IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 WP(C).No. 26144 of 2009(O) -------------------------- OS.1040/2007 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONERS: --------------- 1. ABRAHAM SASON, S/O.JOSEPHAI, AGED 42 YEARS, RESIDING AT 40/3187, BROAD WAY, ERNAKULAM, COCHIN-31. 2. LEAH YOHANNAN, AGED 53, W/O.MOSHE YOHANNAN, SHEDROT HAETZEL, 44/8, KIRYAT SHIMONA, ISREAL, REPRESENTED BY POWER OF ATTORNEY HOLDER MRS.MIRIAM ELIAS, W/O.LATE DR.BASIL ELIAS, AGED 57, HOUSE NO.37/106, KOTTECANAL ROAD, KOCHI-17. 3. REBECA YOHANNAN, AGED 45, W/O.BAZALEL YOHANNAN, AMI HAI, 9/15, RAMLE, ISREAL, REPRESENTED BY POWER OF ATTORNEY HOLDER MRS.MIRIAM ELIAS, W/O.LATE DR.BASIL ELIAS, AGED 57, HOUSE NO.36/106, KOTTECANAL ROAD, KOCHI-17. 4. SHOSHANA JOSEPHAI, AGED 37, D/O.JOSEPHAI, KAIZA NELSON, BAT YAH, ISREAL, REPRESENTED BY MRS.MIRIAM ELIAS, W/O.LATE DR.BASIL ELIAS, AGED 57, HOUSE NO.36/106, KOTTECANAL ROAD, KOCHI-17. BY ADV. MR.JOHN NUMPELI (JUNIOR) RESPONDENTS: --------------- 1. ELIAS JOSEPHAI, S/O.JOSEPHAI, K.K.PADMANABHAN ROAD, NEAR POWER HOUSE, KOCHI-17. (CNTD...2) WP(C).No. 26144 of 2009(O) ::2:: 2. SHEEMON JOSEPHAI @ SIMON JOSEPHAI, S/O.JOSEPHAI, NAVODAYA, C-10, SARANYA APARTMENTS, KALOOR, KOCHI-17. 3. PENINA COHEN, AGED 47, D/O.JOSEPHAI, REHOV SHAPIRA, HOUSE NO.159/5, ASHKELON, ISRAEL. 4. SOLOMON JOSEPHAI, S/O.JOSEPHAI, ZEDROT, ISRAEL, REPRESENTED BY HIS POWER OF ATTONEY HOLDER AND BROTHER MR.ELIAS JOSEPHAI, S/O.JOSEPHAI, K.K.PADMANABHAN ROAD, NEAR POWER HOUSE, KOCHI-17. ADV. MR.K.R.VINOD FOR R1 TO 4 MS.M.S.LETHA FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26144 of 2009(O) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: GENERAL POWER OF ATTORNEY DATED 1.6.2007 EXECUTED BY PETITIONERS IN FAVOUR OF MIRIAM ELIAS. EXT.P2: REGISTERED WILL NO.III/139/03 DATED 28.5.2003 OF ERNAKULAM SUB REGISTRY EXECUTED BY ABIGAYAL. EXT.P3: IMPLEADING PETITION I.A.NO.3849/2009 IN O.S.NO.1040/2007 PENDING BEFORE THE HONOURABLE PRINCIPAL SUB COURT, ERNAKULAM. EXT.P4: AMENDMENT PETITION I.A.NO.3890/2009 IN O.S.NO.1040/2007 PENDING BEFORE THE HONOURABLE PRINCIPAL SB COURT, ERNAKULAM. EXT.P5: PETITION I.A.NO3848/2009 IN O.S.NO.1040/2007 PENDING BEFORE THE HONOURABLE PRINCIPAL SUB COURT, ERNAKULAM. EXT.P6: COUNTER AFFIDAVIT IN PETITION I.A.NO.3849/2009 IN O.S.NO.1040/2007 PENDING BEFORE THE HONOURABLE SUB COURT, ERNAKULAM. EXT.P7: COUNTER AFFIDAVIT INPETITION I.A.NO.3849/2009 IN O.S.NO.1040/2007 PENDING BEFORE THE HONOURABLE PRINCIPAL SUB COURT, ERNAKULAM. EXT.P8: ORDER DATED 15.6.2009 IN PETITION I.A.NO.3849/2009 IN O.S.NO.1040/2007 PENDING BEFORE THE HONOURABLE PRINCIPAL SUB COURT, ERNAKULAM. EXT.P9: ORDER DATED 15.6.2009 IN I.A.NO.3890/2009 IN O.S.NO.1040/2007 PENDING BEFORE THE HONOURABLE PRINCIPAL SUB COURT, ERNAKULAM. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.26144 of 2009 - O --------------------------------- Dated this the 8th day of December, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To call for the records leading to exhibits P8 and P9 orders and set aside the same and may be further pleased to dismiss the petition for impleading and amendment, I.A.No.3849 of 2009 in O.S.No.440 of 1998 filed by the respondents. ii) To issue a declaration that every petition filed afresh by a power of attorney holder shall produce the power of attorney along with the petition or if already produced to make a statement to that effect in the affidavit.” 2. Petitioners are the plaintiffs in O.S.No.1040 of 2007 on the file of the Sub Court, Ernakulam. Suit is filed for possession under Section 6 of the Specific Relief Act and the respondents 1 to 3 are the defendants. Fourth respondent, during the pendency of the suit, got himself impleaded as additional fourth defendant. Third defendant against whom no relief was canvassed, it appears, has remained exparte. The day before the suit was listed for trial, two applications were moved by the defendants 1 W.P.