Kerala High Court
T.P.Muthalib vs Kidmath Organistation Of Padne (Kop) on 1 September, 2022
Author: C.S Dias
Bench: C.S.Dias
1
OP(C) No.1846 of 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 1ST DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944
OP(C) NO. 1846 OF 2019
AGAINST THE ORDER/JUDGMENT IN IA NOS 1894 AND 1921 OF 2018
IN OS 241/2008 OF MUNSIFF COURT, HOSDRUG
PETITIONER/S:
T.P.MUTHALIB,AGED 62 YEARS,S/O.MUHAMMEDKUNHI,
RESIDING AT GANESHMUKKU, PADNE P.O., PADNE.
BY ADV Sreedharan
RESPONDENT/S:
1 KIDMATH ORGANISTATION OF PADNE (KOP)
REGISTRATION NO.247/1993, REPRESENTED BY ITS
PRESIDENT L.K.MOHAMMED ALI HAJI, PIN-671121.
2 SHARAFF ARTS AND SCIENCE COLLEGE,PADNE,
REPRESENTED BY ITS MANAGER, K.P.SALAHUDHEEN, -
671121.
3 L.K.MOHAMMED ALI HAJI,S/O.AHAMMED, SALAMATH
MANZIL, PADNE -671121.
4 K.P.SALAHUDHEEN,S/O.MUHAMMEDKUNHI HAJI, PADNE
VILLAGE, HOSDURG TALUK-671121.
5 P.K.C.MAHAMOOD HAJI,S/O.KUNHAMMED HAJI, RESIDING
AT CHOKKIKUNDO HOUSE, PADNE -671121.
6 T.K.ABDUL KAREEM HAJI,S/O.MOOSA, RESIDING NEAR CO-
OPERATIVE BANK, PADNE -671121.
7 B.C.ABDUL RAHIMAN,S/O.KHALID, RESIDING NEAR
MADRASSATHUL RAHMANIYATH HIGH SCHOOL, PADNE P.O.,
PADNE -671121.
8 P.C.JALEEL,S/O.ABDULKHADER HAJI, RESIDING NEAR
POST OFFICE, PADNE -671121.
9 P.K.MOHAMMED KUNHI MASTER,S/O.AHAMMED, RESIDING
NEAR MADRASSATHUL RAHMANIYATH HIGH SCHOOL, PADNE
P.O., PADNE -671121.
10 K.MUSTHAFA,S/O.ASSAINAR, RESIDING AT KAVUMTHALA,
PADNE -671121.
11 V.K.ABDULLA,
S/O.MOIDEENKUTTY, RESIDING AT KOTTAYAMTHAR, PADNE
-671121.
2
OP(C) No.1846 of 2019
12 P.ABDUL RAZAK,S/O.HAMZA HAJI, RESIDING AT
THEKKEPURAM, PADNE -671121.
13 V.K.C.MOHAMMED,S/O.MOIDEENKUTTY, RESIDING AT
THEKKEPURAM, PADNE -671121.
14 T.K.SHAHID,S/O.T.P.KASIM, RESIDING AT THEKKEPURAM,
PADNE -671121.
15 T.ABDUL KAREEM,S/O.ASSAINAR, RESIDING AT
KAVUMTHALA, PADNE -671121.
16 L.K.AYUB,S/O.KARIM, RESIDING AT THEKKEPURAM, PADNE
-671121.
17 T.K.RIYAS,S/O.ASSAINAR, RESIDING AT CLOCK HOUSE,
KAVUMTHALA, PADNE -671121.
18 V.K.T.ASSAINAR,S/O.KUNHUMOIDEEN KUTTY, RESIDING AT
G.U.P.S., PADNE -671121.
19 SIDDIQUE MOHAMMED ALI,S/O.T.K.C.MUHAMMED ALI,
RESIDING AT THEKKEPURAM, PADNE -671121.
20 P.V.SABIR,S/O.T.K.C.MUHAMMED ALI, RESIDING AT
THEKKEPURAM, PADNE -671121.
21 M.ABDUL RAZAK,S/O.ISMAIL, RESIDING AT THEKKEKAD,
PADNE -671121.
22 K.C.ANWAR HUSSAIN,S/O.KHADER HAJI, RESIDING AT
A.V.C.HOUSE, VADAKKEPURAM, PADNE -671121.
23 K.M.ABDUL NASSAR,S/O.AHAMMED HAJI, RESIDING AT
KAVUMTHALA, PADNE -671121.
24 K.M.C.SHOUKATH,S/O.KHALID, RESIDING AT
VADAKKEPURAM, PADNE -671121.
25 P.C.C.ABOOBACKER,S/O.ABDULKHADER, RESIDING AT
VADAKKEPURAM, PADNE -671121.
