IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15484 of 2010(O)
1. M.N. BALAKRISHNAN NAIR, S/O. BALAKRISHNA
... Petitioner
2. T.SUKUMARAN, S/O. NARAYANAN, CHITHIRA'
Vs
1. VIJAYAN MENON, S/O. KUNJAN MENON,
... Respondent
2. ANSAL BUILDWELL LIMITED, ANSAL RIVER
For Petitioner :SRI.SAJU.S.A
For Respondent :SRI.T.K.VENUGOPALAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :25/11/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.15484 of 2010
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Dated this the 25th day of November, 2010.
JUDGMENT
Petitioners in I.A.No.902 of 2010 in O.S.No.654 of 2007 of the court of
learned Additional Sub Judge-II, Ernakulam challenge order dated April 3, 2010
declining to implead them as additional defendants in the suit. Respondent
No.1/plaintiff filed the suit for recovery of possession of 56 cents on the strength
of his title impleading M/s. Ansal Buildwell Limited, a construction company as
defendant. According to respondent No.1, suit property was allotted to his share
as F schedule in Ext.P2, partition deed No.1265 of 1971 and while he was in
possession and enjoyment of the property the defendant trespassed into the
said property and hence the suit. Defendant filed Ext.P4, written statement
contending that respondent No.1 has no right, title or interest in the suit property
and that the suit property belonged in jenm to Kunnappally Kunjan Menon from
whom one Varkey took it on lease in the year, 1938. Varkey assigned his lease
hold right to Kumari as per document No.1095 of 1966. (In the year, 1971 legal
representatives of Kunjan Menon, the jenmy partitioned his properties as per
Ext.P2, partition deed.) Kumari assigned her right over the property to one Paily
and Paily in turn, assigned his right to one Mathai as per assignment deed
No.871 of 1985. Mathai is said to have sold the property to the petitioners in
I.A.No.902 of 2010 as per assignment deed No.2098 of 2005. They contended
that as per an agreement they entered into with the defendant, property was put
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in the possession of defendant for development by construction of building. On
the strength of Ext.P3, assignment deed No.2098 of 2005 petitioners in
I.A.No.902 of 2010 sought their impleadment in the suit as additional defendants
claiming title over the property. That application was resisted by respondent No.1
contending that petitioners have no right, interest or title over the property and
asserting his own right over the property as per Ext.P2, partition deed. In the
meantime on the plea of tenancy raised by the defendant in its written statement
learned Sub Judge framed an issue regarding tenancy. Defendant wanted
question of tenancy to be referred to the Land Tribunal for a finding. Learned
Sub Judge allowed the prayer. Respondent No.1/plaintiff challenged that order in
this Court in W.P.(C) No.37350 of 2008. This Court vide judgment dated January
11, 2010 allowed the Writ Petition mainly observing that even as per the
contention raised by the defendant, it does not claim title over the property and
according to the defendant the property belonged to the petitioners and in such
a situation no question of tenancy genuinely arose for a decision at the instance
of the defendant. Accordingly this Court found that reference of the question
raised by defendant is not necessary, set aside the order of learned Sub Judge
and directed that issue regarding tenancy to be deleted. It is while so, that
petitioners filed I.A.No.902 of 2010 as aforesaid seeking their impleadment. In
the meantime defendant sought for and obtained amendment of its written
statement incorporating paragraph Nos.4(a) to 4(d). Learned Sub Judge vide
Ext.P8, order referring to the contention raised in paragraph No.4(d) of the
amended written statement held that property has already been sold to certain
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other persons and hence impleadment of petitioners is not required.
Consequence was a dismissal of I.A.No.902 of 2010. Petitioners (represented by
defendant as power of attorney holder) challenge the said order in this petition.
