IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 OP(C).No. 44 of 2011(O) ----------------------------- OS.245/2008 of MUNSIFF COURT, TIRUR .................... PETITIONER --------------- NELLIYALI MOIDEENKUTTY,S/O.POKKUTTY, TANALOOR AMSOM,MEENADATHUR DESOM,MEENADATHUR POST- PIN,TIRUR TALUK,MALAPPURAM DISTRICT. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT(S): --------------------- 1. NELLIYALI SHAMSU @ SHAMSUDHEEN, S/O.KUNHEENKUTTY,THANALOOR AMSOM,MEENADATHUR DESOM MEENADATHUR(PO),TIRUR TALUK, MALAPPURAM DISTRICT,PIN-679534. 2. NOORJAHAN,W/O.SHAMSU @ SHAMSUDHEEN, THANALOOR AMSOM,MEENADATHUR DESOM,MEENADATHUR(PO)- TIRUR TALUK,MALAPPURAM DISTRICT,PIN-679534. 3. KUNHEEDU,S/O.MELETHIL HYDER HAJI, THALAKKADATHOOR AMSOM,AREEKKAD DESOM,AREEKKAD(PO), PIN-TIRUR TALUK,MALAPPURAM DISTRICT,PIN-679534. R2-3 BY ADVS. SRI.K.RAMACHANDRAN SRI.S.SREEDEV THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 44/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. NO.245/2008 BEFORE THE MUNSIFF COURT TIRUR DATED 02/09/2008. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS/ DEFENDANTS DATED 10/06/2009. P3: COPY OF THE 1ST COMMISSIONER REPORT DATED 18/09/2008. P4: COPY OF THE 2ND COMMISSIONER REPORT DATED 08/02/2010. P5: COPY OF THE 3RD COMMISSIONER REPORT DATED 05/10/2010. P6: COPY OF THE I.A. NO.2847/2010 IN O.S. NO.245/2008 BEFORE THE MUNSIFF COURT TIRUR DATED 11/11/2010 FOR IMPLEADING. P7: COPY OF THE I.A. NO. 2848/2010 IN O.S. NO.245/2008 BEFORE THE MUNSIFF COURT TIRUR DATED 11/11/2011 FOR AMENDMENT OF PLAINT. P8: COPY OF THE ORDER IN I.A. NO.2847/2010 & 2848/2010 IN O.S. NO.245/2008 BEFORE THE MUNSIFF COURT TIRUR DATED 15/12/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.44 of 2011 --------------------------------------- Dated this 19th day of August, 2011 JUDGMENT Plaintiff in O.S.No.245 of 2008 of the Court of learned Munsiff, Tirur challenges Ext.P8, order on I.A.No.2847 of 2010 refusing to implead a third party as additional defendant in the suit. The suit as instituted in the courts below and as it stands now, is merely for a decree for prohibitory injunction against respondents 1 to 3 causing obstruction to the disputed way marked 'w' in the rough sketch produced along with plaint and preventing petitioner and others from using the said way. Respondents 1 to 3/defendants contended, according to the petitioner, that identity of the way can clearly be made out only if the entire property including that of the person who is sought to be impleaded as additional defendant is measured. Thereon, petitioner filed I.A.No.2847 of 2010 to implead the person who is said to possess property on the further east of the disputed way. That application was dismissed. Learned counsel submits that dismissal of the application for the reason that it is belated is not correct since the application was filed when the case was posted for pre-trial steps. It is also contended that impleadment prayed O.P(C).No.44 of 2011 -: 2 :- for is necessary for a proper adjudication of the dispute. 2. Learned counsel for respondents 2 and 3 has contended that on the face of averments in the plaint and the reliefs sought, impleadment is not necessary. It is pointed out by learned counsel that according to the petitioner, there is a clear cut, identifiable way in respect of which relief is sought for. It is also pointed out by learned counsel that the suit is merely for injunction. Learned counsel has referred me to Ext.P8, order where, in paragraphs 14 and 15 learned Munsiff has pointed out that petitioner has come up with a case of existence of a specific, clearly identifiable way and sought relief of injunction regarding that way and there is no case that the said way has become non existent so that measurement of property is required for its identification. In that situation the present prayer for impleadment as if boundaries of the disputed way is to be fixed (which is not prayed for in the plaint ) is not required. 3. Having heard learned counsel on both sides and gone through the scope of the suit and the averment in Ext.P1, plaint, I am inclined to think that this being a suit for injunction as it now stands with payment of court fee under Sec.27(c) of the Court Fees and Suit Valuation Act impleadment of the third party is not O.P(C).No.44 of 2011 -: 3 :- required since according to the petitioner and as stated in the plaint, it is respondents 1 to 3 who (allegedly) attempted to interfere with his (alleged) user of the way in question. To decide that question, impleadment of third party is not required. However, I am not going into the question as to whether impleadment will be necessary in case any further relief is asked for in the plaint. I also make it clear that I have not expressed any opinion in that matter. 4. As things stands now, impleadment of third party as prayed for, is not necessary. This original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-