IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 WP(C).No. 33152 of 2008(V) -------------------------- OS.966/2007 OF II ADDL.SUB COURT,ERNAKULAM. .................... PETITIONER: ------------------- V.M.MATHEW, S/O.MATHAI VELLANICKAL, AGED 67 YEARS, LISIE HOSPITAL QUARTER NO.LQ W3, BEHIND KALABHAVAN ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.K.V.JAYACHANDRAN, ADV. SRI.RAJU V.MATHEW RESPONDENTS: ----------------------- 1. LISIE MEDICAL INSTITUTIONS, A REGISTERED CHARITABLE TRUST, ERNAKULAM, COCHIN-18, REP. BY ITS DIRECTOR 2. ARCH DIOCESE OF ERNAKULAM AND ANGAMALY, REP. BY THE PROCURATOR, ARCH BISHOPS HOUSE, COCHIN-31. R1 & R2 BY ADV. SRI.GEORGE THOMAS (MEVADA). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.33152/2008-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 1716/2005 BEFORE THE MUNSIFF'S COURT AT ERNAKULAM DTD. 09/12/2005. EXT.P.2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT AT ERNAKULAM DTD. 24/05/2006. EXT.P.3: COPY OF THE I.A. NO. 4489/2008 IMPLEADING PETITION FILED BY THE RESPONDENT BEFORE THE SUB COURT AT ERNAKULAM DTD. 09/07/2008. EXT.P.4: COPY OF THE COUNTER AFFIDAVIT TO THE I.A. NO. 4489/2008 FILED BY THE PETITIONER BEFORE THE SUB COURT AT ERNAKULAM DTD. 26/07/2008. EXT.P.5: COPY OF THE PETITION BEARING I.A. NO. 5405/2008 FILED BY THE RESPONDENT BEFORE THE SUB COURT AT ERNAKULAM DTD. 09/08/2008. EXT.P.6: COPY OF THE COUNTER AFFIDAVIT TO THE I.A. NO. 5405/2008 FILED BY THE PETITIONER BEFORE THE SUB COURT AT ERNAKULAM DTD. 18/08/2008. EXT.P.7: COPY OF THE SAID COMMON ORDER IN I.A. 4489/2008 & I.A. 5405/2008 IN O.S. 966/2007 OF THE 2ND ADDL. SUB COURT, ERNAKULAM DTD. 02/09/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. K.P.BALACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 33152 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of January, 2009 JUDGMENT Service is complete. Respondents have entered appearance. 2. Petitioner is the defendant in OS No.966/07 on the file of the Sub Court, Ernakulam. The suit is one filed by the 1st respondent against the petitioner for a declaration that occupation of plaint schedule quarters by the petitioner defendant from 01.09.05 is unlawful and to allow them to recover vacant possession thereof from the petitioner defendant with mesne profits for use and occupation thereof. 3. According to the 1st respondent/plaintiff, the plaintiff is a charitable trust registered under Indian Trusts Act and is running a multi specialty hospital at Ernakulam under the name and style “Lissie Medical Institutions”. For the medical professionals working in the hospital, the plaintiff had provided quarters close to the hospital, obtained from the Diocese of Ernakulam with absolute freedom for using it for the purpose of the plaintiff; that the plaintiff is thus in possession of the quarters since last several decades. The employees of the hospital were allotted quarters free of rent and thus WPC : 33152/08 -:2:- the defendant, who was in the service of the plaintiff is a Radiographer, was allotted the scheduled quarters bearing No.LQW 3, being an employee of the plaintiff. He has retired on superannuation at the age of 55 years. But, as a special case, he was being granted extension of service from time to time and the last of such extension was up to 31.05.05 and that has expired and he has to vacate his quarters by 31.05.05. But, he did not vacate the quarters as instructed by the plaintiff; though several other staff of the hospital are waiting in the queue for allotment of quarter and hence the quarter has to be recovered from the possession of the defendant. 4. The petitioner contended, inter alia, that it is false that the plaintiff had obtained quarters from the Diocese of Ernakulam or that he was provided the quarters by the plaintiff. His right to possess and enjoy the property and disputed building therein has no connection with the employment of the defendant. The plaintiff has no right to vacate the defendant from the schedule building with mesne profits for use and occupation. The scheduled building belongs to Diocese of Ernakulam and the Cardinal/Archbishop is the WPC : 33152/08 -:3:- owner and custodian of its properties. The petitioner/defendant is in possession of the building and 5 cents of property from 1964 onwards and the plaintiff is not entitled to seek recovery of the building with mesne profits for use and occupation. It was in the wake of the contention that Archbishop, Diocese of Ernakulam is the ultimate owner of the properties and building which takes in also the quarters occupied by the defendant., that the 1st respondent plaintiff prayed for impleadment of Diocese of Ernakulam/Angamaly as additional 2nd plaintiff in the suit by filing Ext.P3 application (IA No.4489/08) and the Archbishop Diocese of Ernakulam/Angamaly represented by the Procurator filed IA No. 5405/08 praying that the affidavit filed therewith be considered while considering IA No.4489/08 for impleading them as additional plaintiff in the suit. The court below considered both IA No.4489/08 and IA No. 5405/08 and by Ext.P7 common order accepted the affidavit of the additional plaintiff allowing IA No.5405/08 and allowed IA No.4489/08 to implead additional second plaintiff. The said Ext.P7 order is being assailed by the defendant in this writ petition. 5. It is vehemently contended by the counsel for the petitioner WPC : 33152/08 -:4:- that for the mere reason that Archbishop Diocese of Ernakulam/ Angamaly is the owner of the properties, it cannot be said that they are necessary party to the suit in the nature of the allegations in the plaint and that the plaintiff will be entitled to succeed in the suit only in the event of their succeeding to establish the case set up by them that the petitioner defendant was in occupation of the scheduled quarters on permission from the first plaintiff as he was an employee of the first plaintiff in the hospital run by them. It is common case that the Diocese of Ernakulam/Angamaly is the ultimate owner of the properties and buildings of which the scheduled quarters is an item. Plaintiff is the master of the suit and it is for the plaintiff to decide as to who all are to be parties in the suit. In the light of the admitted facts it cannot be said that, Diocese of Ernakulam/Angamaly is an unnecessary party to the suit. Even if it can be said that they are not necessary parties it cannot be said however that they are not at least proper parties to the suit. It is worthy to note in this context that the petitioner defendant has no definite case as to who permitted him to occupy the quarters though an argument was advanced by the counsel that it was not the plaintiff who permitted the petitioner to WPC : 33152/08 -:5:- occupy the quarters. 6. The counsel for the petitioner has cited before me the decision of the apex court in Ramesh H. Kundanmal v. Muncipal Corporation of Greater Bombay [(1992) 2 SCC 524] to canvas for the contention that under Order I Rule 10 of CPC, addition of necessary party by court is not permissible when the additional party has no direct or legal interest in the litigation. That was a case where the dealer in possession of a service station under an agreement with lessee thereof was challenging the validity of the notice issued by the Municipal Corporation for demolition of certain structures raised by it on the premises as being unauthorised and the lessee of the premises was sought to be got impleaded as additional defendant on the ground that he is a necessary party. It was held in that case by the apex court that the lessee is not a necessary party or a proper party and addition of lessee would only enlarge the issue of the suit and that fresh litigation with such a party could be avoided by impleadment is not a good or enough reason to implead such party. However, the apex court has got judicial discretion to add WPC : 33152/08 -:6:- necessary party under Order I Rule 10(2) of CPC. Having regard to the facts and circumstances of the case and that in exercise of this discretion Court can direct a plaintiff, though dominus litis, to implead a person as a necessary party defendant. In the instant case, the plaintiff, the master of the suit himself, has moved the application for impleadment of additional party to whom the properties involved in the suit do belong in absolute title even on the case set up by both sides. 6. In fact, the additional parties sought to be impleaded also had filed an affidavit and prayed for acceptance of that affidavit while considering the impleadment application, moving IA No.5405/08 in that behalf. There is absolutely no merit in the defendant assailing Ext.P7 order so passed by the court below allowing the 2nd respondent in the writ petition to be impleaded as additional second plaintiff. This Writ Petition is hence is dismissed. K.P.BALACHANDRAN, JUDGE ttb