IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26584 of 2008(M)
1. T.G.N.KUMAR, 33/3004, THEKKUMURI HOUSE,
... Petitioner
Vs
1. K.S.VASUDEVAN NAMBOODIRI,
... Respondent
2. THE COCHIN DEVASWOM BOARD, REPRESENTED
For Petitioner :SRI.K.JAYAKUMAR
For Respondent :SRI.N.NEELAKANDHAN NAMBOODIRI
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :21/10/2008
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.26584 of 2008 M
&
W.P.(C) No.30467 of 2008 B
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Dated this the 21st day of October, 2008.
JUDGMENT
Heard both sides. Parties are referred hereunder as in W.P.(C)
No.26584 of 2008.
2. The petitioner, it is claimed is a devotee of the temple referred in
these petitions which according to the petitioner is an ancient Hindu Religious
Endowment. Alleging that there is no proper management of the temple, no
proper accounting, etc. petitioner approached the second respondent, Cochin
Devaswom Board (for short, `the Board’) requesting it to take over the
management of the temple. Pursuant to his initiative, the Board initiated
action. First respondent/plaintiff filed O.S.No.4 of 2008 in the Additional District
Court, Ernakulam for a declaration that the Board has no jurisdiction or authority
to control the temple in question and seeking injunction against the Board
initiating proceedings against it for taking over of the management. While that
suit was pending petitioner (in W.P.(C) No.26584 of 2008) filed application
(I.A.No.1090 of 2008) to implead himself in the suit as additional second
defendant. That application was allowed as per Ext.P10, order dated 18.6.2008.
In W.P.(C) No.30467 of 2008, first respondent/plaintiff challenges the legality
and correctness of that order, while in W.P.(C) No.26584 of 2008 petitioner
WP(c) Nos.26584 & 30467/2008
2
seeks a direction to the Additional District Court for early disposal of O.S.No.4 of
2008.
3. So far as the legality and correctness of Ext.P10 (in W.P.(C)
No.26584 of 2008) order dated 18.6.2008 is concerned, learned counsel for first
respondent/plaintiff submitted that the plaintiff being the master of the suit, it is
the discretion of the plaintiff to implead necessary parties in the suit. It is also
contended by learned counsel for first respondent/plaintiff that petitioner in
W.P.(C) No.26584 of 2008 is not a necessary or proper party in the sense that
his presence is not necessary for adjudication of the dispute between the plaintiff
and Board. Learned counsel placed reliance on the decision in Malabar
Industrial Co. Ltd. V. John Anthraper (1986 KLT 409). Per contra, counsel
for petitioner in W.P.(C) No.26584 of 2008 contends that presence of petitioner
in the suit is necessary for proper adjudication of the dispute. Learned counsel
also points out that it was as per petitioner’s initiative that the Board initiated
action which culminated in the plaintiff filing O.S.No.4 of 2008.
4. Order I Rule 10(2) of the Code of Civil Procedure (for short, ‘the
Code’) provides for impleadment of additional parties. It is stated that “the court
may at any stage of the proceedings, either upon or without the application of
either party, and on such terms as may appear to the Court to be just, order that
the name of any party improperly joined, whether as plaintiff or defendant, be
struck out, and that the name of any person who ought to have been joined,
whether as plaintiff or defendant, or whose presence before the Court may be
necessary in order to enable the Court effectually and completely to adjudicate
WP(c) Nos.26584 & 30467/2008
3
upon and settle all the questions involved in the suit, be added.” It is clear from
Sub-rule (2) that even without a motion from the plaintiff who is the master of
the suit, it is within the power of the court to implead any person provided, the
court is satisfied that such a person ought to have been joined as a party or the
presence of such a party is necessary for effectually and completely adjudicating
upon and settling all the questions involved in the suit. Therefore the authority
of the court below to implead an additional party even without a request from the
plaintiff cannot be challenged.
5. What remained for consideration is whether petitioner in W.P.(C)
No.26584 of 2008 ought to have been made a party or, at any rate his presence
was necessary to effectually and completely adjudicate upon and settle all the
questions involved in the suit. It is not disputed and records also revealed that it
was at the initiative of petitioner in W.P.(C) No.26584 of 2008 that the whole
proceedings started which ultimately ended in plaintiff filing O.S.No.4 of 2008
and the Board informing the petitioner by Ext.P7 letter that since the suit is
pending, no further action can be taken. It is also not disputed that petitioner
had filed W.P.(C) No.7570 of 2006 in this Court and the Division Bench of this
Court as per Ext.P2, judgment dated 20.3.2006 directed the Board to enquire
into the complaint preferred by the petitioner to it and pass appropriate orders
within three months. It is pursuant to that order that the Board later issued
Ext.P7 letter stating that on account of pendency of O.S.No.4 of 2008, no further
action could be taken. In other words, plaintiff by filing the suit wanted to stall
the endeavour of the petitioner to ensure that the Board took over the
WP(c) Nos.26584 & 30467/2008
4
administration of the temple. Petitioner who claimed to be a devotee of the
temple alleged that it is a Hindu Religious Endowment and further, that the
temple is being mis-managed by the plaintiff, was very much behind of the most
which culminated in Ext.P7 letter. What the plaintiff is challenging in the suit is
the authority of the Board to take action against the temple on the grounds
alleged by the petitioner in W.P.(C) No.26584 of 2008. Therefore, it cannot be
said that petitioner has no interest whatsoever in the subject matter of the suit.
6. Court has power to order impleadment, if the person sought to
be impleaded has a direct interest which could be legal or equitable on the
subject matter. In the facts of this case I am inclined to think that petitioner in
W.P.(C) No.26584 of 2008 has atleast an equitable interest. No jurisdictional
error or illegality has been committed by learned Additional District Judge in
ordering impleadment requiring interference under Article 227 of the
Constitution.
7. It is then contended by learned counsel for first
respondent/plaintiff that at any rate, principle of res judicata will apply since in
C.M.Appeal No.17 of 2007, petitioner in W.P.(C) No.26584 of 2008 had
unsuccessfully attempted to get himself impleaded and therefore, that order
operates as res judicata. C.M.Appeal arose from an interlocutory order.
C.M.Appeal is not a continuation of the suit and therefore, no impleadment in the
suit could have been ordered in the C.M.Appeal and therefore, that order
cannot operate as res judicata on I.A.No.1090 of 2008. The challenge made to
Ext.P10 order dated 18.10.2008 (in W.P.(C) No.26584 of 2008) has therefore, to
WP(c) Nos.26584 & 30467/2008
5
fail.
8. So far as the relief prayed for in W.P.(C) No.26584 of 2008 is
concerned, I do not think it proper or necessary to issue a direction for time
bound or early disposal of the suit without knowing the volume of work in that
court. It is open to the petitioner to request the learned Additional District
Judge to expedite the trial and disposal of the suit.
With the above observation, both the Writ Petitions are dismissed.
THOMAS P.JOSEPH,
JUDGE.
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