IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 CRP.No. 452 of 2008() --------------------- AGAINST THE ORDER DATED 13/03/2008 IN IA 468/08 IN OS.436/2006 of MUNSIFF COURT, KARUNAGAPPALLY .................... REVN. PETITIONER: PETITIONERS/RESPONDENTS/DEFENDANTS ---------------------- 1. PADMAVATHY AMMA, KOCHUVILA THEKKETHIL THODIYOOR, KARUNAGAPPALLY. 2. AJITHA, -DO- -DO- 3. SUDHAKARAN, VALLATTOOR PADEETHATHIL, PULIYOORVANCHIKIZHAKKUM MURI, -DO- -DO- 4. BALACHANDRAN ALIAS THAMPI, PADANILATHU, -DO- -DO- 5. SUNILKUMAR, KALAKKODU, -DO- -DO- 6. K.R.SAJEEVAN, VENGARA VADAKKADATHU, THODIYOOR, -DO- -DO- 7. ISMAIL, KOCHUVILAKIZHAKKATHIL, -DO- -DO- 8. RAMESAN, AKIL BHAVANAM, VENGARA MURI, -DO- -DO- BY ADV. SRI.J.OM PRAKASH RESPONDENTS: PETITIONER/FIRST PLAINTIFF --------------------------------------- M.M.GEORGE, S/O.MATHUNNI, MULAKKALVILAYIL, THODIYOOR P.O., KARUNAGAPPALLY. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.No.452 of 2008 ------------------------------- Dated this the 16th June, 2008. O R D E R Petitioners are the defendants in O.S.No.436 of 2006, on the file of Munsiff Court, Karunagappally. The suit is one for injunction. When the evidence was partly recorded, respondent filed I.A.No.468/2008 under sub-rule 3 of Rule 1 of Order of XXI of Code of Civil Procedure to withdraw the suit with liberty to file a fresh suit. It was opposed by the petitioners. Under impugned order dated 13.3.2008, learned Munsiff allowed the application on payment of cost of Rs.100/= each to the eight petitioners. It is challenged in this petition filed under Section 115 of the Code of Civil Procedure. 2. The learned counsel appearing for petitioners was heard. 3. The argument of the learned counsel appearing for petitioners relying on the decision of a learned Single Judge of the High Court of Orissa in Khatuna and another v. Ramsewak Kashinath and another (AIR 1986 ORISSA 1) is that non joinder of necessary CRP No.452/2008 2 parties is not a formal defect and therefore for the failure to implead necessary parties, permission cannot be granted under Rule 1 of Order XXIII of Code of Civil Procedure, to file a fresh suit. 4. On hearing the learned counsel, I do not find any illegality or irregularity warranting interference in the impugned order. It cannot be said that in all cases, non-joinder of parties cannot be a formal defect. A suit for injunction, by a person who is not the owner, but person in possession of the plaint schedule property, is maintainable. In such a suit, owner of the property is definitely a proper party and in certain cases, even a necessary party. But even without the owner, a person who is managing the property on behalf of the owner, and is in possession of the property, is definitely entitled to sue third party, apprehending trespass by him. If in that suit, defendant raises a contention that real owner of the property is a necessary party, it cannot be said that the owner is not a formal party. If the defendant disputes the right of the plaintiff to manage the property, it could be said that owner is even a necessary party. Therefore, question whether non joinder of a party is a formal defect or a fatal defect depends on the facts of each case. Even in a suit for injunction restraining defendants from trespassing into the plaint CRP No.452/2008 3 property, it cannot be said that failure to implead the true owner is not a formal defect. In such circumstances, I find no illegality or irregularity warranting interference in the impugned order. Revision petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.