IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 WP(C).No. 11602 of 2009(O) --------------------------------------- OS.518/2008 of MUNSIFF COURT,CHERTHALA .................... PETITIONER(S): ---------------------- KRISHNA SHENOY, PUTHENKADU MADAM, ANDHAKARANAZHY P.O., CHERTHALA. BY ADV. MR.J.OM PRAKASH RESPONDENT(S): ------------------------ RAMACHANDRA SHENOY, PUTHENKADU MADAM, ANDHAKARANAZHY P.O., CHERTHALA. BY ADV. MR.E.K.NANDAKUMAR, MR.A.K.JAYASANKAR NAMBIAR, MR.K.JOHN MATHAI, MR.P.BENNY THOMAS, MR.ANIL D. NAIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 11602/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT O.S.518/2008 OF MUNSIFF'S COURT, CHERTHALA DATED 04/07/2008. EXT.P2: COPY OF THE WRITTEN STATEMENT IN OS.518/2008 DATED 28/07/2008. EXT.P3: COPY OF THE I.A.3361/2008 IN O.S.518/2008 DATED 24/09/2008. EXT.P4: COPY OF THE OBJECTION IN I.A.3361/2008 IN OS.518/2008 DATED 04/10/2008. EXT.P5: COPY OF THE ORDER DATED 03/03/2009 IN I.A.3361/2008 IN O.S.518/2008. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE RELEVANT PAGE OF KERALA KAUMUDI DAILY DATED 29/03/2009. //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.11602 OF 2009 (O) ----------------------------------- Dated this the 12th day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to issue a writ of certiorari calling for the records relating to Ext.P5 and quash the same; ii. to grant such other further reliefs which this Honourable court deems fit to grant under the circumstance of the case. 2. Petitioner is the defendant in O.S.No.518 of 2008 on the file of the Munsiff's Court, Cherthala. Suit is one for injunction, both prohibitory and mandatory. Respondent is the plaintiff. Parties are brothers and dispute relate to the enjoyment and cultivation of paddy fields which previously was owned by their common ancestor. It is the case of the plaintiff that for enjoyment and cultivation of his 'A' schedule property, free flow of water through 'C' schedule canal is WPC.11602/09 2 absolutely essential, but it has been filled up by the defendant. Suit has been filed for a decree of mandatory injunction to direct the defendant to remove the soil dumped in 'C' schedule canal and to restore it as it was before. A decree of perpetual injunction was also sought for to restrain the defendant in making use of 'D' schedule structures so that it could be conveniently used by other cultivators also. Suit was filed in a representative capacity by the plaintiff moving an application under Order I Rule 8 of the Code of Civil Procedure. Suing in a representative capacity by the plaintiff was challenged by the defendant contending that only the successors of their common ancestor numbering 17 persons including the parties to the suit are interested in the subject matter, and so much so, this is a case where Order I Rule 8 of CPC has no application. Objection so raised by the petitioner/defendant was negatived by the learned Munsiff vide Ext.P5 order. Propriety and correctness of Ext.P5 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. WPC.11602/09 3 3. I heard the learned counsel on both sides. After hearing the counsel on both sides at length and examining Ext.P5 order, I find some force in the submissions of the learned counsel for the petitioner that strictly speaking, Order I Rule 8 of CPC can have no application in the present case where the number of persons is not numerous but limited. However, taking note of the submissions made by the learned counsel for the respondent/plaintiff, I find resolution of the disputes involved in the case has to be examined not with reference to the technical objections canvassed relating to Order I Rule 8 of CPC, but on the basis of the legal rights of the parties to claim the reliefs sought for in the suit. The petitioner/defendant has raised a contention that the number of persons interested is only 17, whereas the respondent/plaintiff pleads ignorance as to who are the sharers of the property in the adjoining paddy fields which originally belonged to their common ancestor, and, therefore, of his inability to bring them in the party array in the suit. It is further submitted by the learned counsel without knowing whether sharers retain the property or their alienees are now WPC.11602/09 4 in possession it is impossible for the plaintiff to implead them as parties to the suit. Having regard to the nature of the allegations raised and the reliefs claimed, it appears, the plaintiff can sustain the suit in his individual capacity as an owner and cultivator in enjoyment of 'B' schedule irrespective of the question whether other adjoining property owners are also interested in the reliefs claimed in the suit. In case, the defendant provides the plaintiff the name and particulars of the remaining 15 persons, excluding the plaintiff and the defendant, within one month from the date of this judgment, it is open to the plaintiff to implead them as parties to the suit. Even if no such impleadment is made, the court below shall consider whether the plaintiff is entitled to sue in his individual capacity for the reliefs claimed in that suit. He has filed the suit in a representative capacity will not be taken as a bar if his entitlement to claim the relief in his individual capacity is otherwise found entertainable. Plaintiff can move for proper amendment of the plaint in case he desires to sue in its individual capacity. Ext.P5 order is set aside subject to the observations made above. WPC.11602/09 5 The writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp