IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15719 of 2009(O)
1. ANTO THOMAS KANICHAI,
... Petitioner
Vs
1. SHAJI, AGED 36 YEARS,
... Respondent
2. PRADEEP, AGED 39 YEARS,
3. STATE OF KERALA,
4. REVENUE DIVISIONAL OFFICER,
5. THE GEOLOGIST,
6. VILLAGE OFFICER,
7. THE AGRICULTURAL OFFICER,
For Petitioner :SRI.V.S.CHANDRASEKHARAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :08/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
-------------------------------
W.P.(C).NO.15719 OF 2009 (O)
-----------------------------------
Dated this the 8th day of July, 2009
J U D G M E N T
The writ petition is filed seeking the following reliefs:
i) to issue a writ of certiorari or any other
appropriate writ or direction calling for the
entire records in pursuant of Ext.P4,
dismissal order passed by the Honourable
Munsiff’s Court, Chalakkudy, in I.A.No.444
(a)/2009 in O.S.No.121/2009 scrutinize and
quash the same.
ii) to issue a writ in the nature of
mandamus directing the Honourable
Munsiff Court, Chalakkudy to declare that
petitioner is a necessary party in the
proceedings of O.S.No.121/2009 and
implead the petitioner as additional
defendant.
iii) to grant any other reliefs or directions
which are deemed fit and proper to meet
the ends of justice.
iv) to allow this writ petition (c) with costs.
2. Petitioner is stated to be the managing partner of a
tile factory and an office bearer of All Kerala Tile
Manufacturers Federation, Trissur. He moved an application
WPC.15719/09 2
to get himself impleaded as an additional defendant in
O.S.No.121/2009 filed by respondents 1 and 2 for a
prohibitory injunction to restrain the State, its officers and
others impleaded as defendants in that suit from unauthorised
removal of soil from the plaint property, without filling up the
ditches that had been formed by removal of soil from those
properties. The application moved by the petitioner under
Order I Rule 10 (2) of CPC was objected to by the plaintiffs,
and after hearing both sides, the learned Munsiff dismissed
that application. Ext.P4 is the copy of that order. Propriety
and correctness of that order is challenged in the writ petition
invoking the supervisory jurisdiction vested with this Court
under Article 227 of the Constitution of India.
3. Notice was ordered to the respondents.
Govt. Pleader has taken notice for respondents 3 to 7. Though
notice is served, respondents 1 and 2, the plaintiffs before the
court below have not entered appearance. I heard the learned
counsel for the petitioner and also the learned Govt. Pleader.
Petitioner is a necessary party and he will be seriously
affected if any decree is passed as prayed for by the plaintiffs
WPC.15719/09 3
in the suit, is the submission of the learned counsel for the
petitioner. Petitioner and several tile factory owners are
depending upon the raw material of clay for running their
business, and hence, any prohibitory injunction passed in the
suit would have disastrous effect in running their factories,
and so much so, he is a necessary party and if not, atleast a
proper party in the suit, and his application ought have been
allowed by the court below, according to his counsel.
4. Petitioner has filed an application in his individual
capacity though he claims to be the managing partner of a
firm, a tile factory. The question to be considered is whether
his impleadment in the suit filed by the 1st and 2nd respondents
seeking reliefs against the defendants already impleaded in
that suit is warranted. True, the petitioner may be affected by
the decree of injunction if allowed in the suit as claimed by the
plaintiffs. But it has to be noted that the relief sought for is
only against unauthorised and illegal removal of the soil from
the plaint properties. Nobody could object to that relief
because, necessarily, a permit or licence, as contemplated by
the rules, is required for removal of soil for commercial
WPC.15719/09 4
purposes. Further more, it is evident from the claim of the
petitioner that his interest is commercial, that is, in
connection with the running of his business of a tile factory.
That is also to be taken into account whether he can come and
get himself impleaded in the suit, which is filed by another
seeking relief against the State and its public officers.
Plaintiff is the master of the suit and he should be given the
freedom to select as to from whom the reliefs are to be
claimed unless it is shown that the reliefs claimed so by the
plaintiffs cannot be granted without the presence of the
petitioner in the party array. Petitioner has no right to claim
that he should be impleaded as an additional defendant in the
suit. I do not find any illegality or impropriety in the order
passed by the learned Magistrate turning down the request of
the petitioner for impleadment as an additional defendant.
Writ petition is dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp