IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31920 of 2008(Y)
1. VIJAYAMMA
... Petitioner
2. RAJ KUMAR,S/O. VASUDEVAN
3. DILEEP KUMAR, S/O. VASUDEVAN
4. ASOK KUMAR
Vs
1. CHANDRIKA KUMARI
... Respondent
For Petitioner :SRI.P.RADHAKRISHNAN (1)
For Respondent :SRI.K.KARTHIKEYAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :02/07/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No. 31920 OF 2008 Y
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Dated this the 2nd day of July, 2009
J U D G M E N T
The writ petition is filed seeking the following reliefs:-
“(i) issue a writ of certiorari calling
for records leading to the issuance of Ext.P4
and set aside Ext.P4 order.
(ii) issue a writ of mandamus directing
the court below to reconsider Ext.P1
application in view of the orders passed in
Ext.P3 application or in the alternative dismiss
Ext.P1 application.”
2. Petitioners are the defendants in OS.No.1136/02 on
the file of III Additional Munsiff Court, Thiruvananthapuram. Suit
was one for partition, and the respondent is the plaintiff. Suit after
trial was dismissed. After preferring an appeal challenging the
decree and judgment dismissing the suit, the respondent/appellant
moved an application for impleading a sharer who was left out.
That application, after hearing both parties, was allowed by the
appellate court. The legality, propriety and correctness of that
order, a copy of which is produced as Ext.P4, is challenged by the
petitioners/ defendants in the suit invoking the supervisory
WPC.31920/08
: 2 :
jurisdiction vested with this court under Article 227 of the
Constitution of India.
3. I heard the counsel on both sides. It is submitted that
the respondents had earlier moved another application for the
same relief covered by Ext.P4 in the appeal and that was
dismissed. The learned counsel for the respondent submits that
the appellate court, after taking note of the earlier dismissal,
allowed the subsequent application under Ext.P4 order. Whatever
that be, the course followed by the appellate court in allowing the
impleadment of a party in appeal before the appeal was taken up
for consideration on its merits, ie, at the time of hearing of the
appeal, is not in consonance with the procedure, equity or justice.
The impleadment allowed necessarily will cause prejudice to the
party impleaded whoever he be and also the contesting
respondents in the appeal. The appeal is a re-hearing of the suit
and of course the appellate court has all the powers of the trial
court subject to the limitations prescribed by the law. Still, the
impleadment of an additional party in appeal has serious
consequences as it would not be conducive to a fair disposal of
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: 3 :
the appeal in accordance with the procedure prescribed. Of
course, impleading a representative of a party on death of any of
the parties or transfer or assignment is permissible a it would not
in any way affect the appeal proceedings. Ext.P4 order cannot be
sustained and it is liable to be set aside. I do so. However,
irrespective of Ext.P4 order which has now been set aside the
question of impleadment of a party as desired by the appellants,
shall be considered by the appellate court taking up the
application moved by the appellant for that purpose when the
appeal is heard and then passing appropriate orders thereof in
accordance with law. In case the application is found allowable
and impleadment of an additional party as desired by the
appellants found necessary, the question of setting aside the
dismissal and remitting the case for fresh disposal has also to be
considered by the court. Subject the above observations, the writ
petition is disposed.
Sd/-
(S.S. SATHEESACHANDRAN, JUDGE)
aks