IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 OP(C).No. 1100 of 2010(O) ------------------------- OS.769/2009 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONERS/2ND DEFENDANT IN OS.769/09 & 3RD PARTY ---------------------------------------------------------------------- 1. RAHEL VARGHESE @ MERCY, W/O.LATE P.VARGHESE, THOTTANKARA HOUSE, P.O.SOUTH PARAVUR, ERNAKULAM DISTRICT. 2. DR.ANJU RANJITH, W/O.RANJITH, AGED 30 YEARS, PRESENTLY RESIDING AT 'SIVA PRIYA', LAYAM ROAD, THIPUNITHURA, ERNAKULAM DISTRICT. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT:PLAINTIFFS ON OS.769/09 & PLAINTIFFS & DEFENDANTS ---------------------------------------------------------------- 1. T.P.BABY, S/O.PATHROSE, THOTTANKARA HOUSE, SOUTH PARAVUR.P.O., ERNAKULAM DISTRICT. PIN-682308 2. BINU BABY, S/O.BABY, THOTTANKARA HOUSE, SOUTH PARAVUR.P.O., ERNAKULAM DISTRICT. PIN-682308 3. JINI ABRAHAM, W/O.B.C.ABRAHAM, RESIDING AT NO.11, NOYAL HERITAGE, KAKKANAD-KOCHI, ERNAKULAM DISTRICT.682030 4. GEORGE T.B., S/O.BABY, THOTTANKARA HOUSE, SOUTH PARAVUR.P.O., ERNAKULAM DISTRICT. PIN-682308 5. N.P.POULOSE, S/O.LATE PATHROSE, THOTTANKARA HOUSE, SOUTH PARAVUR.P.O., ERNAKULAM DISTRICT. PIN-695 001. 6. MARY POULOSE, W/O.LATE POULOSE, CHALAPURATH HOUSE, NEAR MULAYIL KURISH, PERUMBILLY (P.O), ERNAKULAM DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1100 of 2010 --------------------------------------- Dated this 10th day of December, 2010 JUDGMENT In respect of the same property or, a portion thereof presently there are three suits – O.S.Nos.769, 770 of 2009 and 1066 of 2008, all pending in the court of learned Sub Judge-I, Ernakulam. Dispute concerned properties which according to the petitioner belonged to late T.P.Varghese. While so, respondent No.1 filed O.S.No.630 of 2008 in the court of learned Munsiff which is for decree for prohibitory injunction (at a time when T.P.Varghese was alive) and that suit was later transferred to the court of learned Sub Judge and re-numbered as O.S.No.769 of 2009. Pursuant to an agreement for sale petitioner No.1, wife of late T.P.Varghese, assigned the property, it is contended, in favour of petitioner No.2 after the death of the said T.P.Varghese. After the death of T.P.Varghese petitioner No.1 was impleaded in O.S.No.769 of 2009 but in spite of petitioner No.1 pleading that the property has been assigned to petitioner No.2, the latter has not been impleaded in the suit. Learned Munsiff had appointed an Advocate Commissioner to inspect the property in O.S.No.769 of 2009. Grievance of petitioner is that being assignee from O.P(C).No.1100 of 2010 : 2 : petitioner No.1, he has not been impleaded in O.S.No.769 of 2009 and without impleading him, Advocate Commissioner with the assistance of a Surveyor has given notice to measure his property. Learned counsel contends that petitioner No.2 has objection to the appointment of Advocate Commissioner and that petitioner No.2 may have several matters to be ascertained through the Advocate Commissioner which opportunity will be lost if even before he is impleaded in O.S.No.769 of 2009 Advocate Commissioner inspected the property. 2. If petitioner No.2 is a necessary or proper party in O.S.No.769 of 2010 he also could have taken necessary steps to seek impleadment as the law provides rather than waiting to be impleaded by the plaintiffs in O.S.No.769 of 2009. But, I am inclined to give some time to the petitioner to take necessary steps in that line. Hence I am inclined to direct that visit of the Advocate Commissioner shall be postponed to a day after ten (10) days from this day so that in the meantime it will be open to petitioner No.2 to seek appropriate relief in O.S.No.769 of 2010 if otherwise he is entitled to that course. In case any application for impleadment is preferred by petitioner No.2 in O.S.No.769 of 2009, learned Sub Judge shall hear the parties and pass O.P(C).No.1100 of 2010 : 3 : appropriate orders on that application and if it is found necessary learned Sub Judge may further postpone visit of Advocate Commissioner notwithstanding the time limit specified in this order. Resultantly this petition is disposed of directing that inspection by the Advocate Commissioner in O.S.No.769 of 2009 will stand adjourned to a day after ten (10) days from this day. (THOMAS P JOSEPH, JUDGE) Sbna/-