IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 CRP.No. 2716 of 2001(G) ---------------------------------- OS.54/1999 of MUNSIFF COURT, PAYYOLI .................... REVN. PETITIONER(S): R3 & D3 -------------------------------- MUTAPPILAVIL SREE AYYAPPANKANDI MAHA VISHNU KSHETHRA COMMITTEE RAKSHADHIKARI PERIKKANAYI P.CHANDRAN, RESIDING AT MANGALASSERY ESTATE, S/O. KUNHICHEKKAN, MANANTHAVADY TALUK, VELLAMUNDA VILLAGE. BY MR. K.RAMAKUMAR, SENIOR ADVOCATE BY ADV. MR.T.K.AJITH KUMAR RESPONDENT(S): PETITIONERS & PLAINTIFF AND RESPONDENTS 1,2,&4 TO 8 ------------------------ AND D1,D2 & D4 TO D8. 1. PADINHARE KALARIYIL MEETHAL MANIKKAM, D/O. CHEKKAYI, MANTHARATHUR AMSOM, KURUNTHOTI DESOM, VATAKARA TALUK. 2. PATINHJAREMEETHAL BALAN, S/O. KANARAN, DO. AMSOM, DESOM. 3. MALAYAMVELLI MEETHAL PARKUM PATINHARE MEETHAL KANNAN, FARMER, MANTHARATHOOR AMSOM, MUTAPPILAVIL DESOM, VATAKARA TALUK. 4. MUTAPPILAVIL SREE AYYAPPANKANDI MAHA VISHNU KSHETHRA COMMITTEE, REP.BY ITS PRESIDENT T.K.GANGADHARN NAMBIAR, S/O. NARAYANAN ADIYODI, MANTHARATHOOR AMSOM, MUTAPPILLAVIL DESOM. 5. DO. PRESIDENT THAZHE KOMATH T.K.GANGADHARA NAMBIAR, MANDARATHOOR AMSOM, MUTTAPPILAVIL DESOM. 6. DO. VICE-PRESIDENT ATTUPURATH THAZHEPARKUM KOYYANDATHIL KUNHIKKANNAN, DO. DESOM. 7. DO. SECRETARY, MEETHALAKOTH THAZHEPARKUM M.V.RAJAN, S/O. KORAN, DO. DESOM. 8. DO. JOINT SECRETARY, CHELAPPURATH C.CHANDRASEKHARAN, S/O. GOPALAN NAIR, DO. DESOM. 9. DO. TREASURER THARAVATTATH T.T.SATHIAN, S/O. CHATHUR, DO. DESOM. R1 & R2 BY ADVS.MR.S.ANANTHAKRISHNAN, MR.N.K.SUBRAMANIAN. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/02/2010, ALONG WITH CRP NO. 651 OF 2003 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CMP. NO.5761/2001 IN CRP. NO.2716/2001 DISMISSED 01/02/2010 SD/- S.S.SATHEESACHANDRAN, JUDGE TRUE COPY P.S. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ------------------------------------------------ C.R.P.Nos.2716 of 2001 & 651 of 2003 ----------------------------------------------- Dated this the 1st day of February, 2010 O R D E R These two revisions arise from two separate orders passed by the learned Munsiff, Payyoli in O.S.No.54/99 on the file of the Munsiff-Magistrate, Payyoli. 2. C.R.P.No.2716/01 has been filed by the 3rd defendant in the suit, challenging an order passed by the court below, allowing an application for amendment of the plaint. The other revision is by the plaintiffs against the findings entered by the court on two of the issues preliminarily directing the plaintiffs to implead some persons as co-plaintiffs in the suit. 3. I heard the counsel on both sides. Pursuant to the filing of the written statement by the 3rd defendant in which he had disputed the title of the plaintiffs over the suit property, after serving an interrogatory on the defendant and answers furnished thereon by that defendant, the plaintiffs applied for C.R.P.Nos.2716/01 & 651/03 :: 2 :: an amendment to bring in some particulars to traverse the contentions raised by the defendant in his written statement. Counsel for the petitioner/3rd defendant read over to me the amendments canvassed by the plaintiffs. Prima facie, it would appear that very many allegations sought to be introduced by way of amendment do not strictly fall within the nature of pleadings contemplated under Order VI Rule 2 of the Code Civil Procedure to sustain, the reliefs canvassed in the suit. Whatever that be, it is seen, the court below has allowed the amendment, negativing the objections canvassed by the petitioner/3rd defendant. Objections canvassed by the 3rd defendant are not adverted to nor considered while granting amendment, is the grievance espoused by the petitioner/3rd defendant. Suit has been filed for declaration of title and recovery of possession. From the submissions made by the counsel, it is seen, the 3rd defendant has resisted the claim of the plaintiffs contending that he has prescribed title C.R.P.Nos.2716/01 & 651/03 :: 3 :: over the property by adverse possession. In addition thereto, he has impeached the locus standi of the plaintiffs to institute the suit and also its entertainability for non-joinder of parties. After the amendment, under Act 104/76, in the Code of Civil Procedure, there is no provision enabling the plaintiffs to file a replication once written statement is filed to explain away the contentions raised by the defendant in his statement. So much so, in some cases, it becomes inevitable for the plaintiffs to explain such contentions by seeking an amendment of the plaint. Evidently, in the present case by seeking the amendment the plaintiffs desired to explain away the contentions canvassed by the defendant in his written statement as meritless. Though the amendment sought for and allowed contain very many statements, which do not strictly fall within the scope of pleadings as covered by rules, I find no prejudice thereby has been caused to the defendant. Learned counsel for the petitioner submits C.R.P.Nos.2716/01 & 651/03 :: 4 :: that the defendant has already filed an additional written statement to the amended plaint and it has been received by the court. In such circumstances, I find no interference with the order impugned in C.R.P.No.2716/01 is called for and that revision deserves only to be dismissed. I do so. 4. With respect to the challenge raised by the plaintiffs against the order passed by the court below on the findings entered preliminarily over two issues raised in the suit, after hearing both sides, I find that the court below has lost sight of the fact that the plaintiff is the dominus litus of suit and he cannot be directed to implead others as co-plaintiffs to prosecute his suit. No doubt an issue raised as to non-joinder of parties raised in a suit has to be considered preliminarily before proceeding with the trial of the case. Still where a decision thereof can be entered into only on the basis of evidence to be let in by the parties, such an issue cannot be decided before trial. C.R.P.Nos.2716/01 & 651/03 :: 5 :: An issue can be considered preliminarily only on a question of jurisdiction or a bar suit created by any law provided it can be decided without taking evidence. It has to be noted that Order XIV of the Code Civil Procedure commands the pronouncing of judgment on all issues, and even finding in an issue preliminarily will fall within the sweep of judgment. The question whether the plaintiff has locus standi or is the suit bad for non-joinder of parties for the reason that a necessary party has not been included, can be decided preliminarily if no evidence need be looked into for such decision. Merely on the contentions raised by the defendant that someone else too has got a right over the property a court cannot enter finding thereof when that case is disputed by the plaintiff. Decision on that disputed question can be taken only after taking evidence. At any rate, if evidence is let in that the suit is bad in view of the non-impleadment of a necessary party, no doubt, then the plaintiff has to C.R.P.Nos.2716/01 & 651/03 :: 6 :: suffer, as a declaration of title cannot be granted without the presence of the parties having a right over an immovable property. However, that question could be considered where it is seriously disputed only after trial providing opportunity to both parties to lead evidence in support of their case. The finding on the preliminary issues rendered as regards the locus standi of the plaintiffs and also non-joinder of parties in the suit are liable to be vacated. The court below shall consider the same afresh after trial. Civil Revision Petitions are disposed of as indicated above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE SK/- //true copy//