Kerala High Court

N.Ganapathy Pillai vs Nil on 17 February, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

      WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942

                        OP(C).No.712 OF 2018(O)

      AGAINST THE ORDER IN I.A.NO.1892/2017 IN AS 161/2014 DATED
          13-12-2017 OF II ADDITIONAL DISTRICT COURT, KOLLAM


PETITIONER/1ST APPELLANT IN THE APPEAL:

             N.GANAPATHY PILLAI,
             S/O LATE NANU PILLAI, AGED 75 YEARS, RESIDING AT
             GANESH BHAVAN, OONNINMOODU, POOTHAKULAM VILLAGE,
             PARAVUR, KOLLAM.

             BY ADV. SRI.B.MOHANLAL

RESPONDENTS/4TH APPELLANT IN THE APPEAL/1ST RESPONDENT IN THE
APPEAL/RESPONDENTS 3 TO 5 (LEGAL HEIRS OF THE DECEASED ORIGINAL
2ND RESPONDENT IN THE APPEAL) & RESPONDENTS 6 TO 26 (RESPONDENTS 3
TO 24 IN THE APPEAL):

      1      SMT.PANKAJAKSHI AMMA,
             D/O LATE. KUNJI AMMA, THEKKE VEEDU, VI/10,POOTHAKULAM
             VILLAGE, POOTHAKULAM PO, KOLLAM.691302.

      2      SMT. M. LAKSHMIKUTTY AMMA,
             W/O LATE JANARDHANAN PILLAI, PADMAVILASOM
             VEEDU,PAMPURAM, PARIPPALLY PO, KOLLAM (FROM
             ANDOPARAMBU VEEDU,POOTHAKULAM VILLAGE, KOLLAM) 691574

      3      SMT. LEELA,
             W/O LATE RAVI, LAKSHMI VIHAR, POOTHAKULAM PO,
             KOLLAM.691302.

      4      SMT. LEKSHMI,
             D/O LATE RAVI, LAKSHMI VIHAR, POOTHAKULAM PO.KOLLAM-
             691302.

      5      SMT. GREESHAMA,
             D/O LATE RAVI, LAKSHMI VIHAR, POOTHAKULAM PO.KOLLAM-
             691302.

      6      SRI. J MANOHARAN,
             S/O LATE. JANARDHANAN PILLAI, ANDOPARAMBU
             VEEDU,POOTHAKULAM VILLAGE, POOTHAKULAM PO, KOLLAM-
             691302.
 OP(C).No.712 OF 2018(O)             2

       7      SRI. J.P SANTHOSH,
              S/O LATE JANARDHANAN PILLAI, ANDOPARAMBU
              VEEDU,POOTHAKULAM VILLAGE, POOTHAKULAM PO,
              KOLLAM.691302.

       8      SRI. L.J SAJAN,
              S/O LATE JANARDHANAN PILLAI, PADMAVILASOM
              VEEDU,PAMPURAM, PARIPPALLY PO, KOLLAM.691574.

       9      SMT. L.J GEETHA,
              D/O LATE JANARDHANAN PILLAI, PADMAVILASOM
              VEEDU,PAMPURAM, PARIPPALLY PO, KOLLAM.691574.

       10     SRI. MURALEEDHARAN NAIR,
              ANDOPARAMBU VEEDU, POOTHAKULAM PO, KOLLAM-691302,
              (SREEVILASOM VEEDU, CHITTAYIKODU DESOM, NAVAIKULAM
              VILLAGE, THIRUVANANTHAPURAM DISTRICT)

       11     SRI. MOHANAN,
              S/O THANKAPPAN CHETTIYAR, M.R BHAVAN,
              KURAKKANNI,VARKALA PO, THIRUVANANTHAPURAM. 695141.

       12     SRI RAJU,
              S/O LATE. RAGHAVAN PILLAI, USHA
              MANDIRAM,POOTHAKULAM PO, KOLLAM-691302.

       13     SMT. BINDHU,
              D/O GOPINATH, MADURA VEEDU, KOONAYIL
              VEEDU,POOTHAKULAM PO, KOLLAM-691302

       14     SRI. RADHAKRISHNA PILLAI,
              S/O LATE. JANARDHANAN PILLAI, SANGEETHA BHAVAN,
              (REJESWARI MANDIRAM), PARAPPURAM, AMMATHU
              MUKKU,POOTHAKULAM PO, KOLLAM-691302.

       15     SRI GOPINATH,
              S/O LATE. KRISHNAN NAIR, MADURA VEEDU, KOONAYIL
              VEEDU,POOTHAKULAM PO, KOLLAM-691302.

       16     SMT. SOUMYA,
              D/O TULASEEDHARAN PILLAI, USHA MANDIRA,POOTHAKULAM
              PO, KOLLAM -691302.

       17     SRI. RADHAKRISHNAN PILLAI,
              S/O CHALLAPPAN PILLAI, ANDOPARAMBU
              VEEDU,POOTHAKULAM VILLAGE, POOTHAKULAM PO, KOLLAM-
 OP(C).No.712 OF 2018(O)             3

              691302.

       18     SRI ANIL KUMAR,
              S/O LATE. RAGHAVAN PILLAI, K.P COTTAGE,POOTHAKULAM
              VILLAGE, POOTHAKULAM PO, KOLLAM-691302.

       19     SMT. PRAMEELA,
              W/O ANILKUMAR, K.P COTTAGE, POOTHAKULAM
              VILLAGE,POOTHAKULAM PO, KOLLAM-691302

       20     SMT. SAVITHRI,
              D/O LATE.THANKAMMA, SABARI VEEDU, POOTHAKULAM
              VILLAGE,POOTHAKULAM PO, KOLLAM-691302.

