Kerala High Court
K.K.Subramanian vs Shalvy C.L on 25 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943
OP(C) NO. 2223 OF 2021
AGAINST THE ORDER IN IA 2578/2019 IN OS 77/2019 OF
PRINCIPAL MUNSIFF COURT, KOCHI
PETITIONER//9TH DEFENDANT SOUGHT TO BE IMPLEADED IN O.S.:
K.K.SUBRAMANIAN
AGED 66 YEARS
S/O.KONNUNNI, KANNANTHARA HOUSE,
THEKKENMALIPPURAM, AZHEEKKAL P.O.,
VYPIN, PIN 682 508
BY ADVS.
P.T.JOSE
JOSEPH RONY JOSE
RESPONDENTS/PLAINTIFFS AND DEFENDANTS :
1 SHALVY C.L.
S/O.CHERIKKATHARA LAKSHMANAN,
CHERIKKATHARA, THEKKENMALIPPURAM,
AZHEEKKAL P.O.,
ERNAKULAM 682 508
2 SURESH BABU
S/O.CHERIKKATHARA LAKSHMANAN,
NOW RESIDING AT SREEVALSOM,
NEAR V.VL.P SCHOOL, KONAM,
PALLURUTHY 682 006
3 SULEKHA
W/O.T.P.VIDYASAGAR, (D/O.CHERIKKATHARA
LAKSHMANAN,)
NOW RESIDING AT NAMBOORIKANDATHIL HOUSE,
SEMINARI ROAD,
CANOSSA NAGAR,
EDAKOCHI 682 010
O.P.(C)No.2223 of 2021 ..2..
4 RAJAGOPAL
S/O.CHERIKKATHARA LAKSHMANAN,
CHERIKKATHARA, THEKKENMALIPPURAM,
AZHEEKKAL P.O., ERNAKULAM 682 508
5 VENUGOPAL
D/O.CHERIKKATHARA LAKSHMANAN, CHERIKKATHARA,
THEKKENMALIPPURAM, AZHEEKKAL P.O.,
ERNAKULAM 682 508
6 SOMALATHA (DIED IN JULY 2020)
W/O.CHERIKKATHARA LAKSHMANAN, CHERIKKATHARA,
THEKKENMALIPPURAM, AZHEEKKAL P.O.,
ERNAKULAM 682 508
7 JYOTHINATH
S/O.RAVINDRANATH, PUTHENPURAKKAL,
THEKKENMALIPPURAM, AZHEEKKAL P.O., 682 508
8 SHAJAHAN
S/O.LAKSHMI, RESIDING AT KALATHIPARAMBIL HOUSE,
THEKKENMALIPPURAM, AZHEEKKAL P.O.,
ERNAKULAM 682 508
9 MRINALINI
W/O.GOPI, KALATHIPARAMBIL HOUSE,
THEKKENMALIPPURAM, AZHEEKKAL P.O.,
ERNAKULAM 682 508
10 NIMMY
D/O.GOPI, KALATHIPARAMBIL HOUSE,
THEKKENMALIPPURAM, AZHEEKKAL P.O.,
ERNAKULAM 682 508
11 SIMI
D/O.GOPI, KALATHIPARAMBIL HOUSE,
THEKKENMALIPPURAM, AZHEEKKAL P.O.,
ERNAKULAM 682 508
12 OMANA ANANDAN
W/O.ANANDAN, KALATHIPARAMBIL HOUSE,
THEKKENMALIPPURAM, AZHEEKKAL P.O.,
ERNAKULAM 682 508
O.P.(C)No.2223 of 2021 ..3..
13 NIKHIL ANAND
S/O.ANAND, KALATHIPARAMBIL HOUSE,
THEKKENMALIPPURAM, AZHEEKKAL P.O.,
ERNAKULAM 682 508
14 NEESHMA ANAND
D/O.ANAND, KALATHIPARAMBIL HOUSE,
THEKKENMALIPPURAM, AZHEEKKAL P.O.,
ERNAKULAM 682 508
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.2223 of 2021 ..4..
A.BADHARUDEEN, J.
------------------------------------------------------------
O.P.(C)No.2223 of 2021
------------------------------------------------------------
Dated this the 25th day of January, 2022
JUDGMENT
Order dated 05.03.2020 in I.A.No.2578 of 2019 in
O.S.No.77 of 2019 pending before the Principal Munsiff's
Court, Kochi is under challenge in this original petition filed
under Article 227 of the Constitution of India.
2. The petitioner is aggrieved in the matter of
dismissal of the above IA, where he sought impleadment as
additional defendant in the above suit.
3. Heard the learned counsel for the petitioner.
Though no steps taken to issue notice to the respondents,
memo serving notice to the counsel appearing for the
respondents before the court below has been placed. But
O.P.(C)No.2223 of 2021 ..5..
nobody appeared for the respondents.
4. The learned counsel for the petitioner
submitted that the attempt of the plaintiffs and defendants
in this case is to carve out public property which existed as a
porambokku thodu, by filing this collusive suit. It is
submitted further that because of the levelling of the thodu
by the parties in the suit, the petitioner's property is being
water logged, during rainy season and thereby, the
petitioner is having grievance in this matter.
5. When the learned counsel was asked to
justify his contention with reference to the affidavit in
support of the amendment application, the learned counsel
failed to point out such contention in the affidavit. In the
affidavit, it is stated that the plaintiffs trespassed upon a
portion of the public thodu and thereafter, filed the present
suit with ulterior motives. If the contention raised by the
plaintiffs to the effect that the plaintiffs and defendants
jointly encroached upon the Government property, the
O.P.(C)No.2223 of 2021 ..6..
plaintiffs have every right to file application before the
concerned authorities for appropriate action and also file a
separate suit highlighting his grievance and by moulding
appropriate reliefs. Instead of doing so, the petitioner, on
the basis of vague allegations as has been narrated in the
affidavit in support of the amendment petition, filed this
petition to implead him as additional defendant. The
learned Munsiff dismissed the same holding that the
petitioner is not a necessary party or a proper party in the
said proceedings.
6. Having considered the averments in support
of the affidavit, I also endorse the same view. Therefore, this
original petition lacks merit and the same deserves
dismissal.
Accordingly, this original petition is dismissed.
It is made clear that the petitioner, if aggrieved, in
the matter of conversion of public thodu as private property
of the plaintiffs, he could very well institute a separate suit
O.P.(C)No.2223 of 2021 ..7..
for addressing his grievance as well as the interest of
general public as per law. The said liberty is reserved.
Sd/-
A.BADHARUDEEN, JUDGE
rkj
O.P.(C)No.2223 of 2021 ..8..
APPENDIX OF OP(C) 2223/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF SUIT O.S.77/2019 PENDING
BEFORE PRINCIPAL MUNSIFFS COURT, KOCHI
Exhibit P2 TRUE COPY OF THE COMPLAINT BY THE
PETITIONER TO THE ELAMKUNNAPUZHA
PANCHAYATH DATED 6/3/2019
Exhibit P3 TRUE COPY OF THE IA 2578/2019 DATED
19/10/2019 BEFORE THE PRINCIPAL
MUNSIFF'S COURT FOR IMPLEADING THE
PETITIONER AS AN ADDITIONAL DEFENDANT
NO.9
Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE 1ST RESPONDENT ON BEHALF
OF THE RESPONDENTS 2 TO 5 AGAINST EXT
P3 IMPLEADING PETITON
Exhibit P5 TRUE COPY OF THE ORDER DATED 5/3/2020
PASSED BY THE PRINCIPAL MUNSIFF'S
COURT, KOCHI AGAINST EXT P3 IMPLEADING
PETITION
Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE SECRETARY ELAMKUNNAPUZHA
PANCHAYATH DT. 12.11.2020
