IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31937 of 2008(B)
1. A.P.V.SANTHAKUMARI, AGE 47 YEARS,
... Petitioner
Vs
1. A.P.V. OMANA, D/O. MAHDAVI AMMA,
... Respondent
2. A.P.V. BHANUMATHI, W/O. BALAKRISHNA,
3. A.P.V. MOHANAN, S/O. MADHAVI AMMA,
4. A.P.V. THANKAM, ANI,
5. A.P.V. PARASANNA, W/O. RAVENDRAN,
6. A.P.V. VIJAYAN, S/O. MADHAVI AMMA,
7. PUTHALAVAN THAZHAVEETIL SASIDHARAN,
For Petitioner :SRI.V.N.RAMESAN NAMBISAN
For Respondent :SRI.M.SASINDRAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :24/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
-----------------------------
W.P.(C).No.31937 OF 2008
--------------------------
Dated this the 24th day of August 2009
-------------------------------------
JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) To set aside the impugned orders at
Exts.P7 to P9 orders dated 02/09/2008 of the court
of the Munsiff, Payyannur in O.S No.355/01.
ii) To direct the Court of Munsiff,
Payyannur to restore the I.A No. 1119/2008,
1087/2008 and 1088/2008 on the file and to allow
the same.
W.P.(C).No.31937 OF 2008 Page numbers
iii) To declare that unless the resurvey
is conducted in the matter based on the title deeds
and accordingly resurvey boundaries are fixed
substantial injustice shall be caused to the
parties to the suit, O.S No.355/2001.
iv) To declare that in view of the well
settled position in law, in petitions for
impleading and amendment no limitation is
applicable and liberal approach is necessary with a
view to secure ends of justice.
v) To grant such other and further
reliefs as this Hon’ble Court may consider just and
proper in the facts and circumstances of the case.
2. Petitioner is the plaintiff in O.S
No.355 on the file of the Munsiff Court, Payyannur.
Suit is for fixation of boundaries, and the
W.P.(C).No.31937 OF 2008 Page numbers
respondents are the defendants in the suit.
Respondents filed their written statement resisting
the suit claim. Plaintiff moved three applications
seeking impleadment of survey officials as
additional defendants 8 and 9 in the suit,
consequential amendment on such impleadment in the
plaint, and also for dispensing the notice under
Section 80 of the Code of Civil Procedure on
impleading of survey officials. The learned
Munsiff passed separate orders on the respective
applications, dismissing all of them. Exts.P7, P8
and P9 are the copies of the orders passed on the
respective applications by the learned Munsiff.
Propriety and correctness of those orders are
challenged in the writ petition invoking the
supervisory jurisdiction vested with this court
under Article 227 of the Constitution of India.
W.P.(C).No.31937 OF 2008 Page numbers
3. I heard the counsel on both sides.
The learned counsel for the petitioner submitted
that impleadment of the survey officials as
additional defendants 8 and 9 in the suit is
essential for an adjudication of the disputes
involved and fair disposal of the suit. Since the
survey officials are sought to be impleaded as
Government officials, it is submitted, an
application was filed to dispense notice under
Section 80 of the Code of Civil Procedure. I find
no impropriety or illegality in the order passed by
the court below dismissing the application moved by
the petitioner for impleadment of the survey
officials dispensing with the notice under Section
80 of Code of Civil Procedure. Section 80 of the
Code of Civil Procedure is based on public purpose
which mandates issue of a notice to the Government
in advance, stating the particulars of the suit
claim, before any suit is filed against the
W.P.(C).No.31937 OF 2008 Page numbers
Government or public officer. The object of the
Section is to avoid unnecessary litigation. When
the mandate of the Section is to give notice before
institution of a suit, after filing the suit
seeking dispensation of that notice by filing a
petition before the court cannot be entertained. In
“Bihari Chowchary and others v State of Bihar and
others” (AIR 1984 SC 1043) the apex court has
considered the scope of Section 80 of Code of Civil
Procedure and it has been held that any suit filed
against the Government or public officer not
complying with the mandate of Section 80 of Code of
Civil Procedure is not maintainable. Further more,
survey officials are sought to be impleaded without
bringing the Government as an additional defendant.
That is also against the provisions covered
by Order 27 Rule 5 of the Code of Civil
Procedure. Whatever be the case of plaintiff,
for impleadment of the survey officials,
W.P.(C).No.31937 OF 2008 Page numbers
in view of the statutory bar, I find the orders
passed by the learned Munsiff under Exts.P7, P8 and
P9 are unassailable, but, I make it clear that none
of the observations made in this orders shall have
any bearing in disposal of the suit on merits.
Writ petition lacks merit, and it is dismissed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv