Tharappan v. Prathapan and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 ``` ## **`OP(C) NO. 855 OF 2023`** ## **`I.A NO.10/2022 IN OS 881/2021 OF II ADDITIONAL MUNSIFF COURT,`** ## **`ERNAKULAM`** ## **`PETITIONER/PETITIONER IN IA:`** ``` THARAPPAN AGED 73 YEARS S/O. AYYAPPAN, KUNNAPPILLY HOUSE, KANGARAPPADY, THRIKKAKKARA NORTH VILLAGE, VADACODE PO, ERNAKULAM DISTRICT, PIN - 682021 ``` ``` BY ADV N.M.MOHAMMED AYUB ``` ## **`RESPONDENTS/RESPONDENTS IN IA/PLAINTIFF AND DEFENDANTS:`** ``` 1PRATHAPAN AGED 58 YEARS S/O.LATE THANKAPPAN, KUNNAPPILLY HOUSE, KANGARAPPADY, THRIKKAKKARA NORTH VILLAGE, VADACODE PO, ERNAKULAM DISTRICT, PIN - 682021 2STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION, KAKKANADU, PIN - 682030 3DISTRICT COLLECTOR ERNAKULAM DISTRICT, CIVIL STATION, KAKKANADU, PIN - 682030 4KALAMASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, CHANGAMPUZHA NAGAR PO, PIN – 682033 GOVERNMENT PLEADER SRI. T. JAYAN SRI.M.K. ABOOBACKER ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`OP(C) NO. 855 OF 2023 2`** ## **Dated this the 4[th] day of April, 2023** ## **JUDGMENT** Aggrieved and displeased with Ext.P10 order passed in I.A No.10/2022 in O.S. No.881/2021 by the Court of the Additional Munsiff -II, Ernakulam, the petitioner in the application has filed the original petition. The respondents are the plaintiff and defendants 1 to 3 in the suit. 2. The relevant background facts leading to the impugned Ext.P10 order, are:- (i) The first respondent has filed the suit against the respondents 2 to 4, for a decree of permanent prohibitory injunction. The respondents 2 to 4 are the defendants in the suit. (ii) The petitioner is a neighbour of the first respondent. When the first respondent encroached into a portion of the Government puramboke pond lying adjacent to the petitioner’s property, the ``` OP(C) NO. 855 OF 2023 3 ``` petitioner submitted Ext.P1 complaint before the third respondent to resume the puramboke land. However, the revenue officials were reluctant to act upon the said complaint because the first respondent is a member of a political party holding Revenue portfolio. Ultimately, due to the continuous follow up action made by the petitioner, the Taluk Surveyor had issued notice intimating that the measurement of the encroached land would be conducted on 27.02.2020. But, the measurement was not conducted. The fourth respondent Municipality has also not initiated any action against the alleged encroachment. (iii) Along with the suit, the first respondent has filed I.A. No. 5/2021, for an order of temporary injunction, to restrain the respondents 2 to 4 from trespassing into the plaint schedule property. The fourth respondent has filed a counter affidavit to the above application, inter- alia, contending that the suit ## **`OP(C) NO. 855 OF 2023 4`** is bad for non-joinder of necessary parties. (iv) Hence, the petitioner filed I.A. No.10/2022 (Ext.P8) to get himself impleaded as an additional defendant in the suit. The application was opposed by the first respondent through Ext.P9 counter affidavit. (v) The court below, by the impugned Ext.P10 order, has rejected Ext.P8 application. (vi) Ext.P10 is per se erroneous, improper and unsustainable in law. Hence, the original petition. 3. Heard; Sri.Mohamed Ayub, the learned counsel appearing for the petitioner, the learned Government Pleader appearing for the respondents 2 and 3 and Sri.M.K.Aboobacker, the learned counsel appearing for the 4[th] respondent, on admission. 4. The question is, whether there is any error in Ext.P10 order. 5. The suit is filed by the first respondent against the respondents 2 to 4, seeking a decree of permanent ``` OP(C) NO. 855 OF 2023 5 ``` prohibitory injunction, who are the State and the local Municipality. Indisputably, no relief has been prayed for against the petitioner. Nonetheless, the petitioner filed Ext.P8 application to get himself impleaded in the suit, cardinally on the assertion that he was one who drove the attention of the respondents 2 to 4 regarding the encroachment of the Government land by the first respondent. 6. The petitioner’s grievance is that even though notices have been issued to conduct survey of the encroached property, no fruitful action has been taken in the above regard by the respondents 2 to 4. Further more, the petitioner is apprehensive that the first respondent being a member of the political party holding the Revenue portfolio in the present Government, there is a likelihood of the first respondent influencing the Government officials and they acting in cahoots with each other. Therefore, to ``` OP(C) NO. 855 OF 2023 6 ``` subserve the ends of justice, the petitioner be impleaded as additional defendant in the suit. 7. The application was opposed by the first respondent, inter alia, contending that the petitioner is an unnecessary party and the application is only to be rejected. 8. The court below, after adverting to the rival pleadings, and after relying on the law laid down by this Court in **Rajeevan P.C. and another v. Deputy Commissioner and others** [2020 (3) KLT 470] has concluded that the petitioner is not a necessary party for the proper adjudication of the suit. 9. A reading of Ext.P7 plaint establishes that the first respondent has claimed a decree of permanent prohibitory injunction against the respondents 2 to 4 from trespassing into the plaint schedule properties, putting up any construction, erecting boundary stones and from committing any waste therein. ## **`OP(C) NO. 855 OF 2023 7`** 10. The materials on record substantiate that the respondents 2 to 4 have filed separate written statements in the suit denying the assertions in the plaint, particularly the first respondent's claim over the disptued land. 11. The petitioner’s apprehension is that the respondents 2 to 4 may act hand in glove with the first respondent and not effectively contest the suit, to enable the first respondent to get a favourable decree. Hence, the petitioner may be impleaded as an additional defendant, to enable him to bring materials on record and substantiate that the first respondent is not entitled for the reliefs prayed for in the plaint. 12. In **Sudhamayee Pattnaik and Others v. Bibbu Prasad Sahoo and others** [2022 SCC online SC 1234], the Honourable Supreme Court has categorically held that the plaintiff is the dominus litis. A party can be added in a suit either at the instance of the plaintiff or ``` OP(C) NO. 855 OF 2023 8 ``` suo-motu by the court. A third party has no locus standi to get impleaded as additional party in the suit. Going by the pleadings and materials on record, especially the fact that no relief has been sought against the petitioner and the respondents 2 to 4 - the State and the Municipality – have already filed their respective written statements denying the allegations in the plaint, I completely agree with the court below that the petitioner is an unnecessary party to be impleaded as an additional defendant in the suit as provided under Order 1 Rule 10 of the Code of Civil Procedure, for the proper adjudication of the suit. The court below was perfectly justified in rejecting the petitioner’s request. There is no error in Ext.P10 order warranting interference by this Court by exercising the supervisory powers of this Court under Article 227 of the Constitution of India. This Court is certain that the third respondent would leave no stone unturned in ``` OP(C) NO. 855 OF 2023 9 ``` defending the suit, to protect the interest of the State and its properties. The attention of the third respondent shall be drawn to this judgment. The original petition is meritless and is hence dismissed. **Sd/-** **C.S.DIAS, JUDGE** rmm4/4/2023 ## **`OP(C) NO. 855 OF 2023 10`** ## **`APPENDIX OF OP(C) 855/2023`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1` ``` TRUE COPY OF THE COMPLAINT DATED 02-05- 2017 SUBMITTED BY THE PETITIONER, BEFORE THE DISTRICT COLLECTOR, ERNAKULAM, ALONG WITH ACKNOWLEDGEMENT ``` - `Exhibit P2 TRUE COPY OF NOTICE DATED 29-01-2020, ISSUED BY TALUK SURVEYOR, KANAYANNOOR TALUK` - `Exhibit P3 TRUE COPY OF NOTICE DATED 08-02-2021, ISSUED BY TALUK SURVEYOR, KANAYANNOOR TALUK` - `Exhibit P4 TRUE COPY OF LETTER DATED 12-03-2020, ISSUED BY TAHSILDAR (LAND RECORDS), KANAYANNOOR TALUK TO KALAMASSERY MUNICIPALITY` - `Exhibit P5 TRUE COPY OF THE LETTER DATED13-09-2021 ISSUED BY TAHSILDAR (LAND RECORDS) KANAYANNOOR TALUK TO KALAMASSERY MUNICIPALITY` - `Exhibit P6 TRUE COPY OF THE NOTICE DATED 25-102021 TO THE PETITIONER AND 1ST RESPONDENT` - `Exhibit P7 TRUE COPY OF PLAINT IN O.S.NO.881/2021 OF MUNSIFF'S COURT, ERNAKULAM` - `Exhibit P8 TRUE COPY OF I.A.NO.10/2022 FILED BY THE PETITIONER` - `Exhibit P9 TRUE COPY OF COUNTER AFFIDAVIT IN I.A.NO.10/2022, FILED BY THE 1ST RESPONDENT/ PLAINTIFF` - `Exhibit P10 TRUE COPY OF THE ORDER DATED 01-12-` ## **`OP(C) NO. 855 OF 2023 11`** ``` 2022, IN I.A.NO.10/2022 IN O.S.NO.881/2021 OF MUNSIFF'S COURT, ERNAKULAM ``` ``` Exhibit P11TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.5/2021, IN O.S.NO.881/2021 OF MUNSIFF'S COURT, ERNAKULAM, FILED BY 4TH RESPONDENT KALAMASSERY MUNICIPALITY ```