Manju @ Manju Sivan v. C. Ramakrishnan Nair, OP(C) No. 2948 of 2017 (O) - High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939** ## **OP(C).No. 2948 of 2017 (O)** ## **--------------------------I.A NO.2370/2017 IN O.S.NO.890/2010 OF ADDITIONAL MUNSIFF COURT, PALAKKAD** **----** **PETITIONER/DEFENDANT:** **--------------------** **MANJU @ MANJU SIVAN, W/O.SIVA KUMAR, AGED 35 YEARS, 44/680, MELAMURY BIG BAZAR, PALAKKAD CITY POST, PALAKKAD TALUK, PALAKKKAD DISTRICT** **BY ADVS.SRI.BINOY VASUDEVAN SRI.M.R.MANIKANTAN** **RESPONDENT/PLAINTIFF:** **--------------------** **C.RAMAKRISHNAN NAIR, S/O.LATE KRISHNAN NAIR, AGED 63 YEARS, LINKAPATTARMADAM, CHANKKANTHARA, PALAKKAD TALUK AND DISTRICT, NOW RESIDING AT CHITTAPPURATH HOUSE, THENNILAPURAM GRAMAM, ANJUMOORTHI, ALATHUR TALUK, PALAKKAD DISTRICT** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **OP(C).No. 2948 of 2017 (O)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS.NO. 890/2010 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, PALAKKAD EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN OS.NO. 890/2010 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, PALAKKAD EXHIBIT P3 TRUE COPY OF THE ORDER DATED 14.12.2010 IN IA.NO. 3149/2010 IN OS.NO. 890/2010 EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 19.01.2017 IN OPC.NO. 1884/2016 EXHIBIT P5 TRUE COPY OF THE IA.NO. 2370/2017 IN OS.NO. 890/2010 ON THE FILE OF THE COURT OF THE ADDITIONAL MUNSIFF, PALAKKAD EXHIBIT P6 TRUE COPY OF THE ORDER DATED 14.09.2017 IN IA.NO. 2370/2017 ON THE FILE OF THE COURT OF THE ADDITIONAL MUNSIFF, PALAKKAD RESPONDENT(S)' EXHIBITS NIL -----------------------** **K.V. P.S.TO JUDGE** ## **ANIL K.NARENDRAN, J.** ## **----------------------------------------------O.P.(C)No.2948 of 2017 -----------------------------------------------** Dated this the 9[th] day of October, 2017 ## **J U D G M E N T** The petitioner, who is the defendant in O.S.No.890 of 2010 on the file of Additional Munsiff's Court, Palakkad, is before this Court in this original petition filed under Article 227 of the Constitution of India, seeking an order to set aside Ext.P6 order dated 14.9.2017 of the said court, whereby I.A.No.2370 of 2017 filed by her under Order I, Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') to implead one Mr.C.K.Balan as supplemental 2[nd] defendant in that suit, stands dismissed. 2. Heard the learned counsel for the petitioner/defendant. 3. O.S.No.890 of 2010 is one filed by the respondent/ plaintiff seeking a permanent prohibitory injunction restraining the defendant or her men from trespassing into the plaint schedule property having an extent of 1.80 cents in Ward No.4, Block No.9 of Koppam Amsom Desom of Palakkad District and from altering its nature. The relief sought for in the suit was O.P.(C)No.2948 of 2017 :-2-: opposed by the defendant by filing Ext.P2 written statement. The plaintiff filed I.A.No.3149 of 2010 seeking an order of temporary injunction. The said application ended in dismissal by Ext.P3 order dated 14.12.2010. Challenging the said order, the plaintiff filed C.M.A.No.5 of 2011 before the District Court, Palakkad, which was disposed of with a direction to the Munsiff's Court to dispose of the suit expeditiously. Thereafter, the plaintiff had filed I.A.No.3859 of 2015, under Order VI, Rule 17 of the Code seeking an order to amend the plaint by adding a new relief of recovery of possession. Though the defendant filed objections, the court below allowed the said application. The said order was under challenge in O.P.(C)No.1884 of 2016 filed by the defendant, which ended in dismissal by Ext.P4 judgment dated 19.1.2017. R.P.No.129 of 2017 filed by the defendant seeking review of Ext.P4 judgment also ended in dismissal. 4. On 7.7.2017, the defendant filed I.A.No.2370 of 2017 seeking an order to implead one C.K. Balan, the alleged vendor of the plaint schedule property, as supplemental second defendant. The said Balan is the brother of the plaintiff. In the plaint, the O.P.(C)No.2948 of 2017 :-3-: plaintiff is claiming right over the plaint schedule property by way of a registered Will bearing No.105 of 2000 of the Sub Registrar Office, Palakkad, alleged to have been executed by his father. 5. According to the defendant, she had purchased the property inclusive of the plaint schedule property from C.K. Balan by virtue of document No.4147 of 2009 of the Sub Registrar Office, Palakkad. The said Balan obtained the property by virtue of registered Wills alleged to have been executed by his parents and aunt, and the plaintiff had also acknowledged and approved those Wills executed in favour of his brother. Since the defendant is totally unacquainted with those facts, the aforesaid C.K. Balan, who is a necessary party to the suit, was sought to be impleaded as supplemental second defendant. 6. The plaintiff did not file any objections to I.A.No.2370 of 2017. The court below dismissed the said application by Ext.P6 order dated 14.9.2017 holding that C.K. Balan, who is a legatee in the Will executed by his parents and aunt, is not a necessary party to the suit and that, if either party wants to adduce evidence, they can examine him as a witness. O.P.(C)No.2948 of 2017 :-4-: 7. Order I, Rule 10(2) of the Code provides that, the court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 8. Therefore, Order I, Rule 10(2) of the Code enables the court to add a 'necessary party' or a 'proper party' so as to effectually and completely adjudicate upon and settle all the questions involved in the suit. Under the said provision, the court is given the discretion to add as a party, any person who is found to be a 'necessary party' or a 'proper party'. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed by the court. If a 'necessary party' is not impleaded, the suit itself is liable to be O.P.(C)No.2948 of 2017 :-5-: dismissed. On the other hand, a 'proper party' is a person (though not a necessary party) whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a 'proper party' or a 'necessary party', the court has no jurisdiction to implead such person, invoking its powers under Order I, Rule 10(2) of the Code. Therefore, even in a case where the relief sought for in an application filed under Order I, Rule 10 (2) of the Code is not opposed, the discretion of the court can be exercised only if such person is found to be a 'proper party' or a 'necessary party' to the suit. 9. In the instant case, after considering the pleadings and materials on record, the court below found that C.K. Balan, who is the brother of the plaintiff and legatee in the Will executed by his parents and aunt, is not a necessary party to the suit. The court below has also observed that, if either party wants to adduce evidence, they can examine him as a witness. 10. In **Shalini Shyam Shetty v. Rajendra Shankar Patil** O.P.(C)No.2948 of 2017 :-6-: **[(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 11. In **Sobhana Nair K.N. v. Shaji S.G. Nair (2016 (1) KHC 1)** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is O.P.(C)No.2948 of 2017 :-7-: called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 12. Viewed in the light of the law laid down in the decisions referred to _supra_ , the reasoning of the court below in Ext.P6 order while rejecting I.A.No.2370/2017 cannot be termed either perverse or patently illegal, warranting interference of this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. In the result, this original petition fails and the same is accordingly dismissed. Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/ //True copy// P.A.to Judge