Boby P Joseph vs O.J Kuruvila
2022 Latest Caselaw 11579 Ker

                                   1
OP(C) No. 2520 of 2022


                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
   TUESDAY, THE 20TH DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944
                         OP(C) NO. 2520 OF 2022
   AGAINST THE ORDER/JUDGMENT IN IA 6/2022 IN OS 50/2022 OF   THE
                MUNSIFF MAGISTRATE COURT, KOTHAMANGALAM
PETITIONER/S:

            BOBY P JOSEPH
            AGED 54 YEARS
            POTHANIKKATTU HOUSE, MALAYANKEEZHU,
            KOTHAMNAGALAM VILLAGE, KOTHAMANGALAM TALUK ,
            ERNAKULAM, PIN - 686691
            BY ADVS.
            ALEXANDER JOSEPH
            AKHILASREE BHASKARAN
            ANTONY NIKHIL REMELO


RESPONDENT/S:

     1      O.J KURUVILA
            AGED 75 YEARS
            OLIYAPURATH HOUSE, RAMALLOOR KARA,
            KOTHAMANGALAM VILLAGE, KOTHAMNAGALAM TALUK ,
            ERNKAULAM, KERALA, PIN - 686691
     2      STATE OF KERALA
            REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM ,
            COLLECTORATE , KAKKANADU , ERNAKULAM, KERALA, PIN -
            695001
     3      THE EXECUTIVE ENGINEER
            PWD ROADS DIVISION, MUVATTUPUZHA
            ERNAKULAM, KERALA, PIN - 686673
     4      THE ASSISTANT EXECUTIVE ENGINEER
            PWD ROAD SUB DIVISION, KOTHAMANGALAM
            ERNAKULAM, KERALA, PIN - 685603
     5      THE TAHASILDAR
            TALUK OFFICE,
            MINI CIVIL STATION, KOTHAMANGALAM ,
            ERNAKULAM KERALA, PIN - 686691


            SMT.SYLAJA, GOVERNMENT PLEADER - R2 TO R5

      THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                      2
OP(C) No. 2520 of 2022

                           C.S DIAS,J.
                       ---------------------------
                  OP(C) No. 2520 of 2022
                      -----------------------------
          Dated this the 20th day of December, 2022.

                              JUDGMENT

Aggrieved by Ext P9 order passed in IA No.6/2022 in

OS No.50/2022 of the Court of the Munsiff,

Kothamangalam, the petitioner - a third party to the suit,

has filed the original petition. The first respondent is the

plaintiff and the respondents 2 to 5 are the defendants.

2. The facts in a narrow compass, relevant for the

determination of the original petition, are: the first

respondent has filed the suit against the respondents 2 to

5 for a decree of declaration of title and possession over

66 Sq M of land and building therein and for other

consequential reliefs. The plaint schedule property is

situated on the western boundary of Kothamangalam -

Perumpankuthu PWD Road, a State Highway. The first

respondent has created a sale deed in his favour. There

are large scale encroachments in the area. This Court, by

Ext P4 judgment in WP(C)No.28748/2019, has directed the

OP(C) No. 2520 of 2022

respondents 2 to 5 to remove the encroachments. But, no

effective steps have been taken by the respondents 2 to 5.

Therefore, the petitioner filed WP(C)No.22729/2021

before this Court for removing the encroachments. By Ext

P5 judgment the writ petition was allowed. Thereafter,

the third respondent issued a notice to the first

respondent to conduct a survey measurement of the road

poramboke. The third respondent has issued the notice

with a wrong description of the property. The respondents

2 to 5 have not taken any interest to protect the PWD road

poramboke. Later, the first respondent filed the suit and

an order of status-quo has been passed. Hence, the

petitioner filed IA No.6/2022 (Ext P7) in the suit to get

himself impleaded in the suit. The application was

resisted by the first respondent through Ext P8 objection.

The court below, by the impugned Ext P9 order, dismissed

Ext P7 application. Ext P9 order is ex facie illegal and

unsustainable in law. Hence, the original petition.

OP(C) No. 2520 of 2022

3. Heard; Sri.Alexander Joseph, the learned counsel

appearing for the petitioner and the learned Government

Pleader appearing for the respondents 2 to 5.

4. The question is whether there is any illegality in

Ext P9 order.

5. The suit is filed against the respondents 2 to 5,

for a decree to declare that the first respondent has title

and possession over the plaint schedule property and for

other consequential reliefs.

6. Undisputedly, no relief is claimed against the

petitioner. The suit is not filed in any representative

capacity. The petitioner has filed Ext P7 application to

protect public property as a public spirited citizen.

7. The Hon'ble Supreme Court in Sudhamayee

Pattnaik and Others Versus Bibhu Prasad Sahoo and

Others [2022 SCC Online SC 1234] has succinctly held

that the plaintiff is the dominus litis and, therefore, a

person can be impleaded as an additional party in the suit

under Order 1 Rule 10 of the Code of Civil Procedure

either at the instance of the Court or the plaintiff. The

OP(C) No. 2520 of 2022

non-impleadment of any other person as a defendant,

against the wish of the plaintiff, shall be at the risk of the

plaintiff.

In the case on hand, the first respondent has not

sought for any relief against the petitioner. Even going by

the case of the petitioner, the property belongs to the

respondents 2 to 5. This Court has already by Exts P4 and

P5 judgments directed the respondents 2 to 5 to remove

the encroachments, if any. In the above conspectus, I am

of the definite view that there is no necessity for the

petitioner to be impleaded in the suit since he has no

stake in the matter, other than his public interest, which

the respondents 2 to 5 are bound to take care of. I do not

find any error in Ext P9 order, warranting interference by

this Court under Article 227 of the Constitution of India.

The original petition fails and is dismissed.

sd/-

Sks/20.12.2022                         C.S.DIAS, JUDGE

OP(C) No. 2520 of 2022


                     APPENDIX OF OP(C) 2520/2022

PETITIONER EXHIBITS
Exhibit P1          TRUE COPY OF THE PLAINT IN OS NO 50/2022

DATED 14/03/2022 OF THE MUNSIFFS COURT KOTHMANGALAM .

Exhibit P2 TRUE COPY OF THE SALE DEED NO 2257/2012 DATED 04/04/2012 OF KOTHAMANGALAM SRO Exhibit P3 TRUE READABLE COPY OF THE SETTLEMENT DEED NO 1200/1124(ME) OF KOTHAMANGALAM SRO DATED 24TH OF MONTH OF DHANU OF 1124 (ME) OF KOTHAMANGALAM SRO .

Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 07/02/2020 IN WP© 28748 /2019 OF THIS HON'BLE HIGH COURT OF KERALA Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 17/11/2021 IN WP© NO 22729/2021 OF THIS HON'BLE HIGH COURT OF KERALA .

Exhibit P6 TRUE COPY OF THE NOTICE DATED 25/02/2022 OF THE 3RD RESPONDENT TO THE 1ST RESPONDENT .

Exhibit P7 TRUE COPY OF THE IA NO 6/2022 IN OS 50/2022 DATED 10/08/2022 OF THE MUNSIFF'S COURT KOTHAMANGALAM.

Exhibit P8 TRUE COPY OF THE OBJECTION DATED 16/09/2022 IN IA NO 6/2022 IN OS NO 50/2022 OF THE MUNSIFF'S COURT KOTHMANGALAM.

Exhibit P9 TRUE CERTIFIED COPY OF THE ORDER DATED 24/11/2022 IN IA NO 6/2022 IN OS NO 50/2022 OF THE MUNSIFF'S COURT KOTHAMANGALAM.