Muthayya v. Ramani and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2022-11-02
Court Decision / Holding: Ext P11 order confirmed; observations in paragraph 6 of Ext P11 expunged; petitioner would be at liberty to pursue remedies in accordance with law if so advised.
Final Disposition: Original petition disposed; Ext P11 order confirmed; observations in paragraph 6 expunged; petitioner may pursue remedies as per law if needed.

Parties to the Case

Appellants / Petitioners

Muthayya

Respondents

Ramani
Sudharma
Manoharan
K.G. Thankappan
Annamma Pushkaran
Anil Pushkaran
Anitha Pushkaran

Legal Representation & Advocates

Counsels for Petitioners

• P.K. Ravi Sankar

Counsels for Respondents

• Adarsh S
• K.C. Sudheer
• Govind Chandrabhanu
• C. H. Chandrabhanu
• V. N. Subhangan

Case Synopsis & Summary

This original petition under Article 227 of the Constitution of India challenges Ext P11, the order in IA 1/2020 in FDA 2149/2017 in OS 928/2013 before the Additional Munsiff, Alappuzha. The suit is a partition action between the plaintiffs and defendants; a preliminary decree was passed on 23 February 2017; an Advocate Commissioner prepared a report for partition by metes and bounds, which, during measurement, included the petitioner's land (92 cents) in Kalavoor Village. The petitioner, claiming mislocation in the commission report, moved IA 1/2020 to be impleaded, IA 2/2020 to stay final decree proceedings, and IA 3/2020 to set aside the commission report. The court below dismissed these applications. The petitioner contends that he is a necessary party to ensure his rights are protected; the respondents challenge his status, arguing he is a stranger to the suit. The High Court, after examining the pleadings and law, notes that Sudhamayee Pattnaik v. Bihu Prasad Sahoo and others (2022) SCC Online SC 1234 holds that the plaintiff is dominus litis and that there are only two modes to implead a party (Order 1 Rule 10 CPC, or at the instance of the Court). It holds the petitioner is an unnecessary party to the final decree proceedings, yet admonishes that the observations in Ext P11 para 6 are unwarranted and must be expunged. The court disposes by confirming Ext P11 and leaving open remedies for the petitioner if required.

Provisions of Law Cited

Order 1 Rule 10 of the Code of Civil Procedure, 1908Article 227 of the Constitution of India

Legal Doctrines & Maxims

Dominus litis

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that, as a third party to the partition suit (OS 928/2013), his property (92 cents) was inadvertently included in the Advocate Commissioner’s report. He moved IA 1/2020 for impleadment, IA 2/2020 to stay the final decree, and IA 3/2020 to set aside the commission report. He contends his rights require protection and that the final decree proceedings should not proceed without addressing his claim. The relief sought was to correct the record and safeguard his interests within due process, relying on procedural avenues for impleadment.

Contentions of Respondents

The respondents contend that the petitioner is not a necessary party to the final decree proceedings and that the court below properly dismissed IA 1/2020–IA 3/2020 as improper or unnecessary, arguing the petitioner’s interest did not require his participation in the final decree process.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sudhamayee Pattnaik and others vs. Bihu Prasad Sahoo and others	2022 SCC Online SC 1234	Positive	Cited to support the principle that a plaintiff is the dominus litis and to outline the modes of impleading a party (Order 1 Rule 10 CPC or at the instance of the Court). The decision underpins the court’s view that the petitioner is not a necessary party in the final decree proceedings.

Extracted Judgment Text

Exact text extracted from official judgment records.

1 OP(C) No.217 of 2022 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944 ``` ``` OP(C) NO. 217 OF 2022 ``` ## **`AGAINST THE ORDER/JUDGMENT IN IA 1/2020 IN FDA 2149/2017 IN OS 928/2013 OF THE`** ``` COURT OF THE ADDITIONAL MUNSIFF,ALAPPUZHA ``` ## **`PETITIONER/S:`** ``` MUTHAYYA,AGED 70 YEARS,SON OF KESAVAN, KOOTHUVELIYIL, KATTOOR MURI, KALAVOOR VILLAGE - POST, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT, PIN - 688522 ``` ``` BY ADV P.K.RAVISANKAR ``` ## **`RESPONDENT/S:`** **==> picture [391 x 324] intentionally omitted <==** **----- Start of picture text -----** 1 RAMANI,AGED 73 YEARS,DAUGHTER OF JANARDHANAN, ALUNKAL THARAYIL, PADINJATTINKARA SOUTH MURI, THURAVOOR SOUTH MURI, FROM KOOTHAKKARA, KATTOOR MURI,KALAVOOR VILLAGE-POST, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT, PIN - 688522 2 SUDHARMA,AGED 62 YEARS,DAUGHTER OF JANARDHANAN, KOOTHAKKARA, KATTOOR MURI,KALAVOOR VILLAGE-POST, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT, PIN - 688522 3 MANOHARAN,AGED 60 YEARS,SON OF JANARDHANAN, KOOTHAKKARA, KATTOOR MURI,KALAVOOR VILLAGE-POST, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT, PIN - 688522 4 K.G. THANKAPPAN,AGED 62 YEARS,SON OF JANARDHANAN, KALARICKAYIL HOUSE, FROM KOOTHAKKARA HOUSE, THRIKKODITHANAM, KOTTA MURI,PAYIPPAD VILLAGE-POST, CHANGANASSERY TALUK,KOTTAYAM DISTRICT,, PIN - 690514 5 ANNAMMA PUSHKARAN,WIFE OF PUSHKARAN,AGED 63 YEARS, ADIYANIL HOUSE, PERUMPALLI POST,MALLAPPALLI, PATHANAMTHITTA DISTRICT, PIN - 689585 6 ANIL PUSHKARAN,SON OF PUSHKARAN,AGED 39 YEARS, ADIYANIL HOUSE, PERUMPALLI POST,MALLAPPALLI, PATHANAMTHITTA DISTRICT, PIN - 689585 7 ANITHA PUSHKARAN,DAUGHTER OF PUSHKARAN, AGED 38 YEARS,ADIYANIL HOUSE, PERUMPALLI POST, MALLAPPALLI, PATHANAMTHITTA DISTRICT, PIN - 689585 BY ADVS. ADARSH S K.C.SUDHEER – R2, R4 AND R5 GOVIND CHANDRABHANU C.H.CHANDRABHANU(K/391/1984) - R1 V.N.SUBHANGAN(K/450/1983) **----- End of picture text -----** ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.217 of 2022 ## **C.S DIAS,J.** **--------------------------OP(C) No.217 of 2022** **----------------------------Dated this the 2[nd] day of November, 2022.** ## **JUDGMENT** Aggrieved by Ext P11 order passed in IA No.1/2020 in F.D.A No.2149/2017 in O.S No.928/2013 of the Court of the Additional Munsiff, Alappuzha, the petitioner in the application – a third party in the final decree application has filed the original petition. The respondents in the original petition are the plaintiffs and defendants in the suit. 2. The facts leading to Ext P11 order, in a nutshell, are: the petitioner is a third party to the suit, which is filed by the first respondent as against the respondents 2 to 7, for a decree of partition. The court below has passed Ext P2 preliminary decree on 23.2.2017. An Advocate Commissioner was 3 OP(C) No.217 of 2022 appointed to partition the property by metes and bounds with the assistance of a Surveyor. The petitioner is in possession of 92 cents of land in Kalavoor Village for the last 37 years. There was an earlier suit as OS No.948/1983 against the which was respondents’ predecessor-in-interest, dismissed by Ext P3 decree. While conducting the measurement of the properties, the Advocate Commissioner visited the property of the petitioner. It is then the petitioner learnt that his property is also included in the Commissioner’s report. Accordingly, the petitioner filed IA No.1/2020 (Ext P6), IA No.2/2020 (Ext P7) and IA No.3/2020 (Ext P8) to get himself impleaded in the final decree, to seek stay of the final decree proceedings and to set aside the commission report, respectively. The applications were resisted by the defendants 3 and 5 through Exts P9 and P10 objections. The court 4 OP(C) No.217 of 2022 below, without considering Ext P6 to P8 in their the Ext P11 proper perspective, by impugned common order has dismissed the applications. Ext P11 order is erroneous and wrong. Hence, the original petition. 3. Heard: Sri.P.K Ravi Sankar, the learned counsel appearing for the petitioner, Sri. C.H Chandrabhanu, the learned counsel appearing for the first respondent and Sri.K.C Sudheer, the learned counsel appearing for the respondents, 2, 4 and 5. 4. The question is whether there is any illegality in Ext P11 order. 5. On an analysis of the pleadings and materials on record, it is evident that the petitioner is a third party to the suit. It is his case that, while the Advocate Commissioner was deputed to partition the properties pursuant to Ext P2 decree, he has 5 OP(C) No.217 of 2022 erroneously included the petitioner’s property in the report. The petitioner desires to enlighten the court below on the mistake in the commission report. In the above background, he filed Ext P6 application to get himself impleaded, Ext P7 to stay the final decree proceedings and Ext P8 to set aside the commission report. 6. The Hon’ble Supreme Court in **Sudhamayee Pattnaik and others vs. Bihu Prasad Sahoo and others** [2022 SCC Online SC 1234] has categorically held that the plaintiff is the dominus litus of the suit. There are only two modes in which a person can get himself impleaded in a suit: (i) on an application of the plaintiff under Order 1 Rule 10 of the Code of Civil Procedure, and (ii) at the instance of the Court. 7. In the case at hand, the court below has found that the petitioner is a stranger to the 6 OP(C) No.217 of 2022 proceeding. Therefore, the court below held that the petitioner is not a necessary party to be impleaded in the suit. 8. Going by the law laid down in the aforecited decision, and taking note of the contentions in Ext P6 to P8 applications, I am of the definite view that the petitioner is an unnecessary party to the final decree proceedings. Nevertheless, I find that the observations made by the court below in paragraph 6 of Ext P11 order, that the contention of the petitioner that he has acquired right over the petition schedule properties as per Ext A1 is incorrect and he has no interest over the said property, are totally unwarranted and unnecessary in the context of the above applications because they are rendered without any adjudication. Therefore, I am of the firm view that the observations made in paragraph 6 have to be expunged leaving open the 7 OP(C) No.217 of 2022 right of the petitioner to work out his remedies, in accordance with law, in case of an exigency. In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I dispose of the original petition in the following manner: (i) Ext P11 order is confirmed. (ii) The observations made in paragraph 6 of Ext P11 order are expunged. (iii) The petitioner would be at liberty to work out his remedies, in accordance with law, in case of an exigency and if so advised. sd/- sks/2.11.2022 **C.S.DIAS, JUDGE** 8 OP(C) No.217 of 2022 ## **`APPENDIX OF OP(C) 217/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE PLAINT IN O.S. NO. 928`| ||`OF 2013 ON THE FILE OF ADDITIONAL`| ||`MUNSIFF, ALAPPUZHA`| |`Exhibit P2`|`TRUE COPY OF THE PRELIMINARY DECREE`| ||`DATED 23-2-2017 IN O.S. NO. 928 OF 2013`| ||`ON THE FILE OF ADDITIONAL MUNSIFF,`| ||`ALAPPUZHA`| |`Exhibit P3`|`TRUE COPY OF THE DECREE DATED 9-7-1984`| ||`IN O.S. NO. 948 OF 1983 ON THE FILE OF`| ||`ADDITIONAL MUNSIFF, ALAPPUZHA`| |`Exhibit P4`|`TRUE COPY OF THE REPORT OF THE ADVOCATE`| ||`COMMISSIONER TOGETHER WITH PLAN`| |`Exhibit P5`|`TRUE COPY OF THE FIELD REGISTER WITH`| ||`RESPECT TO RE-SURVEY NO. 314/9 OF`| ||`KALAVOOR VILLAGE`| |`Exhibit P6`|`TRUE COPY OF THE I.A. NO. 1 OF 2020 IN`| ||`F.D.A. NO. 2149 OF 2017 IN O.S. NO. 928`| ||`OF 2013 ON THE FILE OF ADDITIONAL`| ||`MUNSIFF, ALAPPUZHA`| |`Exhibit P7`|`TRUE COPY OF THE I.A. NOS. 2 OF 2020 IN`| ||`F.D.A. NO. 2149 OF 2017 IN O.S. NO. 928`| ||`OF 2013 ON THE FILE OF ADDITIONAL`| ||`MUNSIFF, ALAPPUZHA`| |`Exhibit P8`|`TRUE COPY OF THE I.A. NOS. 3 OF 2020 IN`| ||`F.D.A. NO. 2149 OF 2017 IN O.S. NO. 928`| ||`OF 2013 ON THE FILE OF ADDITIONAL`| ||`MUNSIFF, ALAPPUZHA`| |`Exhibit P9`|`TRUE COPY OF THE OBJECTIONS FILED BY THE`| ||`3RD DEFENDANT IN I.A. NO. 1 OF 2020 IN`| ||`F.D.A. NO. 2149 OF 2017 IN O.S. NO. 928`| ||`OF 2013 ON THE FILE OF ADDITIONAL`| ||`MUNSIFF, ALAPPUZHA`| |`Exhibit P10`|`TRUE COPY OF THE OBJECTIONS FILED BY THE`| ||`5TH DEFENDANT IN I.A. NO. 1 OF 2020 IN`| ||`F.D.A. NO. 2149 OF 2017 IN O.S. NO. 928`| ||`OF 2013 ON THE FILE OF ADDITIONAL`| ||`MUNSIFF, ALAPPUZHA`| |`Exhibit P11`|`CERTIFIED COPY OF THE ORDER DATED 18-12-`| ||`2021 IN I.A. NO. 1 OF 2020 IN F.D.A. NO.`| ||`2149 OF 2017 IN O.S. NO. 928 OF 2013 ON`| ||`THE FILE OF ADDITIONAL MUNSIFF,`| ||`ALAPPUZHA`| 9 OP(C) No.217 of 2022 ``` Exhibit P12CERTIFIED COPY OF THE ORDER DATED 18-12- 2021 IN I.A. NOS. 2 OF 2020 IN F.D.A. NO. 2149 OF 2017 IN O.S. NO. 928 OF 2013 ON THE FILE OF ADDITIONAL MUNSIFF, ALAPPUZHA Exhibit P13CERTIFIED COPY OF THE ORDER DATED 18-12- 2021 IN I.A. NO. 3 OF 2020 IN F.D.A. NO. 2149 OF 2017 IN O.S. NO. 928 OF 2013 ON THE FILE OF ADDITIONAL MUNSIFF, ALAPPUZHA ```