Lyzamma Joseph vs State Of Kerala on 18 August, 2008

Kerala High Court
Lyzamma Joseph vs State Of Kerala on 18 August, 2008
       

  

  

 
 
  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

lgk/-

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