IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 WP(C).No. 27268 of 2009(O) -------------------------- AGAINST THE ORDER IN IA 1972/2008 IN OS.73/2007 of MUNSIFF COURT, CHANGANACHERRY .................... PETITIONER(S): ------------------------- ANNIE.B.POTHEN, RESIDING AT KARINGADA HOUSE, PERUNNA EAST KARA, CHANGANACHERRY REPRESENTED BY HER POWER OF ATTORNEY HOLDER BABU POTHEN, RESIDING AT DO. DO. DO. BY ADV. MR. ABRAHAM GEORGE JACOB RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM. 2. TAHSILDAR, TALUK OFFICE, CHANGANACHERRY, KOTTAYAM. 3. RESURVEY SUPERINTENDENT, CHANGANACHERRY, KOTTAYAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.27268 OF 2009 -------------------------- Dated this the 1st day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to Ext.P5 order and quash Ext.P5. ii) Consider Ext.P3 application and allow the same. iii) Grant such other reliefs as may be deemed fit and necessary in the circumstances. iv) Award costs. 2. Petitioner is the plaintiff in O.S No.73 of 2007 on the file of Munsiff Court, Changanacherry. Suit has been filed under Section 14 of the Survey and Boundaries Act 1961 for correction of some mistakes in survey records with W.P.(C).No.27268 OF 2009 Page numbers respect to the plaint property. The defendants, the State and public officials in their written statement disputing the case of plaintiff contended that part of the property claimed by the plaintiff is a puramboke land vested with Railway. After issuing a notice to the Railway, petitioner/plaintiff moved an application for impleadment of the Southern Railway as an additional defendant in the suit. That application moved under Order 1 of Rule 10(2) of the Code of Civil Procedure, after hearing both sides, was dismissed by the court below vide Ext.P5 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 and also the learned Government pleader for the respondents. At the time of hearing, the W.P.(C).No.27268 OF 2009 Page numbers learned counsel for the petitioner submitted that as the impleadment of the Southern Railway as an additional defendant cannot be canvassed in view of the bar under Section 80 of the Code of Civil Procedure which mandates issuing of prior notice before institution of the suit, the petitioner/plaintiff will move an application before the court for withdrawing the suit with liberty to file fresh suit. The impugned order challenged in the writ petition if not reversed by this court may cause prejudice in vindicating the legal rights of the plaintiff over the property, is the submission of the counsel. I find no reason for entertaining such an apprehension since the suit has been filed only under Section 14 of the Survey and Boundaries Act and the relief confined therein only relates to the correctness of survey records. It is open to the petitioner to file a comprehensive suit impleading the railway as well for vindicating its legal rights over the property. W.P.(C).No.27268 OF 2009 Page numbers If any application is moved for withdrawal of the present suit, the court below will take note that the formal defect in non impleadment will not prejudice the plaintiff in filing a fresh suit on the same cause of action and also for seeking additional reliefs, if any. It is for the court below to pass appropriate orders, if any such application is moved, taking note of the observations made above and in accordance with law. Subject to the above observations the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv