P.V.Kunhikannan vs Athikkal Suhrabi on 2 January, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 34521 of 2006(I)


1. P.V.KUNHIKANNAN, AGED 62 YEARS,
                      ...  Petitioner

                        Vs



1. ATHIKKAL SUHRABI, D/O.MOIDHEEN,
                       ...       Respondent

2. ATHIKKAL SHARAFUDHIN, S/O.SUHARABI,

                For Petitioner  :SRI.M.SASINDRAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :02/01/2007

 O R D E R
                    M.SASIDHARAN NAMBIAR, J.

          ...........................................

                    W.P.(C)No.34521 OF 2006

       ............................................

           DATED THIS THE 2nd DAY OF JANUARY, 2007



                              JUDGMENT

Petitioner is the plaintiff in O.S.93 of 2003 on

the file of Munsiff Court, Payyannaur. Respondents are

the defendants. The suit is one for injunction. The

plaint was subsequently got amended by petitioner.

Defendants filed an additional written statement. In

the additional written statement, defendants raised a

contention that the property jointly belonged to the

first respondent and her children and suit is bad for

non joinder of the children. Petitioner thereafter

filed two applications, one to implead the children of

the first respondent as additional defendants and

another application for consequential amendment of the

plaint. Learned Munsiff under Ext.P5 order dismissed

both the applications. This petition is filed under

Article 227 of Constitution of India challenging Ext.P5

order.

2. Learned counsel appearing for the petitioner

vehemently argued that proposed defendants are to be

impleaded, in view of plea of non-joinder raised by the

defendants in the additional written statement and

therefore Ext.P1 order is to be quashed. Learned

WP(C)34521/2006 2

counsel also argued that defendants have not filed any

objection to the applications and in such

circumstances, Munsiff should have allowed the

applications.

3. On hearing the learned counsel appearing for

the petitioner, I do not find any reason to interfere

with Ext.P5 order, in exercise of the extra ordinary

jurisdiction of this court under Article 227 of

Constitution of India. The suit is one for injunction.

What was contended by the defendants was that plaint

schedule property belongs to and is in the possession

of first defendant and her children. If petitioner is

admitting that position then, the suit for injunction

may not lie. So long as the petitioner has no case that

the proposed defendants are attempting to trespass into

the plaint schedule property, there is no necessity for

impleading them as additional defendants. A suit for

injunction will not be bad for non joinder of the

proposed defendants. Hence due to the plea regarding

bad for non joinder of necessary parties also the

petitions are not to be allowed.

Petition is dismissed.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-