Kerala High Court
P.T.Lalithambika Unnithan vs C.P.Venugopal on 11 July, 2008
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35753 of 2007(F)
1. P.T.LALITHAMBIKA UNNITHAN,
... Petitioner
2. SMT. RADHIKA UNNITHAN, 41H,
Vs
1. C.P.VENUGOPAL, CATERING ASSISTANT,
... Respondent
2. SREEKALA, RESIDING AT NORTH OF
For Petitioner :SRI.R.S.KALKURA
For Respondent :SRI.L.MOHANAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :11/07/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.35753 of 2007
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Dated this the 11th July, 2008.
J U D G M E N T
Petitioners are the plaintiff and respondents the defendants in O.S.No.238 of 2001, on the file of Munsiff Court, Thiruvananthapuram. The suit is for permanent prohibitory injunction restraining respondents from trespassing into plaint 'C' schedule pathway or demolition of the plaint 'D' schedule compound wall or committing any waste or obstructing the peaceful possession of the petitioners. After written statement was filed by respondents 1 to 3, contending that the pathway provided under Partition Act, 1968, is available to all the sharers, their successors and transferees and petitioners alone have no exclusive right, petitioners filed I.A.No.9415 of 2007, an application under Sub-rule (2) of Rule 10 of Order I of Code of Civil Procedure, to implead six persons as additional defendants. Contesting respondents opposed the application contending that the attempt is only to protract the trial of the suit and persons sought to be impleaded are unnecessary parties, and, therefore, petition is to be dismissed. Under Ext.P7 order, learned W.P.(C) No. 2 Munsiff dismissed the application. It is challenged in this petition filed under Article 227 of the Constitution of India.
2. The learned counsel appearing for the petitioners and learned counsel appearing for the contesting respondents were heard.
3. The argument of the learned counsel is that petitioners are the masters of the plaint and in the light of the contention raised in the written statement that all the sharers, their successors and assignees are also entitled to a right in the disputed pathway, all those persons who are not willing to go along with the petitioners are to be impleaded in the suit, and, therefore, the proposed defendants were sought to be impleaded, and learned Munsiff should have impleaded them. The learned counsel also argued that if at the time of recording of the evidence, contesting respondents is to contend that they obtained permission from any of them, it would cause difficulty to the petitioners at that stage, and, therefore, it is necessary to have a decision in their presence. W.P.(C) No. 3
4. The learned counsel appearing for the respondents argued that there is no illegality or irregularity in Ext.P7 order warranting interference in exercise of the powers of this Court under Article 227 of the Constitution of India. It was pointed out that this Court directed the parties to maintain status quo under Ext.P4 judgment in W.P.(C) No.1831 of 2005 and attempt of the petitioners is to prolong that order and in such circumstances petition is only to be dismissed.
5. On hearing the learned counsel, and on going through the records and Ext.P7 order, I do not find any illegality or irregularity in Ext.P7 order warranting interference. In Ext.P6 petition filed under sub-rule 2 of Rule 10 of Order I of Code of Civil Procedure, what is contended by the petitioners to justify impleading of the proposed defendants was that in the written statement, defendants contended that petitioners have no exclusive right over the plaint 'C' schedule pathway and there are other property owners also who have right over the same and when the petitioners discussed the details of the case with the lawyer, they were instructed to implead the successors and transferees of Partition Deed No.2372/1968, so that W.P.(C) No. 4 they also could be heard and they also will get an opportunity to adduce evidence and participate in the trial, and, therefore, they are to be impleaded.
As stated earlier, suit is only for injunction. The question of the right of the petitioners or the other sharers or their successors or assignees are not be decided in this suit. From the nature of the suit, so long as petitioners have no case that they are attempting to trespass into property or denied the right claimed by the petitioners or claimed right against the right claimed by the petitioners, it is not necessary to implead them as additional defendants. In the absence of any such case in the affidavit, proposed defendants are not to be impleaded. Learned Munsiff rightly found that presence of the proposed defendants in the suit for injunction is unnecessary. Hence, petition is dismissed.
M.SASIDHARAN NAMBIAR, JUDGE nj.