IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WP(C).No. 29524 of 2008(M) --------------------------------------- IA.1266/2008 IN OS.379/2007 of PRL.MUNSIFF COURT-I, KOZHIKODE .................... PETITIONER(S): --------------------- K.BABY @ GIRIJA, W/O.K.R.BALAN, AGED 59 YEARS, RESIDING AT KAREEPADATH HOUSE, V.K. KRISHNA MENON ROAD, PANNIYANKARA AMSOM, KALAI, KOZHIKODE DISTRICT. BY ADV. MR.K.M.FIROZ RESPONDENTS ----------------------- 1. MALU, AGED 70 YEARS, W/O.LATE NAMBIDI GOPALAN, KAMPITTAVALAPOU, KANNACHERY P.O., KALLAI, PANNIYANKARA AMSOM, DESOM, KOZHIKODE-3. 2. VIDYASAGARAN, AGED 48 YEARS, S/O.LATE NAMBIDI GOPALAN, KAMPITTAVALAPOU, KANNACHERY P.O., KALLAI PANNIYANKARA AMSOM, DESOM, KOZHIKODE-3. 3. VIDYABOOSHAN, AGED 45 YEARS, S/O.LATE NAMBIDI GOPALAN, KAMPITTAVALAPOU, KANNACHERY P.O., KALLAI, PANNIYANKARA AMSOM, DESOM, KOZHIKODE-3. 4. VIDYADHARAN, AGED 41 YEARS, S/O.LATE NAMBIDI GOPALAN, KAMPITTAVALAPOU, KANNACHERY P.O., KALLAI, PANNIYANKARA AMSOM, DESOM, KOZHIKODE-3. 5. NALINI, AGED 66 YEARS, W/O.LATE POOVATHUMKANDY KARUNAKARAN, KARUNA, VALAYANAD AMSOM, DESOM, KOZHIKODE. WP(C).No. 29524 of 2008(M) 6. SAJEESH, AGED 37 YEARS, S/O.LATE POOVATHUMKANDY KARUNAKARAN, KARUNA, VALAYANAD AMSOM, DESOM, KOZHIKODE. 7. SASIPRABHA, AGED 42 YEARS, D/O.LATE POOVATHUMKANDY KARUNAKARAN, KARUNA, VALAYANAD AMSOM, DESOM, KOZHIKODE. 8. SREEJA, AGED 40 YEARS, D/O.LATE POOVATHUMKANDY KARUNAKARAN, KARUNA, VALAYANAD AMSOM, DESOM, KOZHIKODE. R1 TO R4 BY ADV. MR.R.SUDHISH, SMT.M.MANJU. R5 TO R8 BY ADV. MR.V.T.MADHAVANUNNI , MR.V.A.SATHEESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29524 of 2008(M) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN THE SUIT O.S. NO.379 OF 2007 ON THE FILES OF THE PRINCIPAL MUNSIFF I, COURT, KOZHIKODE. EXT.P2: COPY OF THE APPLICATION DATED 10/03/2008 SUPPORTED BY AN AFFIDAVIT DATED 10/03/2008 (ALONG WITH THE ORDERS PASSED BY THE COURT IN THE SAID IA) OBTAINED FROM THE HONOURABLE MUNSIFF COURT I, KOZHIKODE. EXT.P3: COPY OF THE ORDER DATED 30/05/2008 PASSED BY THE PRINCIPAL MUNSIFF I, KOZHIKODE IN I.A. NO.1266 OF 2008 IN OS NO.379/2007. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.29524 of 2008 - M --------------------------------- Dated this the 18th day of August, 2009 J U D G M E N T The writ petition is filed seeking the following relief: “To call for the records leading to Exhibit P3 order passed in I.A.No.1266 of 2008 in O.S.No.379 of 2007 dated 30.05.2008 by the Principal, Munsiff Court I, Kozhikode and to set aside the same and to dismiss the said application with cost to the petitioner herein.” 2. Petitioner challenges the order passed in I.A.No.1266 of 2008 in O.S.No.379 of 2007 passed by the learned Principal Munsiff I, Kozhikode. The above suit was filed by the respondents 5 to 8 seeking a decree of injunction, both prohibitory and mandatory. Respondents 1 to 4 are the defendants in that suit. The defendants setting up a counter claim of declaration of right to easement over the pathway, moved an application for impleading the present petitioner as co-defendant in the suit. The learned Munsiff, after hearing both sides, allowed that application vide Ext.P3 order. Propriety and correctness of Ext.P3 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. W.P.(C).No.29524 of 2008 - M 2 3. I heard the counsel on both sides. 4. In a suit filed by respondents 5 to 8 wherein reliefs are confined to and proceeded only against respondents 1 to 4, the defendants, without an application at the instance of the plaintiff, petitioner cannot be impleaded as a co-defendant against whom no relief is claimed, is the submission of the learned counsel for the petitioner. After filing of the suit, some portions of the plaint property had been assigned in favour of the present petitioner and in the pathway over which right of easement is claimed by the respondents 1 to 4, petitioner too has got some right, according to the learned counsel for respondents 1 to 4/defendants in the suit. In that context to sustain the counter claim raised the application was moved for impleadment of the petitioner as co-defendant, submits the learned counsel for the respondents 1 to 4. Whatever that be, the plaintiff is the master of the suit. Of course, the defendants are entitled to raise a counter claim as provided by law as against the plaintiff but, not against any of the defendants. Even if the petitioner is impleaded as a co-defendant as desired by the respondents 1 to W.P.(C).No.29524 of 2008 - M 3 4, they cannot sustain the counter claim against the defendant. Further more, at the instance of the defendant a party cannot be added as a co-defendant. He can at the most raise a plea that suit is bad for nonjoinder of parties and if the court, after hearing both sides finds so, can pass appropriate orders thereof. The court below has not adverted to any of the above aspects while passing Ext.P3 order. Ext.P3 order cannot sustained under law and it is set aside. The writ petition is disposed of as indicated above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-