IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 620 of 2010()
1. K.T.RAJI @ RAJESWARI,
... Petitioner
Vs
1. K.T.R.A. TRUST, REP. BY MANAGING
... Respondent
2. K.T.PRAKASH, S/O.GOPALAN, 63 YEARS,
3. K.T.PRASAD, S/O.GOPALAN, 58 YEARS,
For Petitioner :SRI.P.K.ABOOBACKER(EDAPPALLY)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :23/11/2010
O R D E R
THOMAS P JOSEPH, J.
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C.R.P.No.620 of 2010
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Dated this 23rd day of November, 2010
ORDER
Order dated October 5, 2010 on I.A.No.2758 of 2010 in
O.S.No.598 of 2007 of the court of learned Principal Munsiff-II,
Kozhikode is under challenge at the instance of petitioner who is
a third party to the suit. Respondent No.1 sued respondent Nos.2
and 3 (sisters of petitioner) for prohibitory injunction against
trespassing into the suit property or creating documents in
respect of the said property. Respondent Nos.2 and 3 remained
ex parte. Petitioner filed I.A.No.2758 of 2010 to implead her as
additional defendant No.3 claiming that though property
described in the plaint schedule is item No.3 in the Trust Deed
(over which petitioner has no claim), item No.2 in the Trust Deed
belonged to her and the report of Advocate Commissioner is in
respect of item No.2 property (in the Trust Deed) as well. Hence,
it is contended that presence of petitioner as party in O.S.No.598
of 2007 is necessary for adjudication of the dispute particularly
since respondent Nos.2 and 3 remained ex parte. Learned
Munsiff was not inclined to accept the contention of petitioner
and dismissed the application.
C.R.P.No.620 of 2010
: 2 :
2. This revision petition itself is not maintainable in view
of Sec.115(1) of the Code of Civil Procedure (for short, “the
Code”). A revision against an order in a pending suit or other
proceeding can be entertained only if the revision if allowed
would terminate the suit or other proceedings. Here, an
application for impleadment is filed in a pending suit and even if
this revision is allowed, it will not terminate the suit. Having
heard learned counsel for petitioner and in the light of the order I
propose to pass I do not think it necessary to close this revision
and ask petitioner to file petition under Article 227 of the
Constitution.
3. Petitioner has no claim over the property described in
the plaint schedule and even according to her, the suit property
is item No.3 in the Trust Deed over which respondents are
claiming title. So far as petitioner has no interest in that property
she cannot claim to be a necessary or proper party. Now the
contention is that item No.2 in the Trust Deed belonged to the
petitioner and the report of the advocate commissioner is
concerning that property. Any decree passed without petitioner
on record and concerning any portion of property belonging to
her cannot bind her. I am not persuaded to think that to oppose
C.R.P.No.620 of 2010
: 3 :
report of the Advocate Commissioner petitioner must be
impleaded as a party. Having regard to the facts and
circumstances of the case I am not persuaded to think that
petitioner is either a necessary or a proper party to the suit. I do
not find reason to interfere with that.
Resultantly this petition fails and it is dismissed without
prejudice to the right of petitioner to object to the execution of
the decree if passed concerning any portion of the property
belonging to her.
(THOMAS P JOSEPH, JUDGE)
Sbna/-