IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 RSA.No. 1316 of 2008() ---------------------- AS.94/2005 of PRL.SUB COURT, KOZHIKODE OS.621/2003 of PRL.M.C.KOZHIKODE-I .................... APPELLANT/ APPELLANT/PLAINTIFF --------------------------------------- KUNNUMMAL IMBICHI NAGAN, S/O.KEERAN, AGED 81, KUNNUMMAL HOUSE, MANIPURAM P.O., PUTHOOR AMSOM, KANAYANNOOR DESOM, KOZHIKODE DT. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS/RESPONDENTS/DEFENDANTS ------------------------- 1. KODUVALLY GRAMA PANCHAYATH, REPRESENTED BY SECRETARY, KODUVALLY P.O., KODUVALLY AMSOM AND DESOM OF KOZHIKODE DT. 2. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOZHIKODE. 3. SPECIAL DEPUTY TAHASILDAR (ARREARS COLLECTION) KASABA AMSOM AND DESOM OF KOZHIKODE DT. 4. VILLAGE OFFICER, PUTHUR VILLAGE OFFICE, PUTHUR AMSOM AND DESOM, MANIPURAM P.O., KOZHIKODE DT. 5. DISTRICT LABOUR OFFICER, KOZHIKODE, NEDUNGOTTUR AMSOM AND DESOM, KOZHIKODE DT. ADV. SRI.P.V.KUNHIKRISHNAN FOR R1 GOVERNMENT PLEADER: P.K.JAYAKRISHNAN FOR R2-5 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- I.A.No.2910 of 2009 in R.S.A.No.1316 of 2008 --------------------------------------- Dated this 23rd day of March, 2010 JUDGMENT This appeal arises from judgment and decree of learned Principal Munsiff, Kozhikode in O.S.No.621 of 2003 confirmed by learned Principal Sub Judge, Kozhikode in A.S.No.94 of 2005. Appellant/plaintiff claimed that he is an agricultural labourer, on his application agricultural labourer's pension was sanctioned to him and it was disbursed to him during 1993-98. While so, one Imbichi Nagan, S/o. Unnayaman preferred a complaint to the authorities stating that pension was actually sanctioned to him but, fraudulently collected by the appellant who is Imbichi Nagan, S/o. Keeran. Thereon, appellant received notices from respondent No.1 on 17-11-2001 and 04-12-2001 asking him to remit pension received by him during October 1997 to September 1998. Appellant replied to that notice stating that he was entitled to get pension and that there was no fraud in collecting the same. Respondent Nos.2 to 5 resorted revenue recovery proceedings under the provisions of the Revenue Recovery Act (for short, “the Act”). Appellant issued notice under 249 of the Panchayath Raj Act and filed the suit for a declaration among other things that he was entitled to receive pension during the relevant time, it was not payable I.A.No.2910 of 2009 in R.S.A.No.1316 of 2008 2 to Imbichi Nagan S/o. Unniyannan and that the demand notice issued by respondent Nos.2 to 5 is illegal and unsustainable and for prohibitory injunction. Respondent No.1 contended that appellant had applied to the District Labour Authority concerned on 10-08-1982 for pension but it was dismissed on 27-08-1983 as his annual income exceeded permissible limits. Later, Imbichi Nagan S/o. Unniyannan applied for pension on 06-11-1992 and that was allowed on 24-02- 1993. Pension sanctioned for the period from September 1997 onwards was collected by the appellant fraudulently and impersonating himself as Imbichi Nagan S/o. Unniyannan. Hence the proceeding for recovery of the amount. Respondent Nos.2 to 5 contended that the suit is not maintainable in view of section 72 of the Act. Courts below held that Ext.B1, file obtained from the office of Ombudsman stated that pension was not sanctioned in favour of the appellant, it was given to Imbichi Nagan S/o. Unniyannan but it was fraudulently collected by the appellant by impersonating himself as Imbichi Nagan S/o. Unniyannan. Non impleadment of Imbichi Nagan S/o.Unniyannan is also referred to as a reason for dismissal of the suit. Hence the second appeal which was admitted on substantial question of law framed on 26-10-2009. 2. I.A.No.2910 of 2009 is an application preferred by the appellant seeking permission to withdraw the suit. It is stated in the I.A.No.2910 of 2009 in R.S.A.No.1316 of 2008 3 affidavit that the suit was filed without impleading Imbichi Nagan S/o. Unniyannan (learned counsel tells me that the said Imbichi Nagan is now no more) and that there was no challenge to the decision of ombudsman holding that the appellant is not entitled to get pension. The suit therefore suffered from formal defects like non impleadment of necessary parties and not seeking necessary reliefs and hence the application to withdraw the suit with liberty to file fresh suit. Learned counsel contended that it is a fit case where appellant may be permitted to withdraw the suit with liberty to file fresh suit. I have heard counsel for respondent No.1 as well. 3. Question whether pension was payable to the appellant or Imbichi Nagan S/o. Unniyannan has to be decided with the said Imbichi Nagan S/o. Unniyannan and if he is not alive, with his legal heirs being in the party array. Any adverse decision against Imbichi Nagan S/o. Unniyannan without him or his legal heirs on the party array would not bind them. Hence the suit suffered from basic defect like non impleadment of necessary party which is a formal defect as referred to in Order 23 Rule 1(3) of the Code of Civil Procedure. According to learned counsel, appellant was not a party in the proceeding before the Ombudsman and hence there was no necessity to challenge any order made by the Ombudsman. Having regard to the facts and circumstances of the case I am inclined to think that this is a case I.A.No.2910 of 2009 in R.S.A.No.1316 of 2008 4 where appellant could be permitted to withdraw the suit with liberty to file fresh suit subject to the law of limitation if any and at its exclusions or exceptions as may apply to the situation. Resultantly I.A.No.2910 of 2009 is allowed and appellant is granted permission to withdraw the suit with liberty to file fresh suit subject to the observations regarding limitation stated above. The second appeal is accordingly closed. THOMAS P JOSEPH, JUDGE Sbna/