IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 WP(C).No.37941 of 2008 (P) ---------------------------------- AGAINST THE ORDER IN I.A.3099/08 IN OS.331/2006 of PRL.MUNSIFF COURT, PALAKKAD .................... PETITIONER(S): --------------- SMT.P.S.SARADAMBAL W/O. P.V.VISWANATHAN, HOUSE NO.1/784, KALCHETTY STREET, KALPATHY, PALAKKAD TALUK PALAKKAD DISTRICT. BY ADV. SRI.LIJU. M.P SRI.M.SUGADHA KUMAR RESPONDENTS: ------------------ 1. P.N.GOPALAKRISHNAN HOUSE NO. 1/783-1,"SRIVIGNESH" SINGLE STREET KALPATHY, PALAKKAD TALUK,PALAKKAD DISTRICT 2. P.N.BALASUBRAMANIAN HOUSE NO.2/673, 'SAMPOORNA' DEVI COLONY, AMBIKAPURAM, PALAKKAD TALUK,PALAKKAD DISTRICT . THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C No.37941 of 2008 ------------------------------------------------ Dated this the 1st day of January, 2009 JUDGMENT Petitioner is the plaintiff in O.S.331/06 on the file of the Munsiff's Court, Palakkad. Other than the respondents, Palakkad Municipality had been impleaded as the third defendant in the suit initially. Vide Ext.P1 application petitioner/plaintiff prayed for the third defendant being deleted from the party array and it is submitted that the prayer was allowed by the trial court. After such deletion defendants 1 and 2 filed an additional written statement contending that without impleading the Palakkad Municipality as a party, the suit is bad for non-joinder of necessary parties. When the suit stood posted for steps to 21/08/08 the plaintiff filed Ext.P2 petition on 20th of August, 2008 for W. P. C No.37941 of 2008 -2- additional issue No.8 viz. as to whether the suit is bad for non-joinder of necessary parties being heard as a preliminary issue. 2. After hearing arguments in detail the court below vide Ext.P3 order dismissed the said petition holding that the question as to whether the suit is bad for non-joinder of necessary parties is a mixed question of fact and law; that to decide that issue the entire documents have to be verified and to a certain extent oral evidence also is required and that therefore, the issue regarding the non-joinder need not be heard as a preliminary issue. It is the said order that is assailed before me by the petitioner/plaintiff. 3. It is vehemently contended before me by the learned counsel for the plaintiff that unless a finding is entered into by the court on the issue regarding non-joinder, the W. P. C No.37941 of 2008 -3- petitioner/plaintiff will not be able to cure the defect if any and that therefore, the impugned order Ext.P3 be set aside and the court below be directed to enter a finding as to whether the suit is bad for non-joinder of necessary parties considering it as a preliminary issue. 4. There is absolutely no merit in the argument advanced. The question as to whether a suit is bad for non-joinder of necessary parties is not an issue that has to be decided as a preliminary issue. It would be enough in view of raising such an issue that the plaintiff is given an opportunity to cure the defect of non-joinder if any. It is for the plaintiff to decide as to whether he should proceed with the suit without impleading any other party or to implead any additional party to cure the defect of non-joinder contended. W. P. C No.37941 of 2008 -4- 5. In the result, I refuse admission and dispose of this Writ Petition, but without prejudice to the petitioner moving for additional party being impleaded to cure the defect of non-joinder if they so chose. If an application in that behalf is filed within three weeks from today, the trial court shall give an opportunity to cure the defect. The petitioner shall also be at liberty not to move for impleadment of any additional party if according to her no additional party is required to be impleaded in the suit in the nature of the suit. Any decision taken by the petitioner/plaintiff will be at her own risk. If the petitioner/plaintiff expresses desire to implead additional party the court below shall remove the case from the list and afford an opportunity to the petitioner/plaintiff to file appropriate petition in that behalf. W. P. C No.37941 of 2008 -5- 6. This Writ Petition is disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioner urgently. K.P.BALACHANDRAN, JUDGE kns/-