Kerala High Court
Babu vs Divakaran on 13 August, 2021
OP(C).2328/18 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
OP(C) NO. 2328 OF 2018
AGAINST THE ORDER/JUDGMENT IN OS 2036/2011 OF ADDITIONAL
MUNSIFF COURT ,IRINJALAKUDA, THRISSUR
PETITIONER/S:
1 BABU
AGED 52 YEARS
S/O.MANGALATH PARAMBIL LONAPPAN, PULLUR
VILLAGE/DESOM/P.O.680 683, IRINJALAKUDA, THRISSUR
DISTRICT.
2 MANAVALASSERY KURIES PVT. LTD
IRINJALAKUDA P.O, 680121 REPRESENTED BY ITS MANAGING
DIRECTOR, IRINJALAKUDA -680121
BY ADVS.
K.G.BALASUBRAMANIAN
AMBILY (PREMKUMAR)
RESPONDENT/S:
1 DIVAKARAN
AGED 59 YEARS
S/O.THAIVALAPPIL CHATHUNNI, MADAYIKONAM P.O. - 680
712, THALIYAKONAM, MUKUNDAPURAM TALUK, THRISSUR
DISTRICT.
2 ADDL.R2.NISHA
AGED 45 YEARS
W/O. CHERAMMEL EDATHIRUTHIKKARAN SONY, MANAVALASSERY
VILLAGE, IRINJALAKUDA DESOM, MUKUNDAPURAM TALUK.
3 ADDL.R3.SONY
S/O. CHERAMMEL EDATHIRUTHIKKARAN LONAPPAN,
MANAVALASSERY VILLAGE, IRINJALAKUDA DESOM,
MUKUNDAPURAM TALUK.
OP(C).2328/18 2
4 ADDL.R4.JOBY
AGED 48 YEARS
S/O. VELLANIKKARAN ANTHONY, IRINJALAKUDA VILLAGE,
IRINJALAKUDA DESOM, MUKUNDAPURAM TALUK.
5 ADDL.R5.MARY PAULY
AGED 58 YEARS
W/O. CHAKKIYATH PAULY, KARUKUTTI VILLAGE, MOONNAM
PARAMBU KARAYIL DESOM, ALUVA TALUK.
ADDITIONAL RESPONDENT 2 TO 5 (DEFENDANT, 1 TO 4 IN
ORIGINAL SUIT)
IMPLEADED AS PER ORDER IN IA Y21 DATED 02.07.21
BY ADV DEEPU LAL MOHAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 9.7.2021,
THE COURT ON 13.08.2021 DELIVERED THE FOLLOWING:
OP(C).2328/18 3
V.G.ARUN, J.
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OP(C).No. 2328 of 2018
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Dated this the 13th day of August, 2021
JUDGMENT
The petitioners are plaintiffs 2 and 3 in O.S.No.2036 of 2011 on
the files of the Additional Munsiff's Court, Irinjalakkuda. The plaintiffs
in the suit are persons who are conducting business in a building by
name, 'EVM Shopping Complex', after purchasing the shop rooms
from the defendants. According to the plaintiffs, 3 cents of land
belonging to the defendants, situated on the north of the building,
set apart as the building's parking area. The building is marked as
plaint 'A schedule' and the parking area as 'B schedule'. The relief
sought in the suit is to declare plaint 'B schedule' as the parking area
of EVM Shopping Complex and to restrain the defendants from
alienating B schedule. In the suit, the petitioners filed Exhibit P1
application, seeking to implead the 1st respondent herein as the 6th
defendant. The impleading was sought on the premise that the
parking area has been sold to the proposed 6th defendant by way of
a benami transaction. The application for impleading stands
dismissed by Exhibti P2 order. Hence, the original petition.
2. Sri.K.G.Balasubramanian, learned counsel for the petitioners
submitted that the 1st respondent is a necessary party for
adjudication of the issue involved. It is contended that the application
for impleadment is dismissed based on irrelevant considerations and
that the findings in the impugned order will prejudice the petitioners
in the conduct of their suit.
3. Sri.Deepu Lal Mohan, learned counsel appearing for
additional respondents 2 to 5, contended that no valid ground has
been raised, warranting interference with the well reasoned order of
the trial court. The learned counsel takes strong exception against
the manner in which the original petition is filed. It is submitted that
there are five defendants in the suit, none of whom are made parties
to the impleading application or this original petition. According to
the learned counsel, the original petition is liable to be dismissed for
that reason alone. On merits, it is contended that, the specific
averment in the plaint is that the 3 cents shown as 'B schedule' is the
property left after assigning the balance extent to the 1st
respondent. Further, no relief is sought against the 1st respondent.
4. As rightly contended by the learned counsel for the
additional respondents, the specific averment in the plaint is that a
portion of the area set apart for parking was sold by the defendants
to Divakaran (1st respondent herein) one year prior to the filing of the
suit. The remaining extent of 3 cents is shown as B schedule. The
plaintiffs are seeking a decree, declaring B schedule as the parking
area of EVM Shopping Complex and a permanent injunction
restraining the defendants from alienating B schedule. No relief is
sought against the 1st respondent and no application is submitted for
amending the plaint. In the nature of the averments and the reliefs
sought, the presence of the 1st respondent is not necessary for
adjudication and settlement of the question involved in the suit.
Hence, the court below was fully justified in rejecting the prayer for
impleadment.
In the result, the original petition is dismissed.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 2328/2018
PETITIONER ANNEXURE
Annexure A THE PHOTOCOPY OF THE PLAINT IN O.S.NO.
2036/2011 ON THE FILES OF THE ADDITIONAL
MUNSIFF COURT, IRINJALAKUDA.
Annexure B THE PHOTOCOPY OF AMENDED PLAINT IN O.S.
NO. 2036/2011 ON THE FILES OF THE
ADDITIONAL MUNSIFF COURT, IRINJALAKUDA.
Annexure C THE PHOTOCOPY OF OBJECTION DATED
04.06.2018 FILED BY DEFENDANTS 1 TO 4 IN
I.A. NO. 2202/2018 FILED BY DEFENDANTS 1
TO 4 IN I.A. NO. 2202/2018 IN O.S. NO.
2036/2011 ON THE FILES OF THE ADDITIONAL
MUNSIFF , IRINJALAKUDA.
EXHIBIT P1 TRUE COPY OF IA 2202/2018 IN OS 2036/2011
IN THE COURT OF THE ADDITIONAL MUNSIFF,
IRINJALAKUDA.
EXHIBIT P2 TRUE COPY OF ORDER DATED 21.7.2018 ON I.A.
2202/2018 IN OS 2036/2011 IN TH COURT OF
THE ADDITIONAL MUNSIFF, IRINJALAKUDA.
