IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 WP(C).No. 19385 of 2009(O) -------------------------- PETITIONER(S): --------------- 1. ST.THOMAS ORTHODOX SYRIAN CATHEDRAL, KADAMPANAD, KADAMPANAD NORTH MURI, KADAMPANAD VILLAGE, ADOOR TALUK, REPRESENTED BY ITS VICAR, FR.THOMAS MATHEW. 2. M.GEORGE, AGED 59 YEARS, S/O.MATHAI, TRUSTEE, ST.THOMAS ORTHODOX SYRIAN CATHEDRAL, NADASALAKKAL BUNGLAW, KADAMPANAD NORTH MURI, KADAMPANAD VILLAGE. BY ADV. SRI.A.BALAGOPALAN RESPONDENT(S): --------------- 1. V.THOMAS, AGED 78 YEARS, S/O.GEEVARGHESE MUTHALALI, PALLIVATHUKKAL, KADAMPANAD NORTH MURI, KADAMPANAD VILLAGE. 2. K.Y.VARGHESE, AGED 66 YEARS, S/O.YOHANNAN, KOTTINATTU MALAYIL, KADAMPANAD NORTH MURI, KADAMPANAD VILLAGE. 3. BABYKUTTY, S/O.LUKOSE, AGED THACHEERAZHIKATHU HOUSE, KADAMPANAD NORTH MURI, KADAMPANAD VILLAGE. 4. SUNNY P.SAMUEL, AGED 39 YEARS, S/O.PAPPAN, PEACE COTTAGE, KADAMPANAD NORTH MURI, KADAMPANAD VILLAGE. 5. SANEESH.G.ALEXANDER, AGED 24 YEARS, S/O.ALEXANDER, ELAVUKATTU ALEX VILLA, KADAMPANAD NORTH MURI, KADAMPANAD VILLAGE. WP(C).No. 19385 of 2009 6. D.MATHEW, AGED 35 YEARS, NELLIMUKAL MUKALETH VILAYIL, KADAMPANAD NORTH MURI, KADAMPANAD VILLAGE. 7. EDWIN JOHNSON, NUSAVU HOUSE, IVERKALA, KUNNATHOOR VILLAGE, KUNNATHOOR TALUK. 8. RANJITH.C.BABY, S/O.BABY, AGED 34 YEARS, CHAKKALAYIL, KADAMPANAD NORTH MURI, KADAMPANAD VILLAGE. 9. ABY P.CHERIAN, AGED 23 YEARS, S/O.CHERIAN, PUTHENPURAYIL, KADAMPANAD NORTH MURI, KADAMPANAD VILLAGE. ADV. SRI. ABRAHAM VAKKANAL, SENIOR ADVOCATE FOR R1 SRI. PAUL ABRAHAM VAKKANAL SRI. DIJO SEBASTIAN SMT. KALA G NAMBIAR FOR R2, R3, R4, R6, AND R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19385 of 2009 APPENDIX Petitioners Exhibits: Ext.P1: True copy of the plaint in O.S. No.33/2005 of the Subordinate Judge's Court, Pathanamthitta. Ext.P2: True copy of the written statement filed by the petitioners along with other defedants in the suit. Ext.P3: True copy of the I.A. No. 998/2007 supported by the affidavit. Ext.P4: True copy of the judgment passed by the Subordinate Judge's Court, Pathanmthitta dt. 8.10.2007 Ext.P5: True copy of the judgment passed by the additional District Court, Pathanamthitta in A.S.No.124/2007 dt.29.8.2008 Ext.P6: True copy of I.A.No.1424/2008 in O.S.No.33/2005 dt.3.12.2008 supported by the Affidavit of the first respondent. Ext.P7: True copy of the counter affidavit filed by the petitioners in Exhibit P6 application. Ext.P8: True copy of the order passed by the Subordinate Judge's Court, Pathanamthitta in I.A. No.1424/2008 in O.S.No.33/2005. /True copy/ P.A. To Judge S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.19385 OF 2009 -------------------------------- Dated this the 7th day of December 2009 ---------------------------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to ext.P8 order, scrutinise the name and quash the same by a writ in the nature of certiorari or any other appropriate writ, order or direction. ii) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the Subordinate Judge's Court, Pathanamthitta to proceed with the suit O.S No.33/2005 strictly in accordance with the directions contained in Ext.P5 judgment passed by the District Court, Pathanamthitta. Iii) Award cost of these proceedings to the petitioners. iv) Issue any other writ, order or direction, as this Hon'ble Court may deem fit and proper in the circumstances of the case. W.P.(C).No.19385 OF 2009 Page numbers 2. Petitioners are defendants 1 and 2 in O.S No.33 of 2005 on the file of the Sub Court, Pathanamthitta. First respondent is the plaintiff and other respondents codefendants in the suit. The above suit was filed by the first respondent for a declaration that he was not a defaulter to the first defendant and his exclusion from the annual general body meeting held in 2005-2006 of the Cathedral for electing the office bearers was illegal. He also sought for an injunction not to conduct the election of the first defendant Cathedral for the year 2005-2006 excluding him as a voter. Defendants filed a written statement resisting the suit claim. Suit was dismissed by the trial court on a preliminary ground that it has become infructuous since the elections to 2005-2006 for the first defendant were already conducted and over. In the appeal preferred by the first respondent/plaintiff, the learned Additional District Judge, Pathanamthitta reversed the decision of the court below dismissing the suit holding that part of the relief claimed by the first respondent that he was not a defaulter still remain W.P.(C).No.19385 OF 2009 Page numbers to be adjudicated upon by the court and so much so the suit cannot be considered as infructuous. An amendment application moved by the plaintiff earlier was also directed to be considered by the appellate court while remanding the case for fresh disposal after setting aside the judgment of the trial court. After such remand, the first respondent/plaintiff did not pursue the earlier amendment application, but moved a fresh application. Ext.P6 is the copy of the amendment application moved afresh by the plaintiff which was objected to by the defendant filing Ext.P7 objections. The learned Sub Judge after hearing both sides allowed Ext.P6 amendment application vide Ext.P8 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Nonpressing of the previous application moved for amendment after remand of the case is highlighted by the W.P.(C).No.19385 OF 2009 Page numbers learned counsel for the petitioners/defendants to contend that the court below was not justified in allowing the fresh amendment application moved. Scope of remand by virtue of the judgment rendered by the appellate court is also very limited and area of controversy which required to be adjudicated was confined to the question whether the plaintiff was a defaulter to the first defendant and nothing else, is the argument canvassed by the learned counsel for the petitioners to assail Ext.P8 order. By way of amendment a new relief of mandatory injunction as against the defendant had been sought for and the learned Sub Judge without adverting to the scope of the remand order allowed it causing prejudice to the defendants is the submission of the counsel. On the other hand, the learned counsel for the plaintiff submitted that the injunction order that is canvassed for is only consequential to the declaration sought for. What has been sought by way of amendment is only publication of a notice by the first defendant in case a decree is passed in his favour that he is not a defaulter. W.P.(C).No.19385 OF 2009 Page numbers Terming him as a defaulter, he was denied his right to participate and contest in the election held in the annual meeting and so much so over and above declaration a publication that he was not a defaulter on that date is claimed by the first defendant, according to the counsel. Such publication at the instance of the first defendant is also necessary for which alone a mandatory injunction by way of amendment is canvassed, submit the counsel. The relief so canvassed does not in any way change the character of the suit but it is only a consequential relief is the further submission of the counsel. Perusing Ext.P8 order passed by the learned Sub Judge with reference to the submissions made by the counsel on both sides and more particularly Ext.P6 amendment application and Ext.P7 objections, I find most of the amendments sought for relate to the additional relief claimed by the plaintiff for publication of notice by the first defendant in the event of the court finding that he is not a defaulter to that Cathedral. I find that such amendment relates only to seeking of consequential relief to the main W.P.(C).No.19385 OF 2009 Page numbers relief sought for and so much so there is no impropriety in allowing that amendment. However, I find that in Ext.P6 amendment application, the plaintiff has made a further request for inclusion of a particular paragraph as 5(A) in the plaint to make out that the suit has been filed in a representative capacity as against the first defendant. That of course at this belated stage cannot be permitted since it is a matter touching the very institution of the suit. After remand, seeking permission to sue the defendants, that too after they have delivered their defence filing a written statement, needless to point out, would cause them prejudice. The challenges which the defendants are entitled to canvass in a representative capacity may be different from those available when they are sued in their individual capacity. Further more in the given facts of the case whether suing the defendants in such representative nature was required is another matter which the trial court has to examine. Whatever that be, the amendment proposed as stated in Ext.P6 with respect to the inclusion of 5(A) in the W.P.(C).No.19385 OF 2009 Page numbers plaint cannot be granted. Ext.P8 order will stand modified to the effect that the court below will not permit the amendment for inclusion of 5(A) as canvassed by the plaintiff in Ext.P6 application. The rest of the amendment which has been approved by the learned Sub Judge will stand. Court below is directed to dispose the suit as expeditiously as possible at any rate within six months from the date of receipt /production of a copy of this judgment. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv