IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WP(C).No. 15608 of 2010(O) -------------------------- OS.556/2008 of ADDL.MUNSIFF COURT,CHERTHALA .................... PETITIONERS: --------------- 1. NARAYANAN, S/O. KARUMPAN, AGED 83, MALAYATTIL NIKARTHIL FROM, VAZHAKKATTUCHIRA, PANAVALLY VILLAGE, PANAVALLY KMURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 2. VELAYUDHAN, S/O. KARUMPAN, AGED 80, -DO- -DO- BY ADV. DR.V.N.SANKARJEE RESPONDENTS: --------------- 1. ROY K.MATHEW, CHAIRMAN, M/S. KAPPICO KERALA RESORT (PVT) LIMITED, REG.OFFICE, APARTMENT NO.52, M.R.SQUARE, D.H. ROAD, KOCHI -17. 2. EASWARAN PILLAI, S/O.P.G.NAIR, OF -DO- -DO- 3. M/S. KAPPICO KERALA RESORT (PVT) LIMITED REG.OFFICE, APARTMENT NO.52, MR.SQUARE, D.H.ROAD, KOCHI - 17. 4. -DO- REPRESENTED BY DIRECTOR, MRS. RETNA EASWARAN, W/O. EASWARAN PILLAI, RESIDING AT APARTMENT NO.52, M.R. SQUARE, D.H. ROAD, KOCHI - 17. ADV. SRI.K.P.SREEKUMAR SRI.R.RAJESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.(C).No.15608 of 2010 --------------------------------------- Dated this 25th day of June, 2010 JUDGMENT The core issue in the suit is as regards right claimed by petitioners to maintain stake nets allegedly set up by them in the suit property. They claimed that themselves and their predecessor-in-interest obtained license from the appropriate authority to set up stake nets in the suit property and have been making a livelihood out of that. Apprehending that respondent Nos.1 and 2/defendant Nos.1 and 2 might forcibly remove or damage those stake nets or navigate Junkar or other boats through the lake in such a manner as to affect fishing operation with those stake nets petitioners filed O.S.No.556 of 2008 in the court of learned Additional Munsiff, Cherthala and sought for a decree for prohibitory injunction. Respondent Nos.1 and 2 filed written statement on 11-07-2009 and while denying various averments in the plaint contended that petitioners or their predecessor-in- interest have no right or interest in the suit property and that they have recently trespassed into the said property and put up stake nets without authority or permission from the authorities concerned and with a view to obstruct developmental activities being carried out by M/s.Kappico Kerala Resort (Pvt.) Ltd, a W.P.(C).No.15608 of 2010 2 : company registered under the Companies Act. Attempt of petitioners is to extract money from the said company. In paragraph 2 of the written statement they subsequently contended that since M/s.Kappico Kerala Resort (Pvt.) Ltd (for short, “the Company”) is not made a party and the suit is bad for “misjoinder of defendants”. They further contended that respondent No.1 is only the Chairman of the said company but in law the company is a separate entity from its shareholders and officers like respondent No.1, the Chairman. Issues were framed on 14-08-2009. One of the issues is whether suit is bad for non joinder of necessary parties. Learned Munsiff posted the case on four occasions thereafter for pre-trial steps but nothing transpired from the side of petitioners. They came up with an application for appointment of a commission which was posted on 11-02-2010 on the day the suit was posted for trial in the list. That application was dismissed. Petitioners challenged that order in this court in writ petition. This court while confirming the order of dismissal made it clear that if in the course of trial further datas are required it will be open to the petitioners to seek assistance of an Advocate Commissioner. On 22-03-2010 the son-in-law of petitioner No.1 was examined as PW1. On 26-03-2010 the Advocate Commissioner was examined as PW2. In the light of observations contained in W.P.(C).No.15608 of 2010 3 : the order of this court in the writ petition referred above, petitioners brought an application for issue of a commission on 25- 03-2010. On 30-03-2010 petitioners came up with the present application, I.A.No.1232 of 2010 for impleadment of respondent Nos.3 and 4 in this writ petition. Respondent No.3 is the company referred to above and respondent No.4 is the same company to be represented by its Director. That application was resisted by respondent Nos.1 and 2 on various grounds including that there is no bonafides in the application presented at the fag end of proceeding, averments made in the affidavit in support of the application are untrue as revealed from the written statement filed by respondent Nos.1 and 2 where itself non impleadment of the company as a material defect was pleaded. It is also contended that attempt of petitioners is to pressurize respondents to come to terms in the way they wanted. It was pointed out that evidence in the case was almost recorded and at that stage impleadment of additional defendants would only result in relegating the parties to the original position which would result in difficulties and loss to respondent Nos.1 and 2. Learned Munsiff after hearing both sides dismissed the application vide Ext.P5, order. That order is under challenge in this writ petition. Learned counsel for petitioners invited my attention to Order 1 Rule 10(2) of the Code of Civil W.P.(C).No.15608 of 2010 4 : Procedure (for short, “the Code”) which states that court is invested with the power for impleadment at any stage of the proceeding when such impleadment is found necessary to resolve the dispute involved. Learned counsel asserted that it is only when PW1 was in the box that details which enabled petitioners to seek impleadment came out. Learned counsel for respondent Nos.1 and 2 would contend that attempt of petitioners is only to protract the proceedings and put the respondents into further difficulties. It is also contended that a contention which was available to petitioners at the time respondent Nos.1 and 2 filed written statement and which petitioners abandoned cannot be raised at the fag end of proceedings. Reliance is placed on N. Jayaram Reddy Vs. The Revenue Divisional Officer & Land Acquisition Officer, Kurnool (AIR 1979 SC 1393). 2. Question for decision is whether the request for impleadment has to be allowed. I have gone through Ext.P3, application and find that petitioners have not requested for any amendment of body of plaint nor is there any further relief asked for by amendment but what they requested is only impleadment of respondent Nos.3 and 4 as additional defendants. I must bear in mind that in the plaint respondent No.1 is descried as Chairman of the company now sought to be impleaded. In the plaint after W.P.