26 V.K.T.MOHAMMED,S/O.MUHAMMED, RESIDING AT
KAVUMTHALA, PADNE -671121.
27 M.C.SULAIMAN HAJI,S/O.MOIDEEN KUTTY, RESIDING NEAR
MADRASSATHUL RAHMANIYATH HIGH SCHOOL, PADNE P.O.,
PADNE -671121.
28 T.K.C.MOHAMMED ALI HAJI,S/O.ABDULKHADER, RESIDING
AT THEKKEPURAM, PADNE -671121.
29 U.KUNHIMOIDEEN KUTTY HAJI,S/O.MUHHAMEDKUNHI,
RESIDING AT KOTTAYANDAR, PADNE -671121.
30 S.C.MEHAMOOD HAJI,S/O.ABDULLA, RESIDING AT
VADAKKEPURAM, PADNE P.O., PADNE -671121.
31 M.C.IBRAHIM,S/O.HAMZA, RESIDING AT KOTTAYANDAR,
PADNE -671121.
32 K.MUHAMMEDKUNHI HAJI,S/O.AHAMMED, RESIDING AT
KAVUMTHALA, PADNE P.O., PADNE -671121.
3
OP(C) No.1846 of 2019
33 P.SULAIMAN HAJI,
RESIDING AT VADAKKEPURAM, PADNE -671121.
34 K.K.KUNHABDULLA,
S/O.ABDULKHADER, RESIDING NEAR MADRASSATHUL
RAHMANIYATH HIGH SCHOOL, PADNE P.O., PADNE -
671121.
35 K.P.BASHEER,S/O.KUNHAMMAD, RESIDING AT
VADAKKEPURAM, PADNE -671121.
36 A.V.C.MOHAMMED ALI HAJI,S/O.KUNHAMMED HAJI,
RESIDING AT VADAKKEPURAM, PADNE-671121.
37 M.IBRAHIM,S/O.HASSAINAR, RESIDING NEAR MARKET,
PADNE -671121.
38 M.ABDULKHADER,RESIDING AT THEKKEPURAM, PADNE -
671121.
39 P.C.MOHAMMED ALI HAJI,S/O.MOHAMMED, RESIDING NEAR
MARKET, PADNE -671121.
40 P.K.C.KUNHIMOIDEEN KUTTY,
S/O.MOHAMMEDKUNHI HAJI, RESIDING NEAR SHARAFF
COLLEGE, PADNE -671121.
BY ADVS.
SMT.PREETHI. P.V.
SRI.P.K.RAVI SANKAR
SRI.D.ANIL KUMAR
SRI.M.V.BALAGOPAL
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
4
OP(C) No.1846 of 2019
C.S DIAS,J.
---------------------------
OP(C) No.1846 of 2019
-----------------------------
Dated this the 1st day of September, 2022.
JUDGMENT
The original petition is filed aggrieved by the common order in IA Nos.1894 and 1921 of 2018 in OS No.241/2008 (Ext P6) of the Court of the Munsiff, Hosdurg.
2. The petitioner's case, in a nutshell, relevant for the determination of the original petition is: the petitioner is the fifth defendant in the above suit filed by the respondents 1 to 4, to declare that no election to the office bearers of the first and second respondents was held in the meeting on 28.5.2008 and for other ancillary reliefs. The suit is being tried with OS No.329/2006 pending before the same court, filed by the respondents 1 to 4 and others, for a decree of injunction. Along with the suit, the respondents 1 to 4 had filed IA No.2440/2008 and the petitioner and others 5 OP(C) No.1846 of 2019 filed IA No.3536/2008, for an order of temporary injunction. The court below, by Ext P1, dismissed I.A No.2440/2008 and allowed I.A No.3536/2008, restraining the respondents and their men from interfering with the affairs of the respondents 1 and 2.
3. Enraged by Ext P1 order, a few persons managed to influence the authorities of the Kannur University and change the educational agency of the second respondent. The Kannur University Act envisages only the power to change the Manager of the College, but not the educational agency. The petitioner preferred IA No.1895 of 2018, under Order 39 Rule 2A of the Code of Civil Procedure, to prosecute the respondents for violating Ext.P1 order. WP(C)No.32293 of 2015 was also filed before this Court, challenging the decision of the revenue authorities in not accepting land tax from the first respondent. This Court, by Ext P2 judgment, declined to interfere in the matter in view of the pendency of the civil suit. Ext P2 judgment was 6 OP(C) No.1846 of 2019 confirmed by a Division Bench by Ext P3 judgment. The Kannur University has acted in collusion with the respondents and violated Ext P1 order. Therefore, the Kannur University is a necessary party in the suit. Consequently, the petitioner filed Exts P4 and P5 applications to implead the Kannur University and a person named Abdul Samad Haji as additional defendants 39 and 40 in the suit. The court below, without appreciating Exts P4 and P5 in their proper perspective, by the impugned Ext P6 order, dismissed the above applications. Ext P6 is erroneous and improper. Hence the original petition.
4. The fifth respondent has filed a counter affidavit denying the allegations in the original petition. The fifth respondent has contended that the suit is filed to declare the meeting held on 28.5.2008 to be void. The fifth respondent has filed a written statement to the suit. It is after ten years, when the suit was listed for trial, Exts P4 and P5 applications are filed. The 7 OP(C) No.1846 of 2019 applications are highly belated and totally unwarranted. The petitioner had unsuccessfully challenged the decision of the revenue authorities before this Court. There is no necessity to implead the University as additional defendant. Hence the original petition may be dismissed, confirming Ext P6 order passed by the court below.
5. Heard; Sri.Kodoth Sreedharan, the learned Counsel appearing for the petitioner, Sri. Sethumadhavan.T, the learned Senior Counsel appearing for the respondents 1 to 4 and Sri.P.K Ravisankar, the learned counsel appearing for the fifth respondent.
6. The question is whether there is any error or illegality in Ext P6 order.
7. Ext R5(a) plaint is filed for the following reliefs:
a) declaration that there was no election of the office bearers of the first and second plaintiffs (KOP and Sharaf Arts and Science college) in the meeting held on 8 OP(C) No.1846 of 2019 28.5.2008 and defendants 4 and 5 are not the duly elected President and Secretary of the KOP and the third defendant is not the duly elected Manager of the second plaintiff and consequently for a permanent prohibitory injunction restraining the defendants or their men from interfering with the administration, management and affairs of the plaintiffs 1 and 2.
b) for payment of full cost of the suit, and
c) Grant such other and further reliefs as the court may deem fit to grant under the circumstances of the case.
8. A reading of the reliefs establish that the respondents 1 to 4 have only sought for a declaration that no election to the office bearers of the first and second respondents was held in the meeting held on 28.5.2008.
9. The court below has passed Ext P1 order of injunction dated 27.11.2008, restraining the respondents and their men from interfering with the affairs of the respondents 1 and 2.
10. It is on 17.9.2018, that the petitioner has felt the necessity to implead the Kannur University and a 9 OP(C) No.1846 of 2019 third party as additional defendants in the suit, on the allegation and ground that they have flouted Ext P1 order.
11. Undisputably, the petitioner is the fifth defendant in the suit. It is the respondents 1 to 4 who are dominus litis and who are competent to seek for impleadment of additional defendants.
12. The court below, after appreciating Exts P4 and P5 applications, felt that there is no necessity to implead the persons mentioned in the applications as additional defendants.
13. Ext.P1 order was passed on 27.11.2008 against the respondents. The University or the third party are not on the party array. Therefore, it cannot be said that the University and the third party have violated Ext P1 order of temporary injunction. The petitioner would have to work out his remedies as contemplated in law. It is upto the Court to decide, as provided under Order 1 Rule 10 (2) of the Code of Civil Procedure to add or 10 OP(C) No.1846 of 2019 strike out parties. The petitioner, who is the defendant in the suit, cannot dictate terms to the court below.
I do not find any error or illegality in Ext P6 order warranting interference by this Court under Article 227 of the Constitution of India. The original petition fails and is dismissed.
sd/-
sks/1.9.2022 C.S.DIAS, JUDGE 11 OP(C) No.1846 of 2019 APPENDIX OF OP(C) 1846/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER IN I.A.3536/2008
IN O.S.241/2008 OF THE MUNSIFF COURT, HOSDURG DATED 27.11.2008.
EXHIBIT P2 TRUE COPY OF JUDGMENT IN W.P. (C)32293/2015 DATED 11.12.2017.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN W.A.1065/2018 DATED 17.8.2018.
EXHIBIT P4 TRUE COPY OF I.A.1894/2018 IN O.S.241/2008 DATED 17.9.2018.
EXHIBIT P5 TRUE COPY OF I.A.1921/2018 IN O.S.241/2008 DATED 19.9.2018.
EXHIBIT P6 TRUE COPY OF THE COMMON ORDER IN I.A.1894/2018 AND 1921/2018 IN O.S.241/2008 OF THE MUNSIFF COURT, HOSDURG DATED 20.6.2019.
RESPONDENT EXHIBITS EXHIBIT R5(A) TRUE COPY OF THE PLAINT IN O.S.241 OF 2008 ON THE FILE OF MUNSIFF'S COURT, HOSDURG.
EXHIBIT R5(B) TRUE COPY OF THE JUDGMENT DATED 23-1- 2019 IN WPOC NO.36440 OF 2018 BEFORE THIS HONOURABLE COURT.