High Court of KeralaSingle Judge2020-11-02Dismissed

Vengara Appu v. The Karyavahak, RSS Karyalayam Kanhangad; Vivekananda Vidya Mandapam, Kanhangad; Gopalakrishnan; Konoth Pathazhapuryil Sunitha

Case / Petition Number:OP(C) No.216 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Narayana Pisharadi
Judgment Date: 2020-11-02
Court Decision / Holding: Consequently, the original petition is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Vengara Appu, aged 69 years, S/o Pulikodan Ambunhi and Kammadathu Amma, residing at Hosdurg, Hosdurg Village, Hosdurg Taluk, Kanhangad Post, Kasaragod District

Respondents

The Karyavahak, RSS Karyalayam Kanhangad, Hosdurg Village, Hosdurg Taluk, Kanhangad Post
Vivekananda Vidya Mandapam, Dev an Road, Kanhangad, represented by its correspondent/manager
Gopalakrishnan, aged 45 years, residing at RSS Karyalayam, Kanhangad, Hosdurg Village, Hosdurg Taluk, Kanhangad-Post
Konoth Pathazhapurayil Sunitha, aged 44 years, D/o Sarojini Amma, residing at Lakshmi Nivas, Ball a Village, Hosdurg Taluk, Kasaragod District

Legal Representation & Advocates

Counsels for Petitioners

• Adv. A. Arunkumar

Counsels for Respondents

• Adv. SMT. N. Shobha
• Adv. Sri K. Shrihari Rao

Case Synopsis & Summary

This High Court of Kerala, in OP(C) No.216 of 2016, examines whether the plaintiff can compel the impleadment of the Janakshema Samithi, alleged to manage the plaint B schedule property, or whether the suit should proceed with the existing parties. The second plaintiff, Vengara Appu, files this challenge under Article 227 to orders of the Munsiff Court, Hosdurg in OS 124/2009, which dealt with applications to implead the Samithi and to obtain the chairman’s name and address. The court below rejected several interlocutory applications (Exts. P3, P2, P9; P5, P6, P7) on grounds of non-joinder and default, and ultimately dismissed them. The respondents contend that the Samithi is a necessary party and that the existence or address of its chairman is relevant for proper service and joinder. The petitioner argues that the suit can proceed by suing in official capacity and that the plaintiffs are not obligated to identify the supplemental defendants; authorities cited include Meghavaranam Naidu, Visalakshi Achi and Narain Pandey to support non-necessity of exhaustive joinder. The High Court finds no illegality in the lower court’s orders and dismisses the petition, indicating that the plaintiff’s remedies lie in appropriate proceedings if any new orders are sought.

Provisions of Law Cited

Order 1 Rule 9, CPC, 1908Article 227, Constitution of India

Legal Doctrines & Maxims

Non-joinder of necessary parties
Suing in official capacity is sufficient (office-bearer sufficiency)
Meghavaranam Naidu v. A. M. Mahommad Mohideen Sahib — identification of supplemental defendants not incumbent on plaintiffs
Visalakshi Achi v. Seenivasan — requirement of specific plea for non-joinder
Narain Pandey v. Surajbhan Lal — need to specify who ought to be joined and what is their interest

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the suit seeks to protect property described in the plaint B schedule by injunctions and that the Janakshema Samithi, represented by its chairman, should be impleaded, as the Samithi allegedly manages the property. The petitioner argues that misjoinder or non-joinder cannot defeat the suit, and that suing in official capacity may be sufficient. Ext.P3 and Ext.P7 sought to compel the defendants to reveal the Chairman’s name and address; however, the court below recorded that there was no such post or knowledge of a Chairman and dismissed these applications as not genuine. The applicants rely on Meghavaranam Naidu to argue that plaintiffs need not undertake independent research to identify supplemental defendants, and that the lack of knowledge of the Chairman cannot defeat the suit’s prosecution. The petition argues that the lower court’s approach to require identity is contrary to well-settled practice and the principles of fairness in joinder.

Contentions of Respondents

The respondents urge that Janakshema Samithi is a necessary party for proper management of the plaint B schedule property; they allege that the Samithi’s status and whether it has a Chairman are relevant to the case. They contend that the court below correctly refused to compel disclosure of a Chairman’s name/address when such a post purportedly does not exist or is unknown to the respondents. They maintain that the suit cannot proceed without proper joinder and that misjoinder or non-joinder cannot be resolved on extraneous considerations. They also submit that the party’s rights should be enforced by challenging the order through appropriate proceedings rather than forcing the defendants to reveal unavailable information.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Visalakshi Achi v. Seenivasan	1999 (3) CTC 57	Mentioned Only	Cited to illustrate the requirement of specific plea when challenging non-joinder.
Narain Pandey v. Surajbhan Lal	AIR 1937 Pat 414	Mentioned Only	Cited to show that objections to non-joinder must specify who should be joined and the nature of their interest.
Meghavaranam Naidu v. A. M. Mahommad Mohideen Sahib	AIR 1936 Mad 782	Positive	Applied to support the proposition that plaintiffs need not search for supplemental defendants; observations applied to the present case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942** ## **OP(C).No.216 OF 2016(O)** **OS 124/2009 OF MUNSIFF COURT, HOSDRUG** ## **PETITIONER/2ND PLAINTIFF:** **VENGARA APPU AGED 69 YEARS S/O.PULIKODAN AMBUNHI AND KAMMADATHU AMMA, RESIDING AT HOSDURG, HOSDURG VILLAGE, HOSDURG TALUK, KANHANGAD POST, KASARAGOD DISTRICT.** **BY ADV. SRI.A.ARUNKUMAR** ## **RESPONDENTS/DEFENDANTS AND 1ST PLAINTIFF:** - **1 THE KARYAVAHAK, RSS KARYALAYAM KANHANGAD, HOSDURG VILLAGE OF HOSDURG TALUK, KANHANGAD POST.** - **2 VIVEKANANDA VIDYA MANDAPAM DEVAN ROAD, KANHANGAD, REPRESENTED BY ITS CORRESPONDENT/MANAGER HAVING ITS OFFICE AT HOSDURG, HOSDURG VILLAGE, HOSDURG TALUK,POST-KANHANGAD.** - **3 GOPALAKRISHNAN, AGED 45 YEARS** **FATHER'S NAME NOT KNOWN, RESIDIG AT RSS KARYALAYAM, KANHANGAD, HOSDURG VILLAGE OF HOSDURG TALUK,KANHANGAD-POST.** - **4 KONOTH PATHAZHAPURAYIL SUNITHA, AGED 44 YEARS** - **D/O.SAROJINI AMMA, HINDU, HOUSEHOLD,RESIDING AT "LAKSHMI NIVAS", BALLA VILLAGE,HOSDURG TALUK, KASARGOD DISTRICT.** **R1-3 BY ADV. SMT.N.SHOBHA R1-3 BY ADV. SRI.K.SHRIHARI RAO** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27-10-2020, THE COURT ON 02-11-2020 DELIVERED THE FOLLOWING:** O.P.(C) No.216/2016 2 ## **R.NARAYANA PISHARADI, J** ************************ ## O.P.(C) No.216 of 2016 ---------------------------------------------Dated this the 2[nd] day of November, 2020 ## **J U D G M E N T** The petitioner is the second plaintiff and respondents 1 to 3 are the defendants in the suit O.S.No.124/2009 on the file of the Munsiff's Court, Hosdurg. The fourth respondent is the first plaintiff in the suit. 2. The suit is instituted for granting a decree of prohibitory injunction as well as mandatory injunction. The dispute in the suit relates to the property described in the plaint B schedule. 3. The defendants filed written statement in the suit. One of the contentions raised by them in the written statement is that they are unnecessary parties to the suit and that the plaint B schedule property belongs to a public charitable trust by name 'Janakshema Samithi' and the maintenance and management of O.P.(C) No.216/2016 3 the plaint B schedule property are being done by that Samithi. 4. The plaintiffs filed an application as I.A.No.1988/2012 (Ext.P2) to implead the “Janakshema Samithi, represented by its Chairman” as the additional fourth defendant in the suit. It is alleged that the trial court then directed the plaintiffs to furnish the name and address of the Chairman of the 'Janakshema Samithi'. The plaintiffs then filed an application as I.A.No.2018/2012 (Ext.P3) to issue direction to the defendants to furnish the address of the Chairman of the 'Janakshema Samithi'. The defendants filed objection to Ext.P3 application contending that they were not aware of the existence of any post of Chairman in the 'Janakshema Samithi' and that they were also not aware of the name and address of any such Chairman. 5. As per Ext.P5 order dated 22.10.2012, the court below dismissed Ext.P3 application. As per Ext.P6 order dated 27.10.2012, the court below dismissed Ext.P2 application for default. 6. The suit was later dismissed for default and thereafter, it was restored to file. Then the plaintiffs again filed an O.P.(C) No.216/2016 4 application as I.A.No.1853/2014 (Ext.P7) to direct the defendants to furnish the address of the person in charge of the 'Janakshema Samithi'. The defendants filed objection to Ext.P7 application, contending that the plaintiffs can sue a legal body in the name of its office-bearers and that the defendants were not aware of the name of the Chairman of the 'Janakshema Samithi'. 7. As per Ext.P9 order dated 04.07.2015, the court below dismissed Ext.P7 application. 8. The second plaintiff has filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Exts.P5, P6 and P9 orders. 9. Heard learned counsel for the petitioner and also respondents 1 to 3. 10. Order 1 Rule 9 of the Code of Civil Procedure, 1908 states that, no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It is provided that nothing in this rule shall apply to non-joinder of a necessary O.P.(C) No.216/2016 5 party. 11. I have perused the written statement filed by the defendants. They have not raised any specific plea that the suit is bad for non-joinder of necessary parties. On the other hand, they have only stated in the written statement that the plaint B schedule property belongs to a public charitable trust namely 'Janakshema Samithi' and that the maintenance and management of the plaint B schedule property are being done by the 'Janakshema Samithi' and that the defendants are unnecessary parties to the suit and also that the suit is bad for misjoinder of parties. 12. The court below has stated in Ext.P5 order as follows: _“Even according to the applicants, they do not know the name and address of the Chairman of the Samithi namely, Janakshema Samithi. It is not in dispute that the respondents herein have contended that the Committee namely, Janakshema Samithi is a necessary party to the suit. The averments in the statements of objection filed by the respondents clearly indicate that there is no post of Chairman in the said committee and that they do not know the address of the Chairman. In the_ O.P.(C) No.216/2016 6 _above circumstances, I do not think that the contention raised by the respondents in their written statement is genuine and bona fide. They have no case that the said Samithi or committee has been registered as per law. In the above circumstances, I do not think that the respondents can be directed to furnish the address of the Chairman of the said Samithi.”_ 13. It is true that, the lower court has indicated in Ext.P5 order that the defendants have raised a plea of non-joinder of necessary parties. Apart from that, learned counsel for the petitioner has not pointed out any illegality or impropriety in Ext.P5 order. Learned counsel for the petitioner has not explained how the defendants could be compelled to furnish the name and address of a person which they do not know. 14. If the defendant wants to raise a plea of non-joinder of necessary parties, the written statement shall contain a specific plea to that effect (See **Visalakshi Achi v. Seenivasan :1999** **(3) CTC 57** ). Where a defendant objects to the maintainability of a suit on the ground of non-joinder of necessary parties, he should specifically state as to who are the persons who ought to O.P.(C) No.216/2016 7 have been impleaded but are not so impleaded (See **Narain Pandey v. Surajbhan Lal : AIR 1937 Pat 414** ). If the defendants wish to object to a suit on the ground of non-joinder of parties, they have to state who are the parties that should have been joined and what is the nature of their interest in the suit (See **Meghavaranam Naidu v. A.M. Mahommad Mohideen Sahib : AIR 1936 Mad 782** ). 15. The above principles do not apply to the facts of the present case because the defendants have not raised any specific plea that the suit is bad for non-joinder of necessary parties. 16. Ext.P6 order passed by the court below reads as follows: _“The applicant is absent, no representation. The applicant has not complied with the direction of the Court, vide order dated, 3.10.2012. Hence the application is dismissed for default. No costs.”_ 17. I find no illegality or impropriety in Ext.P6 order by which the court below dismissed Ext.P2 application for default on account of the absence of the plaintiffs. O.P.(C) No.216/2016 8 18. Ext.P7 application was dismissed by the court below as per Ext.P9 order for the reason that the application for the same relief was earlier dismissed by it. There is no impropriety or illegality in Ext.P9 order also. ## 19. In **Meghavaranam Naidu** (supra), it has been held as follows: _“I do not think that it was incumbent on the plaintiffs to make researches to discover the identity of supplemental defendants who in their opinion were not necessary, at any rate until the defendants raising the objection had given such information as would enable the plaintiffs to implead them. No do I think that it was necessary for the plaintiffs to take the trouble themselves by serving interrogatories upon the defendants to ascertain the names of possible supplemental defendants”._ ## 20. The above observations squarely apply to the facts of ## the present case. ## 21. It is stated in the original petition as follows: _“Learned Munsiff ought not to have directed the petitioner to furnish the name and address of the chairman of the said Samithi. The name of the_ O.P.(C) No.216/2016 9 _Office bearer is irrelevant and suing in the official capacity is sufficient.”_ 22. At this juncture, it is to be noted that Ext.P2 application was dismissed by the lower court on account of the absence of the plaintiffs in the court on the date of hearing of the application. Though it is stated in Ext.P6 order that the applicant did not comply with the direction of the court dated 03.10.2012, the petitioner has not produced any material before this Court to show the nature of the direction given by the court. No such order passed by the learned Munsiff has been produced by the petitioner. If any such order has been passed or direction has been given by the lower court, the petitioner is at liberty, if advised, to challenge the same in appropriate proceedings. 23. In the aforesaid circumstances, there is no merit in the original petition and it is liable to be dismissed. Consequently, the original petition is dismissed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr O.P.(C) No.216/2016 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PLAINT IN OS NO.124 OF 2009 ON THE FILES OF THE COURT OF THE MUNSIFF'S OF HOSDURG.** **EXHIBIT P2 A TRUE COPY OF IA NO.1988 OF 2012 FILED BY THE PETITIONER DATED 28.9.2012** **EXHIBIT P3 A TRUE COPY OF IA NO.2018 OF 2012 FILED BY THE PETITIONER DATED 3.10.2012 EXHIBIT P4 A TRUE COPY OF THE COUNTER FILED BY THE RESPONDENTS 1 TO 3 TO IA NO.2018 OF 2012** **EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 22.10.2012 IN IA NO.2018 OF 2012 PASSED BY THE MUNSIFF OF HOSDURG EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 27.10.2012 IN IA NO.1988 OF 2012 PASSED BY THE MUNSIFF OF HOSDURG. EXHIBIT P7 A TRUE COPY OF IA NO.1853 OF 2014 FILED BY THE PETITIONER EXHIBIT P8 A TRUE COPY OF THE COUNTER TO IA NO.1853 OF 2014 FILED BY THE RESPONDENTS 1 TO 3** **EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 4.7.2015 IN IA NO.1853 OF 2014.** **RSPONDENTS' EXHIBITS : NIL** **TRUE COPY** **PS TO JUDGE**