(C).No.26144 of 2009 - O 2 and 2 for removal of the case from the list and for amending the written statement. Another application was moved by a stranger, the present fourth respondent, to implead him as an additional fourth defendant in the suit contending that he too has got some right over the property. Learned Sub Judge removed the case from the list and allowed the other two petitions ordering impleadment of the stranger as additional fourth defendant and also permitting the defendants 1 and 2 to amend their written statement. Ext.P8 is the copy of the order filed by the court ordering for impleadment of the additional fourth defendant in the suit. Ext.P9 is the copy of the order allowing the amendment sought for by the defendants to amend their written statement. Propriety and correctness of Exts.P8 and P9 orders are 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 counsel on both sides. 4. A copy of the plaint in the suit has been handed over to me for perusal. Though some allegations are raised in the plaint as to the plaintiffs having title over the suit property along W.P.(C).No.26144 of 2009 - O 3 with the third defendant, it is evident, the relief canvassed in the suit was only under Section 6 of the Specific Relief Act alleging that the plaintiffs were forcibly dispossessed from the plaint property, two shop rooms, by defendants 1 and 2. When that be so, the only question required to be considered by the court related to whether the plaintiffs had physical possession over the property from which they are alleged to have been dispossessed within the statutory period specified prior to their dispossession for entertaining a suit under Section 6 of the Specific Relief Act. Learned counsel for the respondents 1 and 2/defendants 1 and 2 in the suit, submits that the amendment of written statement was necessitated in view of the framing of an issue in the suit as to who is having title over the property. Needless to point out, such an issue is totally irrelevant in the adjudication of a suit filed under Section 6 of the Specific Relief Act. When no relief was canvassed against a stranger, present fourth defendant, in the nature of the suit his request for impeladment on the basis of title should not have received any consideration by the court. If he has title over the property, necessarily and inevitably he has W.P.(C).No.26144 of 2009 - O 4 to work out his remedies separately, if at all he has any right to relief against the present defendants. He cannot come and get himself impleaded, for the sole reason he is having some right over the suit property in a suit filed under Section 6 of the Specific Relief Act by the plaintiffs against some others who are alleged to have dispossessed them from the property. Amendment application moved by the defendants 1 and 2 for amending their written statement to bring in particulars about the title holders of the property in the given facts of the case appear to be unwarranted. As contended by the counsel, it might have been done only for the reason that an issue had been framed wrongly by the court in the suit. I find the question of impeladment of a stranger as additional fourth defendant and also the amendment sought for by the plaintiff even if it had been incorporated in the pleadings by the orders of the court require reconsideration especially where it is seen the suit is only for the relief of possession to undo the forcible dispossession. Exts.P8 and P9 orders are set aside and the court below is directed to consider the matter afresh taking note of the observations made W.P.(C).No.26144 of 2009 - O 5 above and in accordance with law. Learned Sub Judge is directed to dispose the suit after disposal of the impleading petition and amendment application, as expeditiously as possible, taking note that the limited question arising for consideration in a suit of this nature relate to the claim of the plaintiffs' prior physical possession over the suit property and that of forcible dispossession by the defendants, and nothing more require to be adjudicated. If at all an issue regarding title had been raised, needless to point out, as the question does not arise in such a suit, appropriate orders for removing that issue has to be passed before proceeding with the trial of the case. Writ petition disposed as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-