Karat Sarojini vs Kizhakke Karayil Shyma
2021 Latest Caselaw 4619 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

     TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                       OP(C).No.1784 OF 2018(O)

   AGAINST THE ORDER IN I.A.NO.1576/2018 & I.A.NO.1575/2018 IN
       O.S.NO.331/2016 OF PRINCIPAL MUNSIFF COURT ,KANNUR


PETITIONERS:

      1        KARAT SAROJINI
               D/O.KUNHIRAMAN, AGED 54 YEARS, RESIDING AT
               KARIBUMKARA HOUSE, VILLAGE MUKKU, MANIYOOR AMSOM,
               DESOM, P.O.KOODALI, THALIPARAMBA TALUK, KANNUR
               DISTRICT.

      2        JILNA K.
               D/O.PADMANABHAN, AGED 22 YEARS, RESIDING AT
               KARIBUMKARA HOUSE, VILAGE MUKKU, MANIYOOR AMSOM,
               DESOM, P.O.KOODALI, THALIPARAMBA TALUK, KANNUR
               DISTRICT.

      3        JITHIN K.
               S/O.PADMANABHAN, AGED 20 YEARS, RESIDING AT
               KARIBUMKARA HOUSE, VILAGE MUKKU, MANIYOOR AMSOM,
               DESOM, P.O.KOODALI, THALIPARAMBA TALUK, KANNUR
               DISTRICT.

               BY ADVS.
               SRI.R.PARTHASARATHY
               SRI.RAJESH V.NAIR

RESPONDENTS:

      1        KIZHAKKE KARAYIL SHYMA
               D/O.SREEDHARAN, AGED 34 YEARS, RESIDING AT ARIPPA
               HOUSE, PADANNOT MUNDERI AMSOM, DESOM,
               KANNUR TALUK AND DISTRICT, PIN-670 591.


      2        M.RAJEEVAN
               S/O. GOVINDAN, AGED 48 YEARS, RESIDING AT ARIPPA
               HOUSE,PADANNOT MUNDERI AMSOM, DESOM,
               KANNUR TALUK AND DISTRICT, PIN-670 591.
 OP(C).Nos.1784 & 2597 OF 2018

                                2


      3      KIZHAKKE KARAYIL SREEVA
             D/O.SREEDHARAN, AGED 32 YEARS, RESIDING AT ARIPPA
             HOUSE, PADANNOT MUNDERI AMSOM, DESOM, KANNUR TALUK
             AND DISTRICT, PIN-670 591.

             R1-3 BY ADVS. SRI.M.SURESH KUMAR
             SRI.P.U.SHAILAJAN
             SRI.V.SREEJITH
             SMT.VIDYA KURIAKOSE
             SMT.D.N.NISHANI

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09.02.2021,
ALONG WITH OP(C).2597/2018, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 OP(C).Nos.1784 & 2597 OF 2018

                                3

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

    TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                     OP(C).No.2597 OF 2018

 AGAINST THE ORDER DATED 12.07.2018 IN I.A.NO.1578/2018 IN O.S
    NO.331/2016 BEFORE THE PRINCIPAL MUNSIFF COURT, KANNUR


PETITIONERS/PETITIONERS/PLAINTIFFS IN OS:

      1      KARAT SAROJINI
             AGED 54 YEARS
             D/O. KUNHIRAMAN, RESIDING AT KARIBUMKARA HOUSE,
             VILLAGE MUKKU, MANIYOOR AMSOM, DESOM, P.O. KOODALI,
             THALIPARAMBA TALUK, KANNUR DISTRICT

      2      JILNA K,
             AGED 22 YEARS
             D/O. PADMANABHAN, RESIDING AT KARIBUMKARA HOUSE,
             VILLAGE MUKKU, MANIYOOR AMSOM, DESOM, P.O KOODALI,
             THALIPARAMBA TALUK, KANNUR DISTRICT.

      3      JITHIN K,
             AGED 20 YEARS
             S/O. PADMANABHAN, RESIDING AT KARIBUMKARA HOUSE,
             VILLAGE MUKKU, MANIYOOR AMSOM, DESOM, P.O KOODALI,
             THALIPARAMBA TALUK, KANNUR DISTRICT.

             BY ADVS.
             SRI.R.PARTHASARATHY
             SRI.RAJESH V.NAIR

RESPONDENTS/PETITIONERS/PLAINTIFFS IN OS:
       1     KIZHAKKE KARAYIL SHYMA
             AGED 34 YEARS
             D/O. SREEDHARAN, RESIDING AT ARIPPA HOUSE,
             PADANNOT, MUNDERI AMSOM, DESOM, KANNUR TALUK &
             DISTRICT - 670 591
 OP(C).Nos.1784 & 2597 OF 2018

                                4

      2      M. RAJEEVAN,
             AGED 48 YEARS
             S/O. GOVINDAN, RESIDING AT ARIPPA HOUSE, PADANNOT,
             MUNDERI AMSOM, DESOM, KANNUR TALUK & DISTRICT 670
             591.

      3      KIZHAKKE KARAYIL SREEVA,
             AGED 32 YEARS
             D/O. SREEDHARAN, RESIDING AT ARIPPA HOUSE,
             PADANNOT, MUNDERI AMSOM, DESOM, KANNUR TALUK &
             DISTRICT - 670 591.

             R1 - R3 BY ADVS. SRI.M.SURESH KUMAR
             SRI.V.SREEJITH
             SMT.D.N.NISHANI
             SMT.VIDYA KURIAKOSE
             SRI.P.U.SHAILAJAN

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09.02.2021,
ALONG WITH OP(C).1784/2018(O), THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 OP(C).Nos.1784 & 2597 OF 2018

                                     5

                                   JUDGMENT

[ OP(C).1784/2018, OP(C).2597/2018 ]

Dated this the 9th day of February 2021

These two petitions are filed by plaintiffs in O.S.No.331 of

2016 before the Principal Munsiff Court, Kannur.

2. The learned Munsiff by Ext.P5 in O.P (C)No.2597 of

2018 and Exts.P8 and P9 in O.P(C)No.1784 of 2018 orders

dismissed three applications submitted by the plaintiffs. It is

submitted that the suit was filed for fixation of boundary and

consequential injunction. It is submitted that when the Commission

was taken out for measuring the property, it was found that one of

the persons, who is not a party to the suit was holding property on

the southern side of the plaint schedule property. On the basis of

the Commission Report, the petitioners sought to implead the

southern property owner as the additional defendant in the suit

and filed I.A.No.1576 of 2018 for impleading him as the additional

party. They also filed I.A.No.1578 of 2018 for making

consequential amendments in the suit. It is further submitted that

the plaintiffs purchased the property on the strength of a purchase

certificate, which was omitted to be mentioned in the body of the OP(C).Nos.1784 & 2597 OF 2018

plaint. They therefore sought the particular amendment also to be

incorporated in the plaint. The suit was already listed for trial and

the plaintiffs also sought through I.A.No.1575 of 2018 Commission

Report dated 04.12.2017 to be remitted back on account of the

fact that some of the objections raised as to the correctness of the

report were not considered by the Court below. The

respondents/defendants filed objections to all the applications and

opposed the same. The court below dismissed all the above

applications taking a view that all were belated.

3. I heard the learned counsel for the petitioners as well as

the respondents.

4. Looking at the impugned orders passed by the Court

below, it appears that the applications were not decided on merits

at all. The applications were on the other hand dismissed on the

sole ground that they were filed belatedly. It appears to be a fact

that the additional defendant sought to be impleaded is holding

some property on the southern side of the suit land. The plaintiffs

being the master of the suit have every right to add a proper party

as party to the proceedings. There is no justification with the court

below having taken the view that the suit could proceed in his

absence.

OP(C).Nos.1784 & 2597 OF 2018

5. Having heard the learned counsel appearing on both

sides, I am of the opinion that in order to adjudicate the matter in

dispute involved in the suit, the presence of the proposed

additional defendant is highly essential. The amendment sought is

also rather consequential.

6. In so far as I.A.No.1575 of 2018 is concerned, the court

below has not considered the objections raised by the plaintiffs to

the commission report. Simply holding that the application was

belated, the plea for remittal was negatived. The approach made

by the court below is rather erroneous. I am of the opinion that the

court below shall be called upon to decide the application for

remitting the commission report on merits after hearing both sides

and after holding necessary enquiry in the matter. For the reasons

above stated, I am of the opinion that none of the impugned orders

passed by the court below can be sustained. I hold that they are

liable to be set aside.

In the result, Ext.P8 in O.P.(C)No.1784 of 2018 and

Ext.P5 in O.P(C)No.2597 of 2018 orders are set aside and

I.A.Nos.1576 of 2018 and 1578 of 2018 are allowed. The court

below will proceed to implead the additional defendant and permit

the petitioners to carry out the amendment. After amendment is OP(C).Nos.1784 & 2597 OF 2018

carried out, an opportunity shall be given to the defendants to

submit written statement or additional written statement as the

case may be. I am not passing any orders on I.A.No.1575 of 2018

and the court below is called upon to decide that application on

merits after hearing both sides in accordance with law.

Sd/-

T.V.ANILKUMAR

JUDGE

DK OP(C).Nos.1784 & 2597 OF 2018

APPENDIX OF OP(C) 1784/2018 PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT FIELD IN O.S NO.

331/2016 BEFORE THE PRL. MUNSIFF COURT, KANNUR,

EXHIBIT P2 THE TRUE COPY OF THE WRITTEN STATEMENT FIELD BY DEFENDANTS IN OS.NO. 331/2016 BEFORE THE PRL. MUNSIFF COURT, KANNUR

EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT IN FIELD IN OS.NO. 331/2016 BEFORE THE PRINCIPAL MUNSIFFS COURT, KANNUR

EXHIBIT P4 TRUE COPY OF AFFIDAVIT FILED IN SUPPORT OF I.A 1576/2018 IN OS.NO. 331/2016 FILED BEFORE THE PRINCIPAL MUNSIFF COURT, KANNUR

EXHIBIT P5 THE TRUE COPY OF THE COUNTER IN IA.NO.

1576/2018 IN OS.NO. 331/2016 BEFORE THE PRINCIPAL MUNSIFF COURT, KANNUR

EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF IA. NO. 1575/2018 IN O.S.NO. 331/2016 FILED BEFORE THE PRINCIPAL MUNSIFF COURT, KANNUR

EXHIBIT P7 TRUE COPY OF COUNTER IN IA.NO. 1575/2018 IN OS.NO.331/2016 BEFORE THE PRINCIPAL MUNSIFF COURT KANNUR

EXHIBIT P8 TRUE TYPED COPY OF THE ORDER PASSED IN I.A.NO. 1576/2018 IN OS.NO. 331/2016 DATED 12.07.2016 BEFORE THE PRINCIPAL MUNSIFF COURT, KANNUR

EXHIBIT P9 TRUE TYPED COPY OF THE ORDER PASSED IN IA.NO. 1575/2018 IN O.S. NO. 331/2016 DATED 12.07.2016 BEFORE THE PRINCIPAL MUNSIFF COURT, KANNUR

RESPONDENTS' EXHIBITS: NIL OP(C).Nos.1784 & 2597 OF 2018

APPENDIX OF OP(C) 2597/2018 PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT FILED IN O.S NO.

331/2016 BEFORE THE PRINCIPAL MUNSIFF COURT, KANNUR

EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED IN O.S NO. 331/2016 BEFORE THE PRINCIPAL MUNSIFF COURT, KANNUR

EXHIBIT P3 TRUE COPY OF THE I.A 1578/2018 IN O.S 331/2016 BEFORE THE PRINCIPAL MUNSIFF COURT, KANNUR

EXHIBIT P4 TRUE COPY OF THE COUNTER FILED IN I.A 1578/2018 IN O.S 331/2016 BY THE PRINCIPAL MUNSIFF COURT, KANNUR

EXHIBIT P5 TRUE COPY OF THE ORDER PASSED IN I.A 1578/2018 IN OS 331/2016 BY THE PRINCIPAL MUNSIFF COURT, KANNUR DATED 12-07-2018

RESPONDENTS' EXHIBITS: NIL