(C).No.15608 of 2010 5 : referring to the address of respondent No.2, name of the company is given in bracket. There is reference in the plaint to respondent Nos.1 and 2/defendant Nos.1 and 2 indulging in activities which allegedly infringed right of petitioners to establish and run stake nets and about respondent Nos.1 and 2 navigating through the canal in such a way as to affect the alleged right of petitioners. Though the company as a defendant, its Chairman has been impleaded. It is not disputed that respondent No.1 is the Chairman of the said company. It is true that the company being a separate legal entity, impleadment of its Chairman alone is not sufficient. But, once again I bear in mind that respondent No.1 was impleaded describing him as Chairman of the company. Therefore, it is not as if the plaint did not contain any reference at all concerning the company. I am inclined to think that respondent No.1 was impleaded only in his capacity as Chairman of the company. Therefore I am persuaded to think that it is not as if without any reference at all in the plaint, the company is sought to be impleaded vide I.A.No.1232 of 2010. 3. No doubt petitioners had sufficient opportunity to seek impleadment of the company right from the time respondent Nos.1 and 2 filed written statement on 11-07-2009 but the application came only after cross examination of PWs.1 and 2 on 30-03-2010. W.P.(C).No.15608 of 2010 6 : True, petitioners have a contention that it is from the suggestive questions put to PW1 and the document which respondent Nos.1 and 2 produced in the trial court that they got information about involvement of the company and other details which necessitated their filing the application for impleadment. I am not very much impressed by that contention having had the occasion of going through the contentions raised in the written statement that does not mean that for that reason alone request of petitioners for impleadment ought to have been rejected. 4. Provision for impleadment of necessary parties is incorporated in Order 1 Rule 10 of the Code with the object of resolving the real issues and avoiding multiplicity of suit. There is no point in dismissing the application for impleading providing, probably for a dismissal of the suit for non impleadment of necessary parties and then permitting petitioners to urge it as a ground in the appeal and making a request for a remand. Impleademnt if not permitted, result is prolonging of the proceeding and possibility of multiplicity of suits in that petitioners can file yet another suit against the company represented by its director or other officer as the case may be. The decision relied on by learned counsel for respondent Nos.1 and 2 is a case where application was made under Order 22 of the Code. It was held W.P.(C).No.15608 of 2010 7 : that when a plea has been abandoned, the party cannot be allowed to taken it up again at the fag end of the proceeding as a last resort. That decision cannot apply to the facts of this case where the application is filed under Order 1 Rule 10 of the Code and that provision permits impleadment at any time before the judgment is pronounced. It cannot be said, in the facts and circumstances of the case that petitioners have abandoned their right to seek impleadment. Petitioners must be given an opportunity to implead respondent Nos.3 and 4 in this writ petition as additional defendants. 5. Certainly prolonging the proceeding would cause much difficulties to respondent Nos.1 and 2. Learned counsel for respondent Nos.1 and 2 has also raised a question whether after impleadment of respondent Nos.3 and 4 petitioners would insist for recording evidence afresh so that petitioners can escape from the admissions PW1 has made on behalf of petitioners. Learned counsel for petitioners state that so far as the law permits, petitioners do not want to re-open the evidence and are prepared to continue with the evidence on record giving newly impleaded defendants opportunity to cross examine the witnesses examined on the side of petitioners. That submission of learned counsel is recorded and accepted. I make it clear that if the law provides so, W.P.(C).No.15608 of 2010 8 : it will be open to the respondents to request the court below to proceed with evidence already recorded and giving the newly added defendants opportunity to cross examine the witnesses already examined on the side of petitioners. 6. I stated that the application for impleadment is highly belated. True Order 1 Rule 10 of the Code permits impleadment at any stage of the proceeding. That does not enable a party to sleep over the matter until fag end of the proceedings. Having regard to the facts and circumstances of the case I am inclined to think that petitioners having brought up the application for amendment at a belated stage must pay costs to respondent No.1 and 2. In the circumstance I direct that the application will stand allowed on condition that petitioners paid to respondent Nos.1 and 2 cost of Rs.7,500/- . Resultantly the writ petition is allowed in the following lines: (i) This writ petition will stand allowed, order under challenge set aside and I.A.No.1232 of 2010 will stand allowed on condition that petitioners deposited in this court for payment or paid to respondent Nos.1 and 2 through their counsel in this court a sum of Rs.7,500/- (Seven Thousand Five Hundred Only) within three weeks from this day. W.P.(C).No.15608 of 2010 9 : (ii) In case of non compliance, this writ petition will stand dismissed in confirmation of the order under challenge. (iii) In case condition regarding payment of cost is complied and I.A.No.1232 of 2010 will stand allowed and the matter remitted to the court of learned Munsiff for further steps. Learned Munsiff shall implead respondent Nos.3 and 4 as additional defendants, issue summons to them and proceeded with the trial of the suit as provided under law. (iv) I make it clear that if the law so provides, as undertaken by learned counsel on behalf of the petitioners evidence shall be recorded after impleadment in continuation of the evidence already recorded giving opportunity to the newly impleaded defendants to cross examine the witnesses of petitioners already examined. Post after three weeks. (THOMAS P JOSEPH, JUDGE) Sbna/-