IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 6324 of 2008(C) ------------------------------------- AS.NO.34/2001 OF PRL.SUB COURT,TRIVANDRUM .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ----------------------------------------------------------------- 1. NANUKUTTAN, S/O. SANKARAN, RESIDING AT OPPOSITE SIDE OF GIRLS HIGH SCHOOL, PATTOM, THIRUVANANTHAPURAM, (ORIGINAL ADDRESS), ARUNALAYAM, TC 3/2545, PATTOM P.O., MARAPPALAM, THIRUVANANTHAPURAM. 2. LALITHA KUMARI, D/O. DEVAKI, RESIDING AT OPPOSITE SIDE OF GIRLS HIGH SCHOOL, PATTOM, THIRUVANANTHAPURAM, (ORIGINAL ADDRESS- ARUNALAYAM, TC 3/2545-1, PATTOM P.O., MARAPPALAM, THIRUVANANTHAPURAM. BY ADVS. MR.D.KISHORE, SMT.MEERA GOPINATH. RESPONDENTS/APPELLANTS/PLAINTIFFS: -------------------------------------------------------------- 1. GOPALAN BALAKRISHNAN, S/O. GOPALAN, KRISHNAVILASOM BUNGLOW, KOCHU KAPARAMBU VEEDU, PATTOM, KOWDIAR VILLAGE, PATTOM PALACE P.O., THIRUVANANTHAPURAM. 2. LEELA, W/O. BALAKRISHNAN NAIR, KRISHNAVILASAM BUNGLOW, KOCHUKARAPARAMBU VEEDU, PATTOM PALACE P.O., THIRUVANANTHAPURAM. R1 & R2 BY ADVS. MR.L.MOHANAN, SMT.LIGEY ANTONY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.6324/2008-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. 1182/97 OF MUNSIFF COURT, TVPM. EXT.P.2: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS. EXT.P.3: COPY OF THE JUDGMENT IN O.S. 1182/97. EXT.P.4: COPY OF THE JUDGMENT IN A.S. 34/01. EXT.P.5: COPY OF THE JUDGMENT IN FAO 171/07 OF THIS HONOURABLE COURT. EXT.P.6: COPY OF THE AFFIDAVIT AND PETITION IN I.A. 543/08 IN A.S. 34/01. EXT.P.7: COPY OF THE OBJECTION FILED BY PETITIONERS TO EXT.P.6. EXT.P.8: COPY OF THE AFFIDAVIT AND PETITION IN I.A. 565/08 IN A.S.34/01. EXT.P.9: COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P.7. EXT.P.10: COPY OF THE COMMISSION REPORT IN O.S. 127/96. EXT.P.11: COPY OF THE ORDER DTD. 12/02/08 INI.A. 543/08 AND I.A. 565/08 IN A.S. 34/01. EXT.P.12: COPY OF THE JUDGMENT IN O.S. 127/96. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.6324 of 2008 - C --------------------------------- Dated this the 10th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following relief: “To call for the records leading to the passing of Ext.P11 and quash the same”. 2. Petitioners, two in number, are the defendants in O.S.NO.1182/1997 on the file of the 1st Additional Munsiff court, Thiruvananthapuram and the respondents are the plaintiffs in that suit. In view of the submissions made by the counsel on both sides a detailed narration leading to the issue of Ext.P11 order which is impeached in this writ petition is not warranted. Suffice to say, the plaintiffs moved an application for amendment of the plaint and also impleadment of an additional party as defendant in the suit in the appeal preferred against the dismissal of the suit. Ext.P6 is the copy of the application moved for amendment and Ext.P8, copy of the application for impleadment of an additional party as additional defendant in the suit. W.P.(C).No.6324 of 2008 - C 2 Learned Sub Judge having seisn over the appeal, after hearing both sides passed Ext.P11 order allowing the amendment sought for and also impleadment of the new party as additional defendant as desired by the plaintiffs. Correctness and propriety of Ext.p11 is impeached in this writ petition. 3. At the time of hearing, the learned counsel for the respondent fairly submitted that fresh orders can be directed on Exts.P6 and P8 annulling Ext.P11 order since the learned Sub Judge had passed Ext.P11 order keeping the appeal on its file and before hearing the appeal on its merits. Undoubtedly, when such amendment application was moved by the plaintiff with an application for impleadment of a party as additional defendant, such applications should have been considered on hearing of the appeal and if any merit was found in such applications, naturally, it would have resulted in setting aside judgment impugned and remitting the case to the court below. The procedure followed by the learned sub Judge in considering Exts.P6 and P8 applications before hearing appeal is irregular. Ext.P11 order is set aside directing the court below to hear Exts.P6 and P8 applications W.P.(C).No.6324 of 2008 - C 3 along with appeal and pass appropriate orders on such applications in accordance with law. Learned Sub Judge shall also give top priority to the hearing of the appeal since it has arisen in a suit filed as early in 1997. The writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-