V.V. Ramachandran Nair v. K. Gopinadhan Nair and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933** **WP(C).No. 17552 of 2010(O)** **--------------------------** **OS.301/2007 of PRINCIPAL MUNSIFF COURT, CHERTHALA** **....................** ## **PETITIONER(S):** **------------------------** **V.V.RAMACHANDRAN NAIR, AGED 58 YEARS, S/O.VELAYUDHAN NAIR, VELLEVELIYIL, EZHUPUNNA MURI, EZHUPUNNA VILLAGE.** **BY ADVS. SRI.V.R.KESAVA KAIMAL, SRI.N.M.MADHU.** **RESPONDENT(S):** **----------------------------** **1. K.GOPINADHAN NAIR, MANJUSHA HOUSE,KARPURAMCHERI, VADAKKEVILA VILLAGE, KOLLAM-691 010.** **2. K.MOHANAN NAIR, S/O.KUMARAN NAIR, ISWARYA (H.NO.10/1852), VATTIYOORKAVU DESOM, VATTIYOORKAVU.P.O, PEROORKADA VILLAGE, THIRUVANANTHAPURAM-695 005.** **3. DR.K.BALAKRISHNAN NAIR, S/O.KUMARAN NAIR, K.N.R.H.32, GOKULAM, POOJAPPURA DESOM, THIRUMALA VILLAGE, THIRUVANANTHAPURAM TALUK, 695 012.** **4. K.VIJAYAN NAIR, S/O.KUMARAN NAIR, KAMALALAYAM, KAIKULANGARA NORTH DESOM, KOLLAM TALUK, KOLLAM WEST VILLAGE, 691 001.** **R1 TO R4 BY ADV. SRI.D.AJITHKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.17552/2010 O** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE PLAINT IN O.S.301/2007 ON THE FILES OF PRINCIPAL MUNSIFF COURT OF CHERTHALA.** - **P2: COPY OF THE WRITTEN STATEMENT DTD. 07/09/2007 FILED BY THE 1ST RESPONDENT.** - **P3: COPY OF THE PETITION DTD. 22/02/08 IN I.A.910/08 FILED BY THE PETITIONER.** - **P4: COPY OF THE PETITION DTD. 14/07/2008 IN I.A.2475/2008 FILED BY THE PETITIONER.** - **P5: COPY OF THE OBJECTION DTD. 25/08/08 TO EXT.P4 FILED BY THE COUNSEL FOR THE 1ST RESPONDENT.** - **P6: COPY OF THE ORDER DTD. 06/04/2009.** - **P7: COPY OF THE PETITION DTD. 02/07/2009 IN I.A.1892/2009 FILED BY THE PETITIONER.** - **P8: COPY OF THE ORDER DTD. 07/01/2010.** - **P9: COPY OF THE PETITION DTD. 18/01/2010 IN I.A.207/2010 FILED BY THE PETITIONER.** - **P10: COPY OF THE OBJECTION DTD. 15/02/2010 TO EXT.P9 FILED BY THE COUNSEL FOR THE RESPONDENTS.** - **P11: COPY OF THE ORDER DTD. 29/03/2010.** ## **RESPONDENT'S EXHIBITS: N I L** ## **/TRUE COPY/** ## **P.S.TO JUDGE** **Kss** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.17552 of 2010 ==================================== Dated this the 01[st] day of August, 2011** ## **J U D G M E N T** Petitioner is the plaintiff in O.S.No.301 of 2007 of the court of learned Munsiff, Cherthala. That is a suit for prohibitory injunction to restrain the original sole defendant (first respondent) alienating the property or dispossessing petitioner who claimed to be in possession of the said property under an irrevocable licence obtained from one Kumaran Nair who is stated to be the title holder of the properties. First respondent contended in Ext.P2, written statement that one Krishnan Nair had constructed a building on behalf of the real owner and that as per a licence, petitioner is in occupation of the premises which first respondent claimed, is being withdrawn. He also contended, without giving details, that the suit is bad for non-joinder of necessary parties. 2. Petitioner filed Ext.P3, application for impleadment of other legal representatives of Kumaran Nair as additional defendants 2 to 4. That application was styled as one under Order VI Rule 17 of the Code of Civil Procedure (for short, “the Code”). It appears, wisdom dawned on petitioner later and thereon he **W.P(C) No.17552 of 2010** ## -: 2 :- preferred application for the said relief under Order I Rule 10(2) of the Code. That application was objected by the first respondent contending that the property is already transferred to one Sasikumar (in the meantime interim order of injunction against alienation and dispossession was modified as confining to dispossession alone). On Ext.P4, application (Ext.P3, application remaining undisposed of) learned Munsiff passed Ext.P6, order dismissing the application but giving liberty to the petitioner to file fresh application for impleadment (obviously taking note of the subsequent transfer in favour of Sasikumar). Then came Ext.P7, application for review of Ext.P6, order. But that application was not accompanied by a copy of the order (of Ext.P6) sought to be reviewed. Though for not that reason learned Munsiff dismissed Ext.P7, application by Ext.P8, order stating that the said application is time barred since it was not filed within 30 days of Ext.P6, order. Things did not end there. Petitioner filed Ext.P9, application for review of Ext.P8, order. I am told that along with that application a copy of Ext.P6, order was produced and the reason for delay in filing that application was also stated. Learned Munsiff dismissed Ext.P9, application by Ext.P11, order stating that since copy of the order (Ext.P6) was not produced along with ## **W.P(C) No.17552 of 2010** -: 3 :- Ext.P7 petitioner cannot claim benefit of Section 12 of the Limitation Act (for short, “the Act”). Challenge in this proceeding is to Exts.P6, P8 and P11, orders. 3. Learned counsel for petitioner contends that Ext.P5, objection preferred by the first respondent in accepting Ext.P4, application would show that respondents 2 to 4 also had interest in the property though they claimed to have transferred the same to one Sasikumar. In the circumstances respondents 2 to 4 are necessary parties failing which the suit itself may be dismissed on the contention raised by first respondent on nonjoinder of necessary parties. 4. Leaned counsel for respondents 1 to 4 contended that none of them are necessary parties to the proceeding since they have already transferred the property to Sasikumar as contended in Ext.P5, objection. 5. So far as Ext.P8, order dismissing Ext.P7, application is concerned legally, learned Munsiff is correct. Reason is that along with Ext.P7, application a copy of Ext.P6, order which was sought to be reviewed was not produced and there was no order by the court dispensing with production of copy of the order. This Court in **Kadimuk Islam Jamayat v. Asoo** (1997(1) KLT **W.P(C) No.17552 of 2010** ## -: 4 :- 231) held that a petition for review should be accompanied by the certified copy of decree or order sought to be reviewed unless it is dispensed with by the court. Exhibit P7, application suffered from two infirmities - without an order dispensing with production of Ext.P6, order a copy of that order was not produced along with Ext.P7, application, and; without producing the order petitioner could not have claimed benefit under Sec.12 of the Act. 6. Coming to Ext.P11, order dismissing Ext.P9, application it is seen that copy of Ext.P6, order was produced along with that application and the reason for delay is also stated therein. True, that no separate application to condone the delay was filed but Sec.5 of the Act does not insist for an application. What is required is to show sufficient cause. Having heard learned counsel on both sides I am inclined to think that so far as Ext.P9, application is concerned petitioner has shown sufficient cause for the delay. 7. It is seen from Ext.P6, order that Ext.P4, application for impleadment of respondents 2 to 4 was dismissed for the reason that they have already transferred property to one Sasikumar. But it is not clear when actually the transfer was made. At any rate Ext.P5, objection would indicate that respondents 2 to 4 also ## **W.P(C) No.17552 of 2010** ## -: 5 :- claimed some right over the property in that they claimed to have, along with the first respondent transferred property to one Sasikumar. This aspect of the matter was not taken into account by the learned Munsiff. Therefore I am inclined to think that Ext.P6, order is to be set aside and send Ext.P4, application for impleadment remitted to the learned Munsiff for fresh decision. Resultantly, Writ Petition is allowed in the following lines: (a) Exhibit P11, order dismissing Ext.P9, application is set aside and Ext.P9, application (I.A. No.207 of 2010) will stand allowed. (b) Exhibit P8, order dismissing Ext.P7, application (I.A.No. 1892 of 2009) will stand set aside, Ext.P7 application will stand allowed and Ext.P6, order (on I.A. No.2475 of 2008) consequently reviewed. (c) Learned Munsiff is directed to dispose of Ext.P4, application afresh having regard to the facts ## **W.P(C) No.17552 of 2010** -: 6 :- and circumstances of the case and in the light of the objection raised by respondents 2 to 4 who are sought to be impleaded as additional defendants in Ext.P5, objection. ## **THOMAS P. JOSEPH, JUDGE.** vsv