IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21149 of 2009(O)
1. T.R.AYYAPPAN, S/O.RAMAN,
... Petitioner
Vs
1. JANARDHANAN, S/O.LATE GOPALAN,
... Respondent
2. VELAYUDHAN, S/O.KAPPU,
3. MURALEEDHARAN, S/O.GANGADHARAN NAIR,
4. P.K.ARAVINDAKSHAN,
For Petitioner :SRI.P.T.MOHANKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :28/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.21149 of 2009 - O
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Dated this the 28th day of July, 2009
J U D G M E N T
This writ petition is filed seeking the following reliefs:
“i) To issue a Writ, Order or Direction in the nature of
certiorari or other appropriate from of writ quashing
Exhibit P4 order as the same in not in accordance with
sound legal principles applicable and unsustainable.
ii) To issue a Writ, Order of Direction in the nature of
mandamus or other appropriate form of writ, commanding
the lower court to grant leave to the petitioner to amend
the plaint as prayed for in Exhibit P3 application”
2. The petitioner is the plaintiff in O.S.No.117/2007 on the
file of the Munsiff-Magistrate Court, Sultan Battery. Suit was one for
fixation of boundary and perpetual prohibitory injunction.
Defendants 3 and 4 in the suit resisted the suit claim contending
that they had obtained a sale certificate over the suit property
pursuant to a decree proceeded against the mother of the first
respondent, and, thereafter the judgment debtors in that case
moved for setting aside the sale. But that was dismissed. The
present petitioner/plaintiff contended that the predecessor of the
W.P.(C).No.21149 of 2009 – O
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first defendant had no exclusive right over the property and he too
had one half right over the same. After written statement was
filed by the contesting defendants 3 and 4 challenging the
maintainability of the suit and also disputing the entitlement of the
petitioner/plaintiff to seek the decree for putting up boundary and
injunction, the reliefs claimed in his suit, it is submitted, when the
case was posted for steps, he moved an amendment application.
Ext.P3 is the copy of the amendment application raising allegations
that the sale certificate obtained in favour of the third defendant is
null and void and not binding on him. Declaratory relief thereof
was also sought for. The learned Munsiff after considering the
objections raised by the defendants 3 and 4, contesting defendants
to the amendment application and hearing the counsel on both
sides, dismissed that application vide Ext.P4 order. Correctness
and propriety of Ext.P4 order is challenged in the writ petition
invoking the supervisory jurisdiction vested with this Court under
Article 227 of the Constitution of India.
3. I heard the counsel for the petitioner. Having regard to
the submissions made and the facts and circumstances presented
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and perusing Ext.P4 order impugned in the petition with reference
to other materials produced, I find no notice to the respondent is
necessary, and it is dispensed with.
4. Perusing Ext.P4 order, it is seen, the learned Munsiff
has taken note of the litigations that had transpired earlier
pursuant to the passing of the decree in favour of the third
defendant which culminated in the sale of a property, which in
auction was purchased by the third defendant. There is no dispute
that the suit property is covered by the decree schedule property
in the previous suit. It has also been noticed that the petitioner
had appeared before the Special Tahsildar, Sultan Battery in a
proceedings relating to the issue of a possession certificate and,
pursuant to such enquiry, possession certificate issued to him was
cancelled by order dated 23.7.2002. Ext.P1 suit is seen filed by
the petitioner, five years later, after cancellation of the possession
certificate, in which the third defendant, auction purchaser, was
also a party. In that context, the suit as instituted was only for
the relief of putting up boundary and prohibitory injunction, but,
later, sought to be amended for a declaration to hold that the sale
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certificate issued in favour of the third defendant as not binding on
the petitioner has to be appreciated. I find no impropriety or
illegality in Ext.P4 order passed by the learned Munsiff that in the
nature of the disputes presented, the amendment application filed
for seeking additional relief of declaration on the allegations raised
in Ext.P3 application cannot be allowed.
The writ petition is devoid of any merit and it is dismissed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-