E. Dani v. The Corporation of Thiruvananthapuram and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 30[TH] DAY OF JANUARY 2023 / 10TH MAGHA, 1944 ``` ## **`OP(C) NO. 2597 OF 2022`** ## **`OS 708/2021 OF III ADDITIONAL MUNSIFF COURT ,TRIVANDRUM`** ## **`PETITIONER/PLAINTIFF:`** ``` E. DANI AGED 77 YEARS, S/O ELIYA M. NELLIVILA HOUSE, POWDIKONAM, POWDIKONAM P.O, ULIYAZHTHURA VILLAGE, THIRUVANANTHAPURAM, PIN - 695587 ``` ``` BY ADVS. BASIL MATHEW NINAN JOHN SANJANA SARA VARGHESE ANNIE AJAY KRISHNAN S. ARYA A.R. CHITRA NIMMY ``` ## **`RESPONDENTS/DEFENDANTS/ADDITIONAL DEFENDANTS 5 TO 7:`** ``` 1CORPORATION OF THIRUVANANTHAPURAM L. M. S. JUNCTION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, KERALA, REPRESENTED BY ITS SECRETARY, PIN - 695033 ``` ``` 2THE SECRETARY CORPORATION OF THIRUVANANTHAPURAM, L. M. S. JUNCTION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, KERALA, PIN 695033 ``` ``` 3ASSISTANT ENGINEER KERALA STATE ELECTRICITY BOARD LIMITED, SREEKARYAM SECTION, SREEKARYAM P.O., THIRUVANANTHAPURAM, PIN - 695017 ``` - `4 ASSISTANT ENGINEER KERALA WATER AUTHORITY, KAZHAKOOTAM SECTION, PONGUMOODU, THIRUVANANTHAPURAM,, PIN - 695011` ``` 5JANAKEEYA SAMITHI REPRESENTED BY ITS CHAIRMAN, BINOYMON. B, AGED 41 YEARS, S/O BALAKRISHNAN, NELLIKKAVILA, POOVAKKODU, ``` ``` OP(C) NO. 2597 OF 2022 2 ``` ``` POWDIKONAM. P.O., THRIVANANTHAPURAM, PIN - 695587 ``` ``` 6POWDIKONAM RESIDENCE ASSOCIATION REG. NO. TVM/TC/299/2017, REPRESENTED BY ITS PRESIDENT, DR. S HARIKUMAR, POWDIKONAM. P.O., THIRUVANANTHAPURAM., PIN - 695587 ``` ``` 7POOVAKKODU THAMPURAN TEMPLE REG NO. 1945/1986, REPRESENTED BY ITS TREASURER, S. RAGHUNATHAN, S/O GANGADHARAN PILLAI, POWDIKONAM P.O., THIRUVANANTHAPURAM., PIN - 695587 ``` ``` BY ADVS. SUMAN CHAKRAVARTHY P.M.JOHNY M.M.BABY SONIA STEPHEN(K/001511/2003) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`OP(C) NO. 2597 OF 2022 3`** **Dated this the 30[th] day of January, 2023** ## **JUDGMENT** Aggrieved and confronted with Ext.P6 order passed in I.A No.3/2022 in O.S. No.708/2021 by the Court of the Additional Munsiff-III, Thiruvananthapuram, the plaintiff in the suit has filed the original petition. The respondents are the defendants in the suit. 2. The petitioner’s case, shorn of exhaustive pleadings, in the original petition is that; he has filed the suit against the respondents 1 to 4, seeking a decree of permanent prohibitory injunction, to restrain them from trespassing into the plaint ‘C’ schedule property. It is his case that, he is the owner and in possession of plaint ‘A to C’ schedule properties. It was he who constructed plaint ‘C’ schedule property to reach the main road. A buildercum-developer has purchased the southern side of the ## **`OP(C) NO. 2597 OF 2022 4`** plaint schedule properties and divided them into plots. The respondents 1 to 4 and their officials trespassed into the plaint schedule properties and demolished the western side of plaint ‘C’ schedule property. The petitioner is a senior citizen. He has filed a complaint before the District Collector against the high-handed action of the respondents 1 to 4. As the petitioner is unable to restrain the illegal actions of the respondents 1 to 4, he was constrained to file Ext.P1 plaint. At his instance, Ext.P2 commission report has been filed. The court below, by Ext.P3 order, has directed the parties to maintain status quo. The respondents have not chosen to file their written statement till date. In the interregnum, the respondents 5 to 7 filed I.A. No.3/2022 (Ext.P4) under Order I Rule 10(2) of the Code of Civil Procedure (in short ‘Code’), to get themselves impleaded as additional defendants in the suit. The application was resisted by the petitioner through Ext.P5 written objection. The court below, by the impugned Ext.P6 order, allowed ## **`OP(C) NO. 2597 OF 2022 5`** Ext.P4 application. Ext.P6 order is manifestly wrong and unsustainable in law. Hence, the original petition. 3. The respondents 5 to 7 have filed a counter affidavit denying the allegations in the original petition. It is their case that plaint ‘C’ schedule property is a public road. Due to the continuous rainfall, the plaint ‘C’ schedule property is in a dilapidated condition. The respondents have filed a complaint before the District Collector ventilating their grievances. The Human Rights Commission, by Ext.R5(3) order, has directed the second respondent to repair the road on a war footing. While the repair work was in progress, the petitioner trespassed into the plaint ‘C’ schedule property and has thereafter filed the suit. If the public road is encroached and obstructed, it would cause severe prejudice and hardship to the respondents, the local residents and the public at large. It was in the above situation and circumstances that they filed Ext.P4 application to get impleaded in the suit. The court below ## **`OP(C) NO. 2597 OF 2022 6`** has rightly allowed Ext.P4 application by Ext.P6 order. There is no illegality in Ext.P6 order. The original petition is devoid of any merits and is only to be dismissed. 4. Heard; Sri.Basil Mathew, the learned counsel appearing for the petitioner, Sri.Suman Chakravarthy, the learned counsel appearing for the respondents 1 and 2, Sri. P.M.Johny, the learned counsel appearing for the respondents 3 and 4 and Smt. M.M.Baby, the learned counsel appearing for the respondents 5 to 7. 5. The question is whether there is any illegality in Ext.P6 order. 6. The petitioner has filed the suit for a decree of permanent prohibitory injunction against the respondents 1 to 4, to restrain them from trespassing into plaint ‘C’ schedule property. The court below based on Ext.P2 report, has passed Ext.P3 status quo order. 7. During the pendency of the suit, the respondents 5 to 7 have filed Ext.P4 application, inter alia, contending ``` OP(C) NO. 2597 OF 2022 7 ``` that the petitioner and the other local residents had surrendered their properties to the first respondent Corporation 30 years back. The present attempt of the petitioner is to grab public property and unlawfully enrich himself. At the request of the respondents, sufficient funds have been allotted to repair the road. The Human Rights Commission has already directed the road to be repaired on a war footing. The sixth respondent is the president of a local resident’s association. More than 100 families are using the road. The devotees of the nearby temple also use the road to reach the temple. There are several Government and private institutions in the locality, and the said road is the best access to reach the institutions. It was to protect the interest of all the above concerned, that the said respondents got themselves impleaded in the suit. 8. Ext.P4 application was opposed by the petitioner by filing Ext.P5 objection, inter alia, contending that he is the dominus litis of the suit. The petitioner has only ## **`OP(C) NO. 2597 OF 2022 8`** sought for a relief against the respondents 1 to 4. Therefore, there is no necessity to implead the respondents 5 to 7 as additional defendants. 9. The court below after considering Exts. P4 and P5, by the impugned Ext.P6 order, allowed the impleadment of the respondents 5 to 7. 10. In **Sudhamayee Pattnaik and Others v. Bibbu Prasad Sahoo and others** [2022 SCC online SC 1234], the Honourable Supreme Court has categorically laid down the law that a party can be impleaded in the suit either suo motu by the court or at the instance of the plaintiff. 11. In the case on hand, the court below after considering the rival pleadings in Exts.P4 and P5 application, has arrived at a conclusion that the respondents 5 to 7 are the necessary parties for the proper determination of the suit. 12. Going by the pleadings and materials on record, especially the averments in Ext.P4 application, I am definitely of the view that the respondents 5 to 7 are ``` OP(C) NO. 2597 OF 2022 9 ``` necessary parties in the suit. I completely concur with the finding of the court below. I do not find any error or illegality in Ext.P6 order warranting interference by this Court under Article 227 of the Constitution of India. The original petition is devoid of any merits and is hence dismissed. **Sd/-** **C.S.DIAS, JUDGE** rmm30/01/2023 ## **`OP(C) NO. 2597 OF 2022 10`** ## **`APPENDIX OF OP(C) 2597/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit1THE TRUE COPY OF THE PLAINT IN O.S. NO. 708/2021 DATED 09.07.2021 OF HON'BLE ADDITIONAL MUNSIFF COURT III, THIRUVANANTHAPURAM ``` - `Exhibit P2 THE TRUE COPY OF THE SAID COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER IN O.S. NO. 708/2021` - `Exhibit P3 THE TRUE COPY OF THE SAID ORDER OF HON'BLE ADDITIONAL MUNSIFF COURT III, THIRUVANANTHAPURAM, DATED 31.08.2021` - `Exhibit P4 THE TRUE COPY OF THE SAID PETITION FILED BY THE RESPONDENTS NO. 5-7 IN THE ABOVE SUIT` - `Exhibit P5 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER` - `Exhibit P6 THE CARBON COPY OF THE ORDER IN I.A. NO. 3/2022 DATED 24.11.2022` - `RESPONDENT EXHIBITS` - `EXHIBIT R5(1) TRUE COPY OF THE MASS COMPLAINT DATED 23.06.2021 SUBMITTED BY THE RESIDENTS OF NELLIKKAVILA POOVAKKODE BEFORE THE DISTRICT COLLECTOR` - `EXHIBIT R5(2) THE TRUE COPY OF THE REPLY DATED 08.09.2021 SUBMITTED BY CORPORATION BEFORE THE HUMAN RIGHTS COMMISSION` - `EXHIBIT R5(3) TRUE COPY OF ORDER DATED 26.11.2021 OF THE HUMAN RIGHTS COMMISSION`