Kerala High Court
Naseema Kabeer vs Beepathumma on 10 February, 2023
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OP(C) No.197 of 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
OP(C) NO. 197 OF 2023
AGAINST THE ORDER/JUDGMENT in IA No.925/2022 in OS 371/2011
OF ADDITIONAL SUB COURT, PALAKKAD
PETITIONER/S:
1 NASEEMA KABEER,AGED 76 YEARS,/O M. AHAMMED KABEER,
RESIDING AT APPLE PHOTO HOUSE, SWATHI JUNCTION,
ALATHUR TOWN, TALUK, PALAKKAD, PIN - 678541
2 MANOJ KABEER,AGED 54 YEARS,S/O M. AHAMMED KABEER,
RESIDING AT APPLE PHOTO HOUSE, SWATHI JUNCTION,
ALATHUR TOWN, TALUK, PALAKKAD, PIN - 678541
3 MERLIYA FAIZAL,AGED 53 YEARS,W/O FAIZAL & D/O M.
AHAMMED KABEER, RESIDING AT ROSE VILLA, FAROOK,
KOZHIKODE, PIN - 673631
BY ADVS.
P.G.JAYASHANKAR
P.K.RESHMA (KALARICKAL)
S.RAJEEV (K/001711/2019)
SAJANA V.H
VINITHA S.T.
RUBY K. ROY
RESPONDENT/S:
1 BEEPATHUMMA,AGED 74 YEARS,W/O A. MUSTAFFA & D/O
MOHAMMEDKUTTY, ANTHU PARAMBIL HOUSE, VIYYUR,
THRISSUR, PIN - 680010
2 BALKHEESE,AGED 73 YEARS,W/O (L) M. ABDUL KAREEM &
D/O MOHAMMEDKUTTY, HOUSEWIFE, NAMBOOTHIRI MADOM,
CHANDAPURA, VADAKKENADA, KODUNGALLUR, THRISSUR, PIN
- 680664
3 KADEEJA BEGAM,AGED 72 YEARS,W/O.(L) M. ABDUL SAMAD
& D/O MOHAMMEDKUTTY, RESIDING AT TC 35/372 V.G.157,
NEW HOUSE, VALLAKKADAVU P.O, VALIYATHURA,
THIRUVANANTHAPURAM, PIN - 695007
4 SOWRIYATH,AGED 68 YEARS,W/O N. SHAFEEK & D/O
MOHAMMEDKUTTY, RESIDING AT MANAPPURAM BENGLOW,
MANAYIKULANGARA, KOLLAM, PIN - 691003
5 RUKKIYA,AGED 71 YEARS,W/O YUSUFF KUNJU, RESIDING
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OP(C) No.197 of 2023
A.S. BUILDINGS, PALAYAPETTA, PALAKKAD - 678 001,
AND PRESENTLY C/O MRS. KADEEJA BEGUM, TC 35/372,
V.G.157, NEW HOUSE, VALLAKKADAVU P.O, VALIYATHURA,
THIRUVANANTHAPURAM, PIN - 695007
6 JUMAILATH,AGED 59 YEARS,W/O MAJEED (L), ZEENATH
MANZIL, PUNTHALATHAZHAM, KOLLAM, PIN - 691004
7 THEHAMIN,AGED 39 YEARS,D/O MAJEED (L), ZEENATH
MANZIL, PUNTHALATHAZHAM, KOLLAM, PIN - 691004
8 AYSHA,AGED 29 YEARS,D/O MAJEED (L), ZEENATH MANZIL,
PUNTHALATHAZHAM, KOLLAM, PIN - 691004
9 THAHAJAN,AGED 32 YEARS,D/O MAJEED (L), ZEENATH
MANZIL, PUNTHALATHAZHAM, KOLLAM, PIN - 691004
10 FARISA,AGED 69 YEARS,W/O SULAIMAN (L), RESIDING AT
DOOR NO. 180, 4TH CROSS, GAYATHRIPURAM, 2ND STAGE,
UDAYAGIRI, MYSORE, AND PRESENTLY RESIDING AT #96,
2ND CROSS, 2ND STAGE, UDAYAGIRI, MYSORE, KARNATAKA,
PIN - 590019
11 PARVIN,AGED 52 YEARS,D/O SULAIMAN, (L), RESIDING AT
