IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WP(C).No. 2558 of 2009(D) ------------------------------------- [IA.NO.1608/2006 IN OS.NO.198/2002 OF SUB COURT,KATTAPPANA] .................... PETITIONER: ------------------- REV. RAVI RAJAN SELVAN, AGED ABOUT 52 YEARS, C/O. SUKUMARAN, CHIRATTAMPARAMBIL HOUSE, WALLARDIE JUNCTION, VANDIEPRIYAR P.O., PERIYAR VILLAGE, PEERMADE TALUK. BY ADVS. SMT.A.K.PREETHA, SRI.M.R.RAJESH. RESPONDENTS: ------------------------ 1. REV. RAJAN MOOSSES, AGED 34 YEARS, S/O. D.N. MOSES, VICAR, C.S.I. CHURCH, KUMILY VILLAGE, PEERMADE TALUK. 2. JACOB RAJ, AGED ABOUT 49 YEARS, RAJ BHAVAN, CHENKARA, KUMILY VILLAGE, PEERMADE TALUK. 3. M. JAYARAJ, AGED ABOUT 49 YEARS, BETHEL HOUSE, CHENKARA, KUMILY VILLAGE, PEERMADE TALUK. 4. K.SELVAN, AGED ABOUT 42 YEARS,BETHL ILLAM, CHENKARA KUMILY VILLAGE, UDUMBANCHOLA TALUK. 5. ASIRVADAM, AGED ABOUT 55 YEARS, S/O. DENIEL, CHENKARA ESTATE, DIVISION NO.3, CHENKARA KUMILY VILLAGE, PPERMADE TALUK. W.P.(C). NO.2558/2009-D: 6. JOHNSON D.S., AGED ABOUT 35 YEARS, S/O. SAMUEL RAJ, RESIDING AT PUTHENPARAMBIL HOUSE, CHENKARA, KUMILY VILLAGE, PEERMADE TALUK. 7. THE BISHOP, CHURCH OF SOUTH INDIA, MELUKAVUMATTOM, MELUKAVU VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. R1 BY ADVS. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE, R2 TO R6 BY ADV. SRI.JOBI JOSE KONDODY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.2558/2009-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN THE O.S. 198/2002 OF THE SUB COURT, KATTAPPANA. EXT.P.2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S. 198/2002 OF THE SUB COURT, KATTAPPANA. EXT.P.3: COPY OF THE WRITTEN STATEMENT FILED BY THE R.1. IN O.S. 198/2002 OF THE SUB COURT, KATTAPPANA. EXT.P.4: COPY OF THE APPLICATION I.A. 1558/2006 FILED BY THE R.1. DTD. 04/11/2006. EXT.P.5: COPY OF THE I.A. 1608/2006 FILED BY THE R.7. EXT.P.6: COPY OF THE OBJECTION FILED BY THE PETITIONER DTD. 25/11/2006. EXT.P.7: COPY OF THE I.A. 122-A/2007 DTD. 16/01/2007 FILED BY THE R.1. EXT.P.8: COPY OF THE COMMON ORDER DTD. 14/08/2007 IN I.A. 1608/2006 AND I.A. 122- A/2007 IN O.S. 198/2002 PASSED BY THE SUB COURT, KATTAPPANA. EXT.P.9: COPY OF THE JUDGMENT IN W.P.(C).NO.35538/2007 PASSED BY THIS HONOURABLE COURT DTD. 21/08/2008. EXT.P.10: COPY OF THE I.A. 1011/2008 FILED BY THE R.7. EXT.P.11: COPY OF THE OBJECTION FILED BY THE PETITIONER DTD. 11/11/2008. EXT.P.12: COPY OF THE ORDER DTD. 15/12/2008 IN I.A. 1608/2006 IN O.S. 198/2002 PASSED BY THE SUB COURT, KATTAPPANA. EXT.P.13: COPY OF THE ORDER DTD. 15/12/2008 IN I.A. 122-A/2007 IN O.S. 198/2002 PASSED BY SUB COURT, KATTAPPANA. EXT.P.14: COPY OF THE COMMON ORDER DTD. 15/12/2008 IN I.A. 1011/2008 IN O.S. 198/2002 PASSED BY THE SUB COURT, KATTAPPANA. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 2558 OF 2009 ------------------------------- DATED THIS THE 4TH DAY OF OCTOBER, 2010 JUDGMENT The lst defendant in O.S.No.198/2002 on the file of the Sub Court, Kattappana is the petitioner. The lst respondent herein is the plaintiff and respondents 2 to 7 are the defendants 2 to 7 in the said suit. The parties herein after are referred to as the plaintiff and defendants as arrayed in the suit. 2. The suit was filed for permanent prohibitory injunction restraining the defendants and their men or agents from preventing the plaintiff from offering religious prayers and services in the plaint schedule property and causing any act of waste therein and from doing anything which will affect the religious services of the plaintiff in the plaint schedule property. Ext.P1 is the copy of the plaint. The defendants denied the plaint averments and prayed for dismissal of the suit. They have also raised counter claim seeking injunction to restrain the plaintiff and his men from -2- WP(C).No.2558/09 trespassing into the written statement schedule building or from obstructing the lst defendant from exercising his rights as a Pastor. Ext.P2 is the copy of the written statement. True copy of the reply statement to the counter claim is marked as Ext.P3. The petitioner submitted that after a period of more than five years since the filing of the suit and the written statement, the plaintiff filed I.A.No.1558/06 seeking to implead the 7th respondent herein, who is the Bishop, as the additional 7th defendant in the suit. Ext.P4 is the application for impleading, which was filed on 4/11/2006. The court allowed the said application by order dated 9/11/2006. Thus, the Bishop was impleaded as the 7th defendant in the suit. Immediately thereafter, the additional 7th defendant filed I.A.No.1608/2006 seeking to implead him as the 2nd plaintiff in the suit. Ext.P5 is the application for impleading submitted under Order I Rule 10 of the C.P.C., which was filed on 14/11/2006. The affidavit filed in support of Ext.P5 application, which is page 1 of Ext.P5, is silent about the filing of Ext.P4 application and the order passed thereon. The petitioner filed Ext.P6 objection opposing the -3- WP(C).No.2558/09 prayer in Ext.P5. While Ext.P5 application is pending consideration by the court, the plaintiff filed I.A.No.122A/2007 marked as Ext.P7 praying for deleting the additional 7th defendant from the array of defendants. The very same plaintiff, who had filed Ext.P4 impleading petition after getting the Bishop impleaded as the additional 7th defendant, later filed Ext.P7 petition for deleting the additional 7th defendant from the party array. The plaintiff himself stated in the affidavit filed in support of Ext.P7 that Bishop happens to be improperly impleaded as additional 7th defendant instead of impleading him as additional 2nd plaintiff. The said statement in paragraph 4 of the affidavit filed in support of Ext.P7 is self-conflicting. He himself filed Ext.P4 application for impleading stating that Bishop is a necessary party to the suit and therefore Bishop may be impleaded as additional 7th defendant. The court allowed the application impleding the Bishop as additional 7th defendant in the suit. The court below considered I.A.Nos.1608/06 and IA.No.122A/2007 together and allowed those applications by Ext.P8 order. Ext.P8 order was challenged by the -4- WP(C).No.2558/09 petitioner before this Court. This Court by Ext.P9 judgment set aside Ext.P8 order and directed the Sub Court to dispose of IA.Nos.1608/06 and 122-A/2007 afresh, after hearing the parties. After Ext.P9 judgment, before re-consideration of I.A.Nos.1608/06 and 122-A/07, the plaintiff filed I.A.No.1011/08 for impleading the Bishop as additional 2nd plaintiff in the suit. The learned counsel for the petitioner pointed out that the pr;ayer is very same as in IA.No.1608/06 for impleading the Bishop as additional 2nd plaintiff. I.A.No.1011/08 was filed at a time when I.A.No.122A/07 filed for deleting the additional 7th defendant is pending consideration. It is clear that the plaintiff was filing applications one by one either for deleting the name of the 7th defendant or for impleading him as additional 2nd plaintiff. The conduct of the plaintiff in filing these applications, which are mutually conflicting, cannot be acceptable. 2. The court below subsequently passed separate orders in I.A.Nos.1608/06, 122-A/07 and 1011/08 by order dated 15th December, 2008. I.A.No.1608/06 filed by the Bishop was allowed stating that the learned Judge is satisfied about all the reasons stated -5- WP(C).No.2558/09 in the affidavit filed in support of the petition. Therefore, the petitioner therein is transposed as the 2nd additional plaintiff in the suit. I.A.No122-A/07 filed by the plaintiff to strike out defendant No.7 from the array of defendants was allowed. I.A.No.1011/08 filed by the plaintiff to implead the 7th defendant as the 2nd plaintiff is closed based on the decision in IA.No.1608/06. These three orders are produced and marked as Exts.P12, P13 and P14. 