Learned Senior Advocate appearing for the petitioners contended that learned
Sub Judge culled out a particular statement alone from paragraph No.4(c) of the
amended written statement to hold that petitioners have no right, interest or title
over the property and hence their impleadment is not necessary. This being a
suit for recovery of possession of property on the strength of tile, presence of
petitioners who have a real claim of title over the property is required. Learned
Senior Advocate has placed reliance on the decisions in Razia Begum v.
Sahebzadi Anwar Begum and others (AIR 1958 SC 886) and
Beepathumma v. Thankamma (1993 (2) KLT 152) to contend that
though respondent No.1 is the master of the suit and may choose the person
against whom he should seek relief, it is not as if the court has no power to
order impleadment of necessary or even proper parties if their presence is
necessary for a proper and effective adjudication of the dispute involved.
According to the learned Senior Advocate, documents produced by petitioners
vide memo (this day), would indicate that still, petitioners have right over a
portion of the suit property. At any rate and even if it is assumed that they have
assigned a portion of the suit property to the persons referred to in paragraph
No.4(c) of the amended written statement, it is not as if petitioners as assignors
are not entitled to be impleaded as necessary or proper parties. It is pointed out
that so far as the assignee is concerned, he may seek impleadment with
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permission of the court. But that does not take away right of the assignor to get
impleaded in the suit to defend the suit for and on behalf of the assignee as well.
Learned counsel for respondent No.1 contended that this Court is not justified in
interfering with the order passed by learned Sub Judge after consideration of
the materials on record including the contention raised by the defendant in the
additional written statement and that supervisory power conferred on this Court
under Article 227 of the Constitution does not extent to reappreciation of the
evidence unless a grave injustice has been committed by the court below and
placed reliance on the decisions in Subodh Kumar Gupta and others v.
Alpana Gupta and others((2005) 11 SCC 578), Radhey Shyam
and another v. Chhabi Nath and others((2009) 5 SCC 616), Sneh
Gupta v. Devi Sarup and others ((2009) 6 SCC 194) and Jai Singh
and others v. Municipal Corporation of Delhi and another((2010)
9 SCC 385).
2. No doubt, in the decisions referred to by the learned counsel for
respondent No.1 the Supreme Court has drawn the limits within which
jurisdiction under Article 227 of the Constitution could be exercised by the High
Court. It was held that under Article 227 of the Constitution the High Court has
jurisdiction to ensure that all statutory/quasi-judicial Tribunals exercised powers
vested in them within the bounds of their authority. It is however well to
remember the well known adage that greater the power, greater the care and the
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caution in exercise thereof. The High Court therefore is expected to exercise
such wide powers with great care, caution and circumspection. The Supreme
Court pointed out that exercise of jurisdiction must be within the well recognised
constraints and that it cannot be exercised like a “bull in a china shop”, to correct
all errors of judgment of a court, or Tribunal, acting within the limits of its
jurisdiction. The correctional jurisdiction can be exercised in cases where orders
have been passed in grave dereliction of duty or in flagrant abuse of
fundamental principles of law or justice. I shall proceed in the matter as guided
by the decisions of the Supreme Court referred to above by learned counsel.
3. No doubt an earlier attempt on the part of the defendant to get the
question of tenancy referred to the Land Tribunal was shot down by this Court
by Ext.P5, judgment but that was on a finding that defendant had no claim of
title over the property and hence no question of tenancy could arise. That does
not mean that subsequent claim of petitioners or subsequent events are not to
be looked into. It is seen from the order under challenge that learned Sub
Judge disallowed the prayer for impleadment of petitioners for the reason that in
the amended written statement it was contended that in the year 2006, 2007
and 2009 sales deeds were executed (obviously by petitioners) in respect of the
suit property and that property is in the possession of one Augustine, Leslie
Augustine, Deepak Tikku, Ambir Singh and the defendant. Copies of the said
documents were produced by the defendant in the court of learned Sub Judge.