DOOR NO. 180, 4TH CROSS GAYATHRIPURAM, 2ND STAGE,
UDAYAGIRI, MYSORE, KARNATAKA, AND PRESENTLY
RESIDING AT #96, 2ND CROSS, 2ND STAGE, UDAYAGIRI,
MYSORE, KARNATAKA, PIN - 590019
12 MOHAMMED RAFI,AGED 65 YEARS,S/O AHAMED KABEER, MARK
HOUSE, POST OFFICE ROAD, ALATHUR TALUK, PALAKKAD,
PRESENTLY RESIDING AT MARK HOUSE, CHANDRANAGAR,
PALAKKAD, PIN - 678007
13 DIRECTOR OF PUBLIC INSTRUCTION,VAZHUTHACAUD,
THIRUVANANTHAPURAM, PIN - 695014
14 DISTRICT EDUCATIONAL OFFICER,MUNICIPAL COMPLEX,
ROBINSON ROAD, OPPOSITE GOVERNMENT HOSPITAL, SANTHI
NAGAR, SULTANPET, PALAKKAD, PIN - 678014
15 DEPUTY DIRECTOR OF EDUCATION,KENATHUPARAMBU,
KUNATHURMEDU, PALAKKAD, PIN - 678001
16 A. NOORJAHAN,AGED 64 YEARS,W/O BAPU D/O V. AHAMED
KABEER, GOLDEN MALABAR BUILDING, KALLAYI ROAD,
OPPOSITE PUSHPA THEATRE, KOZHIKODE, PRESENTLY
RESIDING AT FLAT NO 9E, GOLDEN OAK APARTMENTS,
MALABAR BUILDERS, NEAR OLD PUSHPA THEATER JUNCTION,
KALLAI ROAD, CALICUT, PIN - 673002
17 A. MUMTAZ,AGED 63 YEARS,W/O NEWMAN & D/O AHAMED
KABEER, RESIDING AT C/O DR. ABDUL SHUKKOOR,
KIZHAKKEVEEDU, VANUR ROAD, ALATHUR, ALATHUR TALUK,
PALAKKAD, PIN - 678541
18 A. ASHRAF,AGED 59 YEARS,S/O V. AHAMED KABEER,
EMPLOYED IN HAJI HASSAIN ALIREZ COMPANY, P.B. NO.
40, MAIN SECTION RING ROAD BRANCH, JEDDAH, SAUDI
ARABIA, PIN - 21411
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OP(C) No.197 of 2023
19 M. AZAD,AGED 57 YEARS,S/O V. AHAMED KABEER,
BUSINESS, PLACKAL VILLA, CHAKKALA MUKKU, SREE
KARIYAM, THIRUVANANTHAPURAM, PRESENTLY RESIDING AT
OLD POST OFFICE ROAD, NEAR GOVERNMENT HOSPITAL,
ALATHUR, PALAKKAD, PIN - 678541
20 A. SHANAVAZ,AGED 55 YEARS,S/O V. AHAMED KABEER,
EDAPARAMBU, BANK ROAD, ALATHUR, ALATHUR TALUK,
PALAKKAD, PRESENTLY RESIDING AT OLD POST OFFICE
ROAD, NEAR GOVERNMENT HOSPITAL, ALATHUR, PALAKKAD,
PIN - 678541
21 SAJEEDA NOUSHAD,AGED 59 YEARS,W/O A. NOUSHAD, OMF
COMPOUND, BANK ROAD, ALATHUR, PALAKKAD, PIN -
678541
22 KADEEJA JASHIR,AGED 26 YEARS,D/O A. NOUSHAD, OMF
COMPOUND, BANK ROAD, ALATHUR, PALAKKAD, PIN -
678541
23 KABEER NOUSHAD,AGED 23 YEARS,s/O A. NOUSHAD, OMF
COMPOUND, BANK ROAD, ALATHUR, PALAKKAD, PIN -
678541
BY ADVS.
K.SUJAI SATHIAN
DEEPA NARAYANAN(K/1754/1995)
PREETHI. P.V.(K/1819/1999)
M.V.BALAGOPAL(K/707/2009)
GOURI MEEMPAT(K/001516/2021)
SANGEETHA SREEKUMAR(K/2099/2022)
T.SETHUMADHAVAN (SR.)(S-310)
SRI.V.V.SIDHARTHAN(SR)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(C) No.197 of 2023
C.S.DIAS, J.
