IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 24777 of 2008(Y) 1. LYZAMMA JOSEPH, D/O. MATHAI JOSEPH ... Petitioner Vs 1. STATE OF KERALA, REP. BY ITS SECRETARY ... Respondent 2. DISTRICT COLLECTOR, COLLECTORATE, 3. SUPERINTENDENT OF SURVEY AND LAND 4. TOMY JACOB, S/O. CHACKO, PLATHOTTATHIL 5. C.M.PAUL, S/O.MATHAI, For Petitioner :SRI.JOSE JOSEPH ARAYAKUNNEL For Respondent : No Appearance The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :18/08/2008 O R D E R M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 24777 OF 2008 ............................................ DATED THIS THE 18th DAY OF AUGUST, 2008 JUDGMENT
This petition is filed under Article 227 of Constitution of
India challenging Ext.P3 order passed by Sub Court, Pala
dismissing I.A.420 of 2008, an application filed by petitioner to
delete respondents 4 and 5.
2. Learned counsel appearing for petitioner was heard.
The argument of the learned counsel is that plaintiff is entitled to
remove a party from the suit at any stage, as provided under sub-
rule 2 of Rule 10 of Order I of Code of Civil Procedure and
therefore learned Sub Judge should have allowed the application.
3. On hearing the learned counsel and going through
Ext.P3 order, I do not find any illegality or irregularity,
warranting interference in exercise of the supervisory
jurisdiction of this court. The appeal was not filed within time. A
petition was filed under Section 5 of Limitation Act to condone
the delay and it is pending. The question of deleting
respondents, defendants, would arise in the appeal only after
delay is condoned and appeal is admitted, after hearing the
appellant as provided under Rule 11 of order XLI of Code of Civil
WP(C) 24777/2008 2
Procedure. The question now before the first appellate court is
whether delay in filing the appeal is to be condoned or not. Delay
could be condoned only after notice to all
respondents/defendants in the suit. Petitioner is entitled to file
an application to remove any of the respondents from the party
array, after delay is condoned and appeal is admitted as provided
under Rule 11 of order XLI of Code of Civil Procedure. Petition
is disposed granting that liberty to petitioner. Petitioner is also
granted one weeks time to pay the necessary bata for taking
notice to respondents 5 and 6.
M.SASIDHARAN NAMBIAR, JUDGE