Learned Sub Judge observed that defendant is claiming under the petitioners
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and that petitioners would be helpful to prove the case of defendant (that,
defendant is not a trespasser into the suit property but is holding the property
under the agreement executed between it and petitioners who according to the
defendant are the lawful owners). Observing so, the application was dismissed.
4. Learned Senior Advocate has referred me to the description in item
No.5 of F schedule to the partition deed No.1265 of 1971 under which
respondent No.1 is claiming absolute right and title over the property. It is
stated that the said property is oustanding in the possession of one
Assariparambil Kumaran who, it is argued is the husband of Kumari who is said
to have acquired right from Varkey as per document No.1095 of 1966. It is the
said Kumari who assigned the property in favour of one Paily as per document
No.2188 of 1983 who in turn assigned property to Mathai as per assignment
deed No.871 of 1985 and it is from the said Mathai that petitioners (allegedly)
obtained right over the suit property as per Ext.P3, assignment deed No.2098 of
2005. Learned Senior Advocate has also referred to me the amendment to
written statement incorporated by paragraph Nos.4(a) to (d). In paragraph No.4
(a) there is reference to the alleged derivation of title by the petitioners as
aforesaid and as contended in the original written statement and in paragraph
No.4(b), there is reference to two documents executed by the petitioners on
01.11.2006 (prior to the institution of the suit) and 28.03.2007 in favour of
Augustine and Lesli Augustine concerning 12.306 cents each. The third
document referred to in paragraph No.4 (b) is a document executed by
petitioners in favour of the defendant regarding 18 cents. Assuming so, it
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would appear that petitioners have a claim of title over the remaining 13.388
cents (out of the 56 cents referred to in the plaint schedule), it is contended by
learned Senior Advocate appearing for petitioners. In response it is contended
by learned counsel for respondent No.1 that it is not clear in the light of
averments in the amended written statement whether rest of the suit property
has also been assigned by petitioners in favour of strangers. True in paragraph
No.4(d) of the amended written statement there is a contention raised by the
defendant that “the defendant has secured the tenancy right in the plaint
schedule vested in T.Sukumaran and M.N.Balakrishnan Nair”(they are the
petitioners before me). But it is contended by learned Senior Advocate that the
said statement alone cannot be culled out from the pleadings to hold that
petitioners have no subsisting right over the property. According to the learned
Senior Advocate that contention must be read in continuation of the contentions
raised in paragraph Nos.4(a) to (c) as to the derivation of title. Learned Senior
Advocate contends that even if a portion of the property has been assigned, it
is well within the right of petitioners atleast on behalf of the assignees and on
their behalf to get impleaded in the suit.
5. It is seen from the impugned order that learned Sub Judge took
the view that by sale deeds referred to in the amended written statement
petitioners have sold their right over the property so that they are not required to
be made parties in the suit. Learned Sub Judge has not adverted to all aspects
of the matter which I have stated above. Learned Sub Judge has not
considered the question Learned Sub Judge has not considered the question of
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rival claims to title to the property, in view of derivation of title claimed by them
are necessary or atleast proper parties to the suit. That amounts a jurisdictional
error which is required to be corrected. In view of that, the matter has to go
back to the learned Sub Judge for a fresh decision. If respondent No.1 has a
contention that in view of any other assignment deed executed by petitioners
the latter could not claim any right in the suit property it is open to him to
produce such document in the court below.
6. In the light of what I have stated above, I consider that the order
under challenge cannot be sustained as it is not passed after considering all
relevant aspects of the matter and considering all materials in which
circumstance Article 227 of the Constitution permits this Court to interfere even
going by the decisions of the Supreme Court referred to above. It follows that
order under challenge is liable to be set aside.
Resultantly this petition is allowed by way of remand. Ext.P8, order is set
aside and Ext.P6, application (I.A.No.902 of 2010) is remitted to the court below
for fresh decision after giving opportunity to both sides to adduce further
evidence in respect of their respective contentions in I.A.No.902 of 2010.
THOMAS P.JOSEPH,
Judge.
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