S. NO. 166/2020 ON THE FILE OF THE HON'BLE MUNSIFF'S COURT, KOCHI.` - `Exhibit-P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN I.A. 5/2021 IN O.S. NO. 166/2020 ON THE FILE OF THE HON'BLE MUNSIFF'S COURT, KOCHI.` - `Exhibit-P5 TRUE COPY OF THE ORDER DATED 08/03/2022 IN I.A NO. 5/2021 IN O.S. NO. 166/2020 OF THE HON'BLE MUNSIFF'S COURT, KOCHI.` ``` RESPONDENTS’ ANNEXURES : ``` ``` Annexure R3 (1)True copy of the notice dated 24.11.2019 issued by the 1st respondent Panchayath Annexure R3 (2)True copy of the notice dated 04.02.2020 issued by the 1st respondent Panchayath Annexure R3 (3)True copy of the direction dated 15.11.2019 issued by the Deputy Director of Panchayath to the 1st respondent Annexure R3 (4)True copy of the order dated 18.01.2020 issued by the 1st respondent Annexure R3 (5)True copy of the Order dated 09.12.2019 issued by the 1st respondent to the petitioner ``` ## O.P.(C) No. 1350 of 2022 -:11:- ``` Annexure R3 (6)True copy of the report dated 05.11.2019 issued by Assistant Engineer, Chellanam Grama Panchayath Annexure R3 (7)True copy of the reply dated 27.11.2020 by the CRMA Annexure R3 (8)True copy of the report dated 19.11.2021 issued by the 1st respondent to the Principal Secretary to the Government Annexure R3 (9)True copy of the report dated 12.03.2021 of the Deputy Director of Panchayath ``` ``` Annexure R3 (9) Annexure R3 (10) ``` ``` True copy of the Communication dated 04.12.2019 issued by the Deputy Director , Kakkanad, Ernakulam ``` ``` Annexure R3 (11) ``` ``` True copy of the communication dated 16.12.2020 of the Principal Secretary to Government ``` ``` Annexure R3 (12) Annexure R3 (13) Annexure R3 (14) ``` ``` True copy of the report dated 05.11.2020 of the Chief Town Planner ( Vigilance) ``` ``` True copy of the report dated 13.05.2022 by the Chief Town Planner ( Vigilance) True copy of the joint Enquiry Report dated 21.07.2022 by the Deputy Town Planner ( Vigilance) Chief Town Planner ( Vigilance) ``` ``` Annexure R3 (15) ``` ``` True copy of the recommendation letter dated 05.07.2021 issued by Sri. K.J. Maxi MLA ``` O.P.(C) No. 1350 of 2022 -:12:-