       21     SRI. RAJENDRA KURUP,
              S/O LATE. VAMADEVAN PILLAI, RAJENDRA
              VILASOM,POOTHAKULAM VILLAGE, POOTHAKULAM PO,
              KOLLAM-691302.

       22     SMT. KALA,
              W/O RAJENDRA KURUP, RAJENDRA
              VILASOM,POOTHAKULAMVILLAGE, POOTHAKULAM PO, KOLLAM.
              691302.

       23     SMT. KALAPATHY,
              D/O DROUPATHY AMMA, ANATHARA VEEDU, AYATHIL
              CHERRY,VADAKKEVILA VILLAGE, VADAKKEVILA PO, KOLLAM-
              691010.

       24     SRI BABU,
              KUZHIKALIZHIKKATHU VEEDU, POOTHAKULAM
              VILLAGE,POOTHAKULAM PO, KOLLAM-691302.

       25     SMT. BEENA,
              D/O AMBUJAKSHI AMMA, SREENILAYAM (ANDOPARAMBU
              VEEDU)POOTHAKULAM VILLAGE, POOTHAKULAM PO, KOLLAM-
              691302.

       26     SRIL RAJENDRAN PILLAI,
              R.V LAND, H.NO.594/A, POOTHAKULAM
              VILLAGE,POOTHAKULAM PO, KOLLAM-691302.


     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C).No.712 OF 2018(O)                    4




                                  JUDGMENT

Petitioner who is the first appellant in AS

No.161 of 2014 before the II Additional

District Judge, Kollam has filed this OP

challenging Ext.P5 order dated 13.12.2017

passed by the appellate court. He sought to

delete appellants 2 to 6 in the appeal

contending that they have become unnecessary

parties to the suit as well as appeal. The

court below did not accept the contention and

dismissed I.A No.1892 of 2017 by the impugned

order.

2. Suit was filed for recovery of

possession and other reliefs. During the

course of the trial, some of the plaintiffs in

the suit passed away. Their death was not

timely brought to the notice of the trial

court. It is a fact that first plaintiff

filed the suit on his behalf as well as

plaintiffs 2 to 6 representing them as their

power of attorney holder. The proof affidavit

filed by first plaintiff was on his behalf as

well as co-plaintiffs whom he represented as

their power of attorney holder. The court

below having taken notice of the fact that the

affidavit was filed on behalf of the dead

persons also, dismissed the suit. AS No.161

of 2014 was filed challenging the decree and

judgment dismissing the suit.

3. During the pendency of the appeal, it

was pointed out by the learned counsel for the

respondents that the deceased plaintiffs were

again made parties to the appeal and legal

representatives of the deceased were not

brought on record. When this was pointed out,

the first appellant filed I.A.No.1892 of 2017

seeking to delete appellants 2 to 6 from the

party array. The deletion was apparently

sought on the ground that the first appellant

(first plaintiff) alone had claimed title over

the suit property and sought recovery of

possession and other reliefs though co-

plaintiffs were also represented in the suit.

Going by the plaint contentions also, it

appears that the first appellant alone

asserted exclusive title in respect of the

property and claimed the reliefs. In that

factual scenario, it goes without saying that

appellants 2 to 6 (plaintiffs 2 to 6) are no

longer necessary parties either in the appeal

or in the original suit.

4. The court below seems to have taken a

view that even to seek deletion of parties

also, the legal representatives ought to came

on record. This view appears to be rather

fallacious. Once it is shown that first

appellant alone has claimed title over the

property and is entitled to sue for recovery,

presence of other appellants in the suit is

quite unnecessary. In my view, the court below

took a wrong view of the matter and passed the

impugned order. Even otherwise, the deletion

of co-appellants should be accepted as made at

first appellant's own risk.

In the result, OP succeeds and the impugned

order is set aside. The courts below will

permit first appellant/first plaintiff to

delete appellants 2 to 6 (plaintiffs 2 to 6)

from the appeal/suit and proceed with the

appeal/suit. This being an old appeal of 2014,

there will be a direction to the appellate

court to dispose of the appeal within a

period of three months from the date of

receipt of a certified copy of this judgment.

Sd/-

T.V.ANILKUMAR, JUDGE pm

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF AMENDED PLAINT IN O.S NO.304/2011 FILED BY THE PETITIONER AND OTHERS BEFORE THE MUNSIFF MAGISTRATE COURT, PARAVOOR.

EXHIBIT P2 THE TRUE COPY OF THE JUDGMENT DATED 21.7.2014 IN O.S NO.304/2011 OF THE MUNSIFF MAGISTRATE COURT, PARAVOOR.

EXHIBIT P3 THE TRUE COPY OF THE MEMORANDUM OF APPEAL A.S NO.161/2014 FILED BY THE PETITIONER AND OTHERS BEFORE DISTRICT COURT, KOLLAM.

EXHIBIT P4 THE TRUE COPY OF THE INTERLOCUTORY APPLICATION I.A NO.1892/2017 IN A.S NO.161/2014 FILED BY THE PETITIONER AND OTHERS BEFORE DISTRICT COURT, KOLLAM.

EXHIBIT P5 THE TRUE COPY OF THE ORDER DATED 13.12.2017 IN I.A NO.1892/2017 IN A.S NO.161/2014 OF THE DISTRICT COURT, KOLLAM.