IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 740 of 2010(O)
1. P.V.VENUGOPAL,
... Petitioner
2. V.D.PRAKASH,
Vs
1. CHAMI ALIAS RAMACHANDRAN,
... Respondent
For Petitioner :SRI.P.B.KRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :16/11/2010
O R D E R
THOMAS P.JOSEPH, J.
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O.P(C) No.740 of 2010
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Dated this the 16th day of November, 2010
J U D G M E N T
This petition is filed by the plaintiffs in O.S.No.15 of 2008 of
the court of learned Sub Judge, Palakkad aggrieved by Ext.P7, a
single word order whereby the learned Sub Judge has allowed the
application for impleadment made by the respondent under Rule
10(2) of Order I of the Code of Civil Procedure (for short, “the
Code”). According to the petitioners they are the legal heirs of
Aiyya Pattar to whom the suit property – 7.97 acres belonged. It is
the case of petitioners that Aiyya Pattar had given on lease certain
other items belonging to him to one Mallu. Petitioners and other
legal heirs of Aiyya Pattar filed O.S. No.337 of 1989 for partition of
the suit property impleading one Retna Babu also as defendant
since he claimed right over property. Regarding the claim of
Retna Babu over the suit property, the suit was decreed for
partition among the other legal heirs of Aiyya Pattar. Decree in
O.S. No.337 of 1989 has become final and was put into execution.
In the meantime Retna Babu filed O.S. No.267 of 1989 for specific
performance of an alleged agreement for sale of a share of the suit
O.P(C) No.740 of 2010
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property against some other legal heirs of Aiyya Pattar. That suit
ended in a dismissal and that has become final. In the course of
execution of decree in O.S. No.337 of 1989 respondent herein
made a claim that the suit property was also leased out by Aiyya
Pattar to Mallu from whom he got it on sub lease. That
application was opposed by petitioners and other legal heirs of
Aiyya Pattar. Executing court dismissed that application which
the respondent challenged in appeal (Ex.F.A. No.38 of 2010). This
Court by Ext.P3, judgment dated 21.10.2010 set aside the order
(Ext.P2) and remitted the matter to the executing court for fresh
decision after giving both sides opportunity to adduce evidence.
Claim made by the respondent in E.P. No.76 of 2008 in O.S.
No.337 of 1989 is pending consideration of the executing court.
In the meantime petitioners filed O.S. No.15 of 2008 for recovery
of possession of the suit property from Retna Babu. Respondent
filed I.A. No.2260 of 2009 in O.S.No.15 of 2008 for his
impleadment obviously on the claim that he is a sub lessee of
the suit property from Mallu who allegedly got a lease of the
property from Aiyya Pattar. Though that application was resisted
by petitioners learned Sub Judge as aforesaid by a single word
order allowed the application. Learned Senior Advocate
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appearing for petitioners contended that respondent is not a
necessary party in O.S. No.15 of 2008 and that at any rate the
order is passed without taking into account objection raised by
petitioners and without application of mind.
2. No doubt, learned Sub Judge has not passed a
speaking order and passed the order “allowed”. It is quite
unfortunate that such a non-speaking order was passed. Parties
and the superior courts before which the order is challenged are
entitled to know the reason for the subordinate court passing the
order. Learned Sub Judge ought to have passed a speaking order
taking into account the contentions raised by the parties. But
having regard to the facts and circumstances of the case I do not
think it necessary to remit the case to direct learned Sub Judge
pass a speaking order if otherwise the matter could be disposed
of in this proceeding. Petitioners filed O.S. No.15 of 2008 against
Retna Babu whose suit for specific performance of the agreement
has been dismissed and that dismissal has become final and with
him also on the party array in O.S. No.337 of 1989 there is a
confirmed verdict for partition of the suit property. Question
whether respondent has any right, interest or possession of
whole or any portion of the suit property is pending consideration
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of the executing court in O.S. No.337 of 1989. It is in such a
situation that respondent has sought impleadment in O.S. No.15
of 2008. Assuming that he is not a necessary party, it cannot be
said that he is not a proper party to O.S. No.15 of 2008. For, he
has made a claim in E.P. No.76 of 2008 in O.S. No.337 of 1989
which is yet to be decided by the executing court and in that
situation if without the respondent also as party in O.S. No.15 of
2008 that suit is disposed of there is possibility of divergent
findings regarding possession being entered by the courts in the
respective proceedings. In these circumstances respondent is a
proper party in O.S. No.15 of 2008 and hence I find no reason to
interfere with the impugned order notwithstanding that it is not a
speaking order.
3. Learned Senior Advocate submitted that since in
view of impleadment of respondent question of possession and
right that he may raise in that suit is also involved in E.P. No.76
of 2008 in O.S. No.337 of 1989 and hence it may be appropriate
to stay the trial of O.S. No.15 of 2008 until disposal of the claim
made by respondent in E.P. No.76 of 2008 in O.S.No.337 of 1989
and hence petitioners may be permitted to move appropriate
application for stay in O.S. No.15 of 2008. I make it clear that if
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the law so provides it will be open to the petitioners to move
appropriate application in that regard in O.S. No.15 of 2008 and
seek appropriate relief as provided under law.
With the above observation petition is dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv