IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 FAO.No. 249 of 2008() ----------------------------- AS.39/2002 of SUB COURT, THIRUVALLA OS.104/1995 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT (S): RESPONDENT NO.5/ADDL.DEFENDANT NO.5: --------------------------- M.R.UNNIKRISHNAN NAIR, S/O.NARAYANAN NAIR, SANDