IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932
OP(C).No. 813 of 2010(O)
-----------------------AGAINST THE ORDER DATED 25/09/2010 IN IA 889/2010 IN OS.115/2008 of SUB COURT, PERUMBAVOOR
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PETITIONERS
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1. SHINY, AGED 47 YEARS, W/O.RAPHAEL, CHULLY HOUSE, AIMURY KARA, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN - 683 544.
2. RAPHAEL, AGED 48 YEARS, S/O.OUSEPH, CHULLY HOUSE, AIMURY KARA, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN - 683 544.
BY ADV. SRI.G.RAJAGOPAL SMT.S.LEELALAKSHMI
RESPONDENT(S):
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1. K.V.SURENDRAN, AGED ABOUT 52 YEARS, S/O.KANNAN, VALLOOR AKATHOOTTU HOUSE, KEEZHMADU KARA, ERUMATHALA P.O., ALUVA EAST VILLAGE, PIN - 683 544.
2. SAJITHA SURENDRAN, AGED ABOUT 47 YEARS, W/O.K.V.SURENDRAN, VALLOOR AKATHOOTTU HOUSE, KEEZHMADU KARA, ALUVA EAST VILLAGE, PIN - 683 544.
3. K.C.MATHEW, AGED ABOUT 43 YEARS, S/O.CHEEKU, KAIMATHURUTHI HOUSE, PUTHENVELIKKARA KARA, PUTHENVELIKKARA VILLAGE, PUTHENVELIKKARA P.O., PARAVOOR TALUK, PIN -
4. ABDUL KAREEM, AGED ABOUT 59 YEARS, S/O.MUHAMMED, KUPPIYAN HOUSE, OKKAL KARA, CHELAMATTOM VILLAGE, KUNNATHUNADU TALUK, PIN -
ADV. SRI.BASIL MATHEW FOR R4
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO.813/2010
## APPENDIX
PETITIONERS' EXHIBITS:
EXT.P1 TRUE PHOTOCOPY OF THE PLAINT IN OS 115/2008 ON THE FILES OF SUB ORDER, PERUMBAVOOR
EXT.P2 TRUE PHOTOCOPY OF THE PLAINT IN OS 35/2009 ON THE FILES OF THE SUB COURT, ERNAKULAM
EXT.P3 TRUE PHOTOCOPY OF THE PLAN AND EPORT DATED 13.11.2009 FILED BY THE ADVOCATE COMMISSIONER APPOINTED IN OS NO.35/2009 ON THE FILES OF THE SUB COURT, PERUMBAVOOR
EXT.P4 TRUE PHOTOCOPY OF THE IMPLEADING PETITION IA NO.302/2010 FILED BY THE PETITIONERS HEREIN IN OS NO.115/2008 ON THE FILES OF THE SUB COURT, PERUMBAVOOR
EXT.P5 TRUE PHOTOCOPY OF THE IA NO.889/2010 IN OS 115/2008 ON THE FILES OF THE SUB COURT, PERUMBAVOOR
EXT.P6 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH RESPONDENT IN IA NO.889/2010 IN OS 115/2008 ON THE FILES OF SUB COURT, PERUMBAVOOR
EXT.P7 TRUE PHOTOCOPY OF THE ORDER DATED 25.09.2010 IN IA NO.889/2010 IN S 115/2008 ON THE FILES OF SUB COURT PERUMBAVOOR
//TRUE COPY//
## **THOMAS P. JOSEPH, J.**
**-------------------------------------O.P.(C) No.813 of 2010 -------------------------------------Dated this the 29[th] day of November, 2010.**
## **JUDGMENT**
Plaintiffs in O.S.No.115 of 2008 of the court of learned Sub Judge, Perumbavoor are the petitioner before me, aggrieved by Ext.P7, order dismissing an application for amendment of plaint and striking out name of respondent No.4 from the array of defendants. According to the petitioners, petitioner No.1 owned the suit property and executed a power of attorney in favour of respondent No.1 in connection with a money transaction petitioner No.2 had with respondent No.1 as security for the said transaction. But misusing that power of attorney respondent No.1 is said to have created sale deed in favour of respondent No.2, his wife who, in turn created assignment deed in favour of respondent No.3. Respondent No.3 filed O.S.No.260 of 2005 in the court of learned Munsiff, Perumbavoor against one Joy and his wife for fixation of boundary as if he is the owner in possession of the suit property. In that case petitioners got impleaded as additional defendant Nos.3 and 4. Petitioners filed O.S.No.115 of 2008 in the court of learned Sub Judge for declaration of title and possession of petitioner No.1 and, that the assignment deed created by respondent No.1 in favour of respondent No.2 or the assignment deed created by respondent No.2 in favour of respondent No.3 did not bind petitioner No.1 and the suit property and for other reliefs. Alleging that respondent No.4 has trespassed into a portion of the suit property, respondent No.3 sought impleadment of respondent No.4 as additional defendant No.5 in O.S.No.260 of 2005 and that application was allowed. On the request of petitioners,
**OP(C) No.813/2010**
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O.S.No.260 of 2005 filed in the court of learned Munsiff was transferred to the court of learned Sub Judge, Perumbavoor and renumbered as O.S.No.35 of 2009. Petitioners say that a joint trial of O.S.No.115 of 2008 and O.S.No.35 of 2009 was ordered. While so, the Advocate Commissioner submitted Ext.P3, report and plan which revealed that respondent No.4 is in possession of a portion of the suit property. Thereon petitioners filed I.A.No.302 of 2010 to implead respondent No.4 as additional defendant No.4 in O.S.No.115 of 2008. That application was allowed as per order dated 02.07.2010. Consequent to that impleadment petitioners filed I.A.No.889 of 2010 (in O.S.No.115 of 2008) for amendment of plaint to incorporate prayer for recovery of possession of portion of property found in the possession of respondent No.4. That application was objected by respondent No.4 contending that amendment would change nature and character of the suit and that petitioners have no right to seek any such amendment. The attempt of petitioners was to take possession of property belonging to respondent No.4, it was contended. Learned Sub Judge by Ext.P7, order dismissed I.A.No.889 of 2010 (for amendment of plaint in O.S.No.115 of 2008) and struck off the name of respondent No.4 from the array of parties in that suit. That order is under challenge.
2. Notice of this petition was served on counsel for respondents in the trial court as per order dated 22.11.2010. Counsel for petitioners have filed a memo stating that notice has been served on counsel stating that the case is
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posted in this Court, this day. There is however, no appearance for any of the respondents. Service of notice on counsel is sufficient in view of Rule 59 of the Kerala High Court Rules.
3. Question for consideration is whether Ext.P7 would stand legal scrutiny. It is not disputed that on the premise that respondent No.4 is a necessary party to the proceeding I.A.No.302 of 2010 was allowed on 02.07.2010 and he was impleaded as additional defendant No.4 in O.S.No.115 of 2008. It is when petitioners filed I.A.No.889 of 2010 for a consequential amendment of plaint in O.S.No.115 of 2008 to incorporate prayer for recovery of the possession of that portion of the property found in the possession of respondent No.4, that he raised an objection that amendment sought for is not to be allowed. That objection was upheld by learned Sub Judge. Not only I.A.No.889 of 2010 was dismissed but the learned Sub Judge also struck off name of respondent No.4 from the array of parties.
4. No doubt, the court has power under Order I Rule 10(2) of the Code of Civil Procedure to add or delete any person from the array of parties in the suit. Question for consideration is whether court below is justified in invoking that power on the facts of the case. In O.S.No.115 of 2008 petitioners are seeking a declaration that property belongs to them and that the assignment deed executed by respondent No.1 in favour of respondent No.2 and the assignment deed executed by respondent No.2 in favour of respondent No.3 is
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invalid. In otherwords, issue regarding title of petitioners is to be adjudicated in O.S.No.115 of 2008. Ext.P3, report shows that respondent No.4 is in possession of a portion of suit property. Certainly petitioner could recover possession of the suit property on the basis of title which is to be adjudicated in O.S.No.115 of 2008. If respondent No.4 is left out from the array of parties, petitioners may have to file a separate suit for recovery of possession against respondent No.4 on the strength of title. That involves multiplicity of suits and possibility of divergent findings on title. It also involves waste of time and energy. I must bear in mind that in O.S.No.35 of 2009 (originally filed in the court of learned Munsiff as O.S.No.260 of 2005) respondent No.4 has already been impleaded as a party and he is on record as additional defendant No.5. In such a situation it is proper that dispute on title of petitioners is adjudicated in the pending suit with respondent No.4 also as a party. Learned counsel for petitioners have placed reliance on the decision **Prem Lala Nahata v.**
**Chandi Prasad (2007 (1) KLT 910)** . In that case Supreme Court dealt with the issue regarding non-joinder and mis-joinder of parties and cause of action and consolidation of the suits. In paragraph 13, it is held that issue regarding non-joinder of necessary parties and mis-joinder of parties are more in the relam of procedure and not affecting the substantive right of parties. I must bear in mind that in O.S.No.35 of 2010 respondent No.4 has already been impleaded as additional defendant No.5 on the request of respondent No.3 who
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filed that suit for fixation of boundary and other reliefs. Necessarily respondent No.4 has been impleaded in the suit because of his presence in the suit property as reported by the Advocate Commissioner. If that be so, there is no reason why the same stand should not be applied in O.S.No.35 of 2005.
5. I am not inclined to think that the amendment if allowed would change nature and character of the suit. Petitioners have prayed for a declaration of their title and possession and when it was found that a third party is in possession of a portion of the suit property they wanted to amend the plaint to incorporate a prayer for recovery of possession of that portion. Amendment is necessary to adjudicate the dispute between the parties and to avoid multiplicity of suits. Having regard to the facts and circumstances of the case I am inclined to think that learned Sub Judge ought to have allowed I.A.No.889 of 2010 and permitted amendment of the plaint. In that view Ext.P7, order is liable to be set aside and I.A.No.889 of 2010 is to be allowed.
Resultantly this petition is allowed in the following lines:
i. Ext.P7, order dismissing I.A.No.887 of 2010 is set aside and that application will stand allowed.
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ii. Petitioners are allowed to amend the plaint as prayed for in I.A.No.889 of 2010. Amendment shall be carried out within 14 days of receipt of a copy of this judgment in the court below.
iii. Respondent No.4 whose name has been deleted from the array of parties is brought back to his position as additional defendant No.4.
iv. It will be open to the respondents to file written statement or additional written statement as the case may be in answer to the amended plaint.
**THOMAS P.JOSEPH, Judge.**
**cks**