3. I have gone through the averments in the suit. The suit was filed for injunction smplicitor. The suit can be maintained and prosecuted by the plaintiff without the aid of any person as additional plaintiff. Bishop was sought to be impleaded in the suit as an additional 7th defendant. The plaintiff stated in Ext.P4 that Bishop is the authority of the Church and its properties within his Diocese and therefore he has to be made as a defendant in the above suit. The said application is justifiable in the circumstances. That application was allowed by the court impleading the Bishop as additional 7th defendant. The court also allowed the prayer finding that the presence of Bishop being the custodian of the Church -6- WP(C).No.2558/09 properties is necessary for an effective adjudication of the dispute between the parties. It is very clear that Ext.P4 application was filed for and on behalf of the Bishop. While the said application is pending consideration, the Bishop filed Ext.P5 petition to implead him as the 2nd plaintiff in the suit. The reason stated is that the impleadment is necessary for the lawful disposal of the matter, in the interest of justice. While the impleading application filed by the plaintiff is pending, Bishop filed Ext.P5 application to implead him as an additional 2nd plaintiff. I have already stated about the nature and scope of the suit. The plaintiff can maintain and prosecute the suit without the junction of the Bishop being impleaded as an additional 2nd plaintiff. In fact Ext.P5 application was filed without any bona fides. That application is opposed by the petitioner by filing Ext.P6 objection. Subsequently, Ext.P4 application was allowed on 9/11/2006. Thus, the Bishop was impleded as additional 7th defendant in the suit. While Ext.P5 application filed by the Bishop is pending, the plaintiff again filed Ext.P7 application to delete Bishop from the party array. The said -7- WP(C).No.2558/09 application was filed by the plaintiff to enable the Bishop to prosecute Ext.P5 application. So, it is clear that Ext.P7 petition filed to delete additional 7th defendant is also without any bona fides. The very same plaintiff again filed another application i.e. IA.No.1011/08 marked as Ext.P10 praying to implead the Bishop as additional 2nd plaintiff in the suit. That was filed at a time when the application for deleting the 7th defendant from the array of parties is pending consideration before the court. 4. From the aforesaid facts, it is clear that the plaintiff in the suit is behind these applications either filed in his name or in the name of the Bishop. Now the court re-considered Ext.P5 and P7 applications along with Ext.P10 application and passed Exts.P12, P13 and P14 orders. Ext.P12 is the order allowing I.A.No.1608/06 and the 7th defendant Bishop is transposed as the additional 2nd plaintiff in the suit. In fact I.A.No.1608/06 is without merit in view of the fact that the Bishop was already impleaded as the 7th defendant in the suit. I.A.No.1608/06 was filed by the Bishop for impleading him as an additional 2nd plaintiff in the suit. Since he -8- WP(C).No.2558/09 was made as a party by order dated 9/11/2006, the only application that can be submitted is for transposition of the 7th defendant as the 2nd plaintiff in the suit. Transposition can be ordered only if the conditions enumerated under Order XXIII Rule I A of the CPC is satisfied. I have already stated that the impleadment of additional 7th defendant is properly made. Therefore, there is no reason for impleading him as additional 2nd plaintiff in the suit. Hence, the order passed in I.A.No.1608/06 is absolutely erroneous and without merit. Ext.P13 is the consequential order passed striking out the additional 7th defendant from the party array. In view of the order passed in I.A.No.1608/06, IA.122A/07 filed for striking out the additional 7th defendant is not maintainable and therefore the same is dismissed. Ext.P14 order was passed in IA.No.1011/08 filed by the plaintiff for impleading the 7th defendant-Bishop as the 2nd plaintiff in the original suit. For the reasons stated in dismissing IA.No.122A/07 that application is not maintainable and therefore IA.No.1011/08 also stands dismissed. The court below wrongly and without jurisdiction invoked Order I Rule 10 of the -9- WP(C).No.2558/09 C.P.C. for transposing one of the defendant as additional plaintiff. Order I Rule 10 CPC is not meant for transposing the parties. In the result, Exts.P12, P13 and P14 orders are set aside. It is made clear that the order passed by the court below in I.A.No.1558/06 dated 9/11/20006 impleading the Bishop as the additional 7th defendant in the suit stands. The Bishop can contest the suit as a party defendant. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv. -10- WP(C).No.2558/09