Kerala High Court
Santhakumari vs Padmanand on 9 October, 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939
OP(C).No. 74 of 2015 (O)
AGAINST THE ORDER IN I.A.No.835/2014 IN OS No.193/2014 of MUNSIFF- MAGISTRATE
COURT, MANNARKKAD, DATED 09.10.2014
PETITIONER/2ND DEFENDANT : -
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SANTHAKUMARI, AGED 68 YEARS,
D/O.KUNJUKUTTY AMMA, KIZHAKKEKALAM,
SREE KAILAS, RESIDING AT CHAKKARAKULAMBU,
KUMARAMPUTHUR, MANNARKKAD, PALAKKAD.
BY ADV.SRI.VINOD KUMAR.C
RESPONDENTS/PLAINTIFF/DEFENDANTS 1 AND 3 TO 9 : -
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1. PADMANAND, S/O.LATE PADMINI, KIZHAKKEKALAM,
RESIDING AT THAVALAM, AGALI AMSOM DESOM,
MANNARKKAD TALUK, PALAKKAD-678582.
2. BALAKRISHNAN, S/O.KUNJUKUTTY AMMA,
THEKKEPADU HOUSE, POOTHANNUR, KONGADU, PALAKKAD-678582.
3. SARASWATHI, W/O.VENUGOPAL,
VINEETHA VIHAR HOUSE, KAVILPADE AMSOM, PALAKKAD-678582.
4. SIVARAMAN NAIR, S/O.KUNJUKUTTY AMMA,
KIZHAKKEKALAM HOUSE, KIZHISSERI,
KUZHIMANNU ERANADU TALUK, MALAPPURAM -673639.
5. VIJAYAKUMARI, W/O.PARAMESWARAN, CHOORIYODE,
PAVITHRAM, THACHAMPARA MANNARKKAD, PALAKKAD-678582.
6. PRAMOD, S/O.RAJAKUMARAN, PARADAIS HOUSE,
HARISANKAR ROAD, THAREKKAD, PALAKKAD-678582.
7. RAJESH, /O.RAJAKUMARAN, PARADAIS HOUSE,
HARISANKAR ROAD, THAREKKAD, PALAKKAD-678582.
8. ARCHANA, D/O.RAJAKUMARAN, PARADAIS HOUSE,
HARISANKAR ROAD, THAREKKAD, PALAKKAD-678582.
9. BEENA, D/O LATE PADMINI AMMA, KIZHAKKEKALAM,
KUMARAMPUTHUR, MANNARKKAD, PALAKKAD - 678 582.
R1 BY ADV. SMT.ANU S. NAIR
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 74 of 2015 (O) 2
APPENDIX
PETITIONER'S EXHIBITS :
EXHIBIT P1 : TRUE COPY OF PLAINT IN O.S. 193/2014 DATED 20.12.2013.
EXHIBIT P2 : TRUE COPY OF I.A.No.835/2014 DATED 08.10.2014.
EXHIBIT P3 : TRUE COPY OF ORDER IN I.A.No.835/2014 DATED 09.10.2014.
RESPONDENTS' EXHIBIT : NIL.
// TRUE COPY //
P.A. TO JUDGE
DMR/-
P. SOMARAJAN, J.
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O.P.(Civil) No. 74 of 2015
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Dated this the 07th day of March, 2018
JUDGMENT
Challenging the order in I.A.No.835/2014 in O.S.No.193/2014 of the Munsiff's Court, Mannarkkad, dated 09.10.2014, the second defendant came up with this petition under Article 227 of the Constitution of India.
2. The said petition was filed for transposing the second defendant in a suit for partition (O.S.No.193/2014) as additional plaintiff on account of the fact that the original plaintiff, who instituted the suit, abandoned the suit. But, the lower court has dismissed the application on the ground that the suit was not pressed by the original plaintiff. The legal position is settled by a Division Bench of this Court (of which one of us was a party) in Donald Michael Richard v. Magline Paul & Others [2017 (1) KLT 90]. When there is an abandonment or withdrawal of the suit by the original plaintiff, it will give a right to any of the existing defendants to transpose himself/themselves into the party array of the suit as plaintiffs or additional plaintiffs, as the case may be. There is no legal embargo in allowing such transposement when the suit was either withdrawn or abandoned by the original plaintiff. The only requirement is that if it is a suit for partition, O.P.(Civil) No. 74 of 2015 2 all sharers should be made as co-defendants in the suit. In other words, if the original plaintiff is a sharer, he should be made as a co-defendant. In short, there is no legal embargo or impediment in allowing transposement of one of the defendants as a co- plaintiff/additional plaintiff in a suit for partition when the original plaintiff abandoned or withdrawn the suit. The lower court has committed a serious error in exercise of its jurisdiction. Hence, the order of the lower court is liable to be set aside. The second defendant is permitted to transpose as additional plaintiff in the suit. The lower court shall carry out the transposement in the original plaint and proceed with the suit in accordance with law. The parties shall appear before the lower court on 10.04.2018.
Original petition is disposed of accordingly. No order as to costs.
Sd/-
P. SOMARAJAN, JUDGE DMR/-