IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 26584 of 2008(M) -------------------------- OS.4/2008 of II ADDL.DISTRICT COURT,ERNAKULAM .................... PETITIONER(S): --------------- T.G.N.KUMAR, 33/3004, THEKKUMURI HOUSE, VENNALA.P.O.,ERNAKULAM, KOCHI-682 028. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.V.VARUN RESPONDENT(S): --------------- 1. K.S.VASUDEVAN NAMBOODIRI, S/O.SANKARAN NAMBOODIRI, KANNANATTUMANA, VENNALA KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK. 2. THE COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, ROUND NORTH, THRISSUR. ADV. SRI.N.NEELAKANDHAN NAMBOODIRI FOR R1 SRI.K.GOPALAKRISHNA KURUP,SC,COCHIN D.B FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FNALLY HEARD ON ON 21/10/2008, ALONG WITH WP(C) No.30467/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE REPRESENTATION DATED 18.1.2006 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXT.P2 TRUE COPY OF THE JUDGMENT PASSED IN WP(C) NO.7570/2006 DATED 20.3.2006 PASSED BY THIS COURT EXT.P3 TRUE COPY OF THE COMMUNICATION DATED 12.6.2006 EXT.P3(a) TRUE COPY OF ENGLISH TRANSLATION OF EXT.P3 COMMUNICATION DATED 12.6.2006 EXT.P4 TRUE COPY OF THE REPRESENTATION DATED 6.7.2006 SENT BY THE PETITIOENR TO THE SECRETARY OF THE BOARD EXT.P5 TRUE COPY OF REPLY TO EXT.P4 SENT BY THE SECOND RESPONDENT EXT.P6 TRUE COPY OF GAZETTE DATED 25.7.2006 EXT.P7 TRUE COPY OF THE COMMUNICATION ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER EXT.P8 TRUE COPY OF THE ORDER DATED 7.7.2007 IN IA NO.1387/2007 IN CMA NO.17/2007 WHICH WAS DISMISSED BY THE DISTRICT COURT, ERNAKULAM EXT.P9 TRUE COPY OF THE PLAINT PENDING BEFORE THE HON'BLE DISTRICT COURT IN OS NO.4/2008 DATED 31.10.2006 EXT.P10 TRUE COPY OF ORDER IN IA NO.1090/2008 IN OS NO.4/2008 PASSED BY THE DISTRICT COURT, ERNAKULAM DATED 18.6.2008. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.26584 of 2008 M & W.P.(C) No.30467 of 2008 B -------------------------------------- Dated this the 21st day of October, 2008. JUDGMENT Heard both sides. Parties are referred hereunder as in W.P.(C) No.26584 of 2008. 2. The petitioner, it is claimed is a devotee of the temple referred in these petitions which according to the petitioner is an ancient Hindu Religious Endowment. Alleging that there is no proper management of the temple, no proper accounting, etc. petitioner approached the second respondent, Cochin Devaswom Board (for short, ‘the Board’) requesting it to take over the management of the temple. Pursuant to his initiative, the Board initiated action. First respondent/plaintiff filed O.S.No.4 of 2008 in the Additional District Court, Ernakulam for a declaration that the Board has no jurisdiction or authority to control the temple in question and seeking injunction against the Board initiating proceedings against it for taking over of the management. While that suit was pending petitioner (in W.P.(C) No.26584 of 2008) filed application (I.A.No.1090 of 2008) to implead himself in the suit as additional second defendant. That application was allowed as per Ext.P10, order dated 18.6.2008. In W.P.(C) No.30467 of 2008, first respondent/plaintiff challenges the legality and correctness of that order, while in W.P.(C) No.26584 of 2008 petitioner WP(c) Nos.26584 & 30467/2008 2 seeks a direction to the Additional District Court for early disposal of O.S.No.4 of 2008. 3. So far as the legality and correctness of Ext.P10 (in W.P.(C) No.26584 of 2008) order dated 18.6.2008 is concerned, learned counsel for first respondent/plaintiff submitted that the plaintiff being the master of the suit, it is the discretion of the plaintiff to implead necessary parties in the suit. It is also contended by learned counsel for first respondent/plaintiff that petitioner in W.P.(C) No.26584 of 2008 is not a necessary or proper party in the sense that his presence is not necessary for adjudication of the dispute between the plaintiff and Board. Learned counsel placed reliance on the decision in Malabar Industrial Co. Ltd. V. John Anthraper (1986 KLT 409). Per contra, counsel for petitioner in W.P.(C) No.26584 of 2008 contends that presence of petitioner in the suit is necessary for proper adjudication of the dispute. Learned counsel also points out that it was as per petitioner's initiative that the Board initiated action which culminated in the plaintiff filing O.S.No.4 of 2008. 4. Order I Rule 10(2) of the Code of Civil Procedure (for short, 'the Code') provides for impleadment of additional parties. It is stated that “the court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate WP(c) Nos.26584 & 30467/2008 3 upon and settle all the questions involved in the suit, be added.” It is clear from Sub-rule (2) that even without a motion from the plaintiff who is the master of the suit, it is within the power of the court to implead any person provided, the court is satisfied that such a person ought to have been joined as a party or the presence of such a party is necessary for effectually and completely adjudicating upon and settling all the questions involved in the suit. Therefore the authority of the court below to implead an additional party even without a request from the plaintiff cannot be challenged. 5. What remained for consideration is whether petitioner in W.P.(C) No.26584 of 2008 ought to have been made a party or, at any rate his presence was necessary to effectually and completely adjudicate upon and settle all the questions involved in the suit. It is not disputed and records also revealed that it was at the initiative of petitioner in W.P.(C) No.26584 of 2008 that the whole proceedings started which ultimately ended in plaintiff filing O.S.No.4 of 2008 and the Board informing the petitioner by Ext.P7 letter that since the suit is pending, no further action can be taken. It is also not disputed that petitioner had filed W.P.(C) No.7570 of 2006 in this Court and the Division Bench of this Court as per Ext.P2, judgment dated 20.3.2006 directed the Board to enquire into the complaint preferred by the petitioner to it and pass appropriate orders within three months. It is pursuant to that order that the Board later issued Ext.P7 letter stating that on account of pendency of O.S.No.4 of 2008, no further action could be taken. In other words, plaintiff by filing the suit wanted to stall the endeavour of the petitioner to ensure that the Board took over the WP(c) Nos.26584 & 30467/2008 4 administration of the temple. Petitioner who claimed to be a devotee of the temple alleged that it is a Hindu Religious Endowment and further, that the temple is being mis-managed by the plaintiff, was very much behind of the most which culminated in Ext.P7 letter. What the plaintiff is challenging in the suit is the authority of the Board to take action against the temple on the grounds alleged by the petitioner in W.P.(C) No.26584 of 2008. Therefore, it cannot be said that petitioner has no interest whatsoever in the subject matter of the suit. 6. Court has power to order impleadment, if the person sought to be impleaded has a direct interest which could be legal or equitable on the subject matter. In the facts of this case I am inclined to think that petitioner in W.P.(C) No.26584 of 2008 has atleast an equitable interest. No jurisdictional error or illegality has been committed by learned Additional District Judge in ordering impleadment requiring interference under Article 227 of the Constitution. 7. It is then contended by learned counsel for first respondent/plaintiff that at any rate, principle of res judicata will apply since in C.M.Appeal No.17 of 2007, petitioner in W.P.(C) No.26584 of 2008 had unsuccessfully attempted to get himself impleaded and therefore, that order operates as res judicata. C.M.Appeal arose from an interlocutory order. C.M.Appeal is not a continuation of the suit and therefore, no impleadment in the suit could have been ordered in the C.M.Appeal and therefore, that order cannot operate as res judicata on I.A.No.1090 of 2008. The challenge made to Ext.P10 order dated 18.10.2008 (in W.P.(C) No.26584 of 2008) has therefore, to WP(c) Nos.26584 & 30467/2008 5 fail. 8. So far as the relief prayed for in W.P.(C) No.26584 of 2008 is concerned, I do not think it proper or necessary to issue a direction for time bound or early disposal of the suit without knowing the volume of work in that court. It is open to the petitioner to request the learned Additional District Judge to expedite the trial and disposal of the suit. With the above observation, both the Writ Petitions are dismissed. THOMAS P.JOSEPH, JUDGE. cks