IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 WP(C).No. 37835 of 2009(O) --------------------------------------- [IA.NOS. 428/09 AND 452/09 IN OS.NO.564/2003 OF MUNSIFF COURT, THIRUVALLA] .................... PETITIONER: ------------------- RAJAMMA GANGADHARAN, AGED 61 YEARS, W/O.GANGADHARAN, KURUPPAMPARAMBIL HOUSE, PALIYEKKARA MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK. BY ADVS. MR.C.V.MANUVILSAN, MR.P.G.SURESH, SMT.K.VIDYA, MR.M.R.VIBIN. RESPONDENTS: ------------------------ 1. THOMAS.K.VARGHESE, AGED 72 YEARS, KURISSUM MOOTTIL HOUSE, PALIYEKKARA MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK, THIRUVALLA.P.O. 2. C.M.DEVARAJAN, KURUPPAMPARAMBIL HOUSE, PALIYEKKARA MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK,THIRUVALLA.P.O. 3. KAVITHA, W/O.K.G.ANIL, KURUPPAMPARAMBIL HOUSE, PALIYEKKARA MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK,THIRUVALLA.P.O. 4. POOJA (MINOR), D/O.K.G.ANIL, KURUPPAMPARAMBIL HOUSE, PALIYEKKARA MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK, REP.BY MOTHER, KAVITHA, W/O.K.G.ANIL, KURUPPAMPARAMBIL HOUSE, PALIYEKKARA MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK,THIRUVALLA.P.O. R1 BY ADV. MR.R.GIREESH VARMA, R2 BY ADV. MR. M.V.S.NAMBOOTHIRY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/02/2010, ALONG WITH W.P.(C). NO. 37836/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.37835/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN I.S. NO.564/2003. EXT.P.2: COPY OF THE DEPOSITION OF PW1. EXT.P.3: COPY OF THE PETITION IN I.A. NO. 428/2009, ALONG WITH THE AFFIDAVIT. EXT.P.4: COPY OF THE PETITION IN I.A. NO. 452/2009, ALONG WITH THE AFFIDAVIT. EXT.P.5: COPY OF THE ORDER IN I.A. NO. 428/2009 PASSED BY THE HON'BLE MUNSIFF COURT, THIRUVALLA. EXT.P.6; COPY OF THE ORDER IN I.A. NO. 452/2009 PASSED BY THE HON'BLE MUNSIFF COURT, THIRUVALLA. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. -------------------------------------------------- WP(C) Nos.37835 & 37836 of 2009 -------------------------------------------------- Dated 23rd February 2010 Judgment The very same petitioner has filed both these Writ Petitions, under Article 227 of the Constitution of India, challenging Exts.P5 and P6 orders passed by the Munsiff's Court, Thiruvalla. Since the point raised in both the petitions are same, they are disposed of by this common judgment. WP(C) No.37835/09 2. The first respondent herein instituted two suits, namely OS Nos.564 and 565 of 2003 before the Munsiff's Court, Thiruvalla, claiming amounts from the defendants, who were two in number originally. Later, it so happened that the first defendant died and his legal heirs were brought on the party array as additional defendants 3 and 4. Both the suits went for trial. At the time of examination, PW1 happened to say that he was aware of WPC 37835 & 37836/09 2 the fact that the mother of the deceased was also not alive. The next day of his deposition, the petitioner filed two petitions in OS No.564/03 i.e., IA No.428/09 for impleading him as the 5th defendant and 452/09 for condoning the delay in filing the impleading petition, to set aside the abatement and to accept IA No.428/09. The Court below by Ext.P6 order dated 19.06.2009 allowed IA No.452/09. Thereafter on 27.6.2009, IA No.428/09 was allowed by Ext.P5 order. The consequence was that the mother of the first defendant, who is no more, was brought on the party array. 3. The learned counsel for the petitioner took objection to the said course. It is pointed out that it was clear from the deposition of PW1 that he was aware that the mother of the first defendant was alive and for no reasons, he chose not to implead her as legal heir, at the first instance. According to the learned counsel, it was in order to fill up the lacuna in the procedure that the present tactics were resorted to. No reason whatsoever is given by WPC 37835 & 37836/09 3 the Court below as to why the person should be impleaded at a belated stage. 4. Though attractive, there is no substance in any of the above contentions. It must be noticed that on the death of the first defendant in the suit, his wife and daughter had already been brought on the party array within the stipulated time. The said fact was averred in the petition for condonation of delay. By oversight, his mother was omitted to be impleaded. The Court below considered those aspects and exercised its discretion. 5. This Court is unable to see that any prejudice or injury has been caused to the petitioner by the impleadment of the mother of the late first defendant. His estate was substantially represented by his wife and daughter and it is only a technical contention. By the impugned order, no prejudice has been caused to the petitioner. It was taking note of all the relevant facts that the petitions were allowed by the Court below. Therefore, no grounds are made out to interfere with the impugned WPC 37835 & 37836/09 4 orders. Accordingly, the Writ Petition is dismissed. WP(C) No.37836/09 6. In view of the dismissal of WP(C) No.37835/09, this Writ Petition is also dismissed. P.BHAVADASAN, JUDGE sta WPC 37835 & 37836/09 5