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OP(C) No.197 of 2023
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Dated this the 10th day of February, 2023.
JUDGMENT
Aggrieved by Ext P6 order passed in IA No.925/2022
in OS No.371/2011 by the Court of the Subordinate Judge
(Additional), Palakkad, the plaintiffs have filed the original
petition. The respondents are the defendants in the suit.
2. The relevant background facts leading to Ext P6
order are: the petitioners have filed the suit for partition.
The suit is resisted by the respondents Nos.12 and 15
through Exts P2 and P3 written statements. The suit
stands posted for pre-trial steps. The twelfth
respondent/thirteenth defendant filed IA No.975/2022
(Ext P4) to frame an additional issue. Although the
petitioners filed Ext P5 written objection to Ext P4
application, the court below, by the impugned Ext P6
order, has allowed Ext P4 application and formulated an
OP(C) No.197 of 2023
additional issue. Ext P6 is patently wrong and erroneous.
Hence, the original petition.
3. Heard; Sri.P.G Jayashankar, the learned counsel
appearing for the petitioners, Sri.Sethumadhavan.T, the
learned Senior Counsel appearing for the twelfth
respondent and Sri. Sidharthan V.V, the learned Senior
Counsel appearing for the third respondent on admission.
4. The short question is, whether there is any
illegality in Ext P6 order.
5. Ext P1 plaint has been instituted, inter alia, for
a decree for partition. The suit is resisted by the
respondents Nos.12 and 15 through Exts P2 and P3
written statements.
6. In Ext P2 written statement, the twelfth
respondent has categorically averred in paragraph No.16
that, the corporate management, which is managing the
affairs of the property as well as the educational
institutions and recognized by the statutory authorities, is
not made a party in the suit. Hence, the suit is bad for
non-joinder of necessary parties.
OP(C) No.197 of 2023
7. The fifteenth respondent has also filed Ext P3
written statement almost on the same lines as in Ext P2
written statement.
8. When the suit was posted for pre-trial steps, the
twelfth respondent filed Ext P4 application, to raise an
additional issue, i.e., as to whether the suit is bad for non-
joinder of necessary parties.
9. The court below, by the impugned Ext P6 order,
after adverting to the contentions in Exts P4 application
and P5 counter statement, has allowed the application
and raised an additional issue, which reads as follows:
"Is the suit bad for non-joinder of necessary
party?"
10. It is rudimentary, issues are formulated based on
the pleadings on record.
11. The respondents Nos.12 and 15, in Exts P2 and
P3 written statements, have specifically contended that
the suit is bad for non-joinder of the corporate
management, who is a necessary party.
OP(C) No.197 of 2023
12. In the light of the said contention in the written
statements, the court below, on the basis of the mandate
under Order XIV of the Code of Civil Procedure, has
framed the above additional issue. Now, whether there is
any merit in the said issues or not is a matter that is to be
decided on merits, and not at the present stage. I do not
find any error in court below framing an additional issue
based on the pleadings, warranting interference by this
Court under Article 227 of the Constitution of India. The
original petition is meritless and is consequently
dismissed.
sd/-
sks/10.2.2023 C.S.DIAS, JUDGE
OP(C) No.197 of 2023
APPENDIX OF OP(C) 197/2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE PLAINT IN O.S. NO. 371
OF 2011 ON THE FILES OF THE ADDITIONAL
SUBORDINATE JUDGES COURT, PALAKKAD
Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED
BY THE 12TH RESPONDENT HEREIN IN EXT P1
SUIT
Exhibit P3 A TRUE COPY OF THE WRITTEN STATEMENT FILED
BY THE 15TH RESPONDENT HEREIN IN EXT P1
SUIT
Exhibit P4 A TRUE COPY OF I.A. NO. 975 OF 2022
PREFERRED BY THE 12TH RESPONDENT IN EXT P1
SUIT
Exhibit P5 A TRUE COPY OF THE COUNTER FILED BY THE
PETITIONERS HEREIN TO EXT P4
Exhibit P6 A TRUE COPY OF THE ORDER DATED 15.11.2022
IN I.A. NO. 925 OF 2022 IN O.S. NO. 371 OF
