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George vs Thoma on 3 June, 2009

Kerala High Court
George vs Thoma on 3 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 15314 of 2009(O)


1. GEORGE,S/O. KUNDUKULANGARA ITTOOP
                      ...  Petitioner

                        Vs



1. THOMA,S/O.CHITTILAPPILLIKUNNATH LAZAR,
                       ...       Respondent

2. ANDREWS, S/O. PALLISSERY PORINCHU,

3. THOLUR GRAMA PANCHAYAT REP.BY ITS

                For Petitioner  :SRI.JIJO PAUL

                For Respondent  : No Appearance

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :03/06/2009

 O R D E R
                  S.S.SATHEESACHANDRAN, J.
                  -----------------------------------
                  W.P.(C).No.15314 of 2009 - O
                   ---------------------------------
               Dated this the 3rd day of June, 2009

                          J U D G M E N T

This writ petition is filed under Article 227 of the

Constitution of India seeking the following reliefs:

“i) To call for the originals of the records leading to

Ext.P7 and set aside and quash the same.

ii) To direct the 1st Additional Munsiff, Thrissur to

permit the petitioner/plaintiff to implead the 3rd

respondent herein as the additional 3rd defendant in

Ext.P1 suit and to allow the amendment to the plaint

as prayed for in Ext.P4.”

2. Petitioner is the plaintiff in O.S.No.1448/2006 pending

on the file of the Munsiff Court, Thrissur. Suit was one for

perpetual prohibitory injunction. After a report from a

commissioner was obtained in the suit, petitioner /plaintiff moved

an application for amendment of the plaint and also for

impleading the local authority, Panchayath, as an additional

defendant in the suit. That application was dismissed by the

learned Munsiff by Ext.P7 order. Correctness of that order is

W.P.(C).No.15314 of 2009 – O

2

impeached by the plaintiff in this writ petition invoking the

supervisory jurisdiction of this Court under Article 227 of the

Constitution of India.

3. I heard the counsel for the petitioner.

4. It is submitted that the presence of the Panchayath at

least as a proper party in the suit is essential for fixation of the

water channel which is also one of the matters covered by the

suit. Learned Munsiff has found that no relief is claimed against

the Panchayath and the application for amendment and

impleadment of the Panchayath as a party in the suit has been

made at the fag end of the suit. It is brought to my notice that

the suit is posted for trial in the special list tomorrow. Whether

the Panchayath has to be impleaded as a proper party in the suit

for fixation of the water channel over which also some disputes

arise in the adjudication of the suit, of course, was a matter

which should have been known to the plaintiff even before a

report from commissioner was collected. Merit of the application

moved by the plaintiff has to be examined with reference to the

statutory interdiction under Section 249 of the Panchayath Act

W.P.(C).No.15314 of 2009 – O

3

which mandates advance suit notice. Pending suit a notice has

been issued to the Panchayath under Section 249 of the above

Act is the submission of the counsel. Whatever that be, having

regard to the fact that the suit is already listed for trial, I do not

find any merit in entertaining this writ petition at this stage.

The writ petition is dismissed.

S.S.SATHEESACHANDRAN,
JUDGE.

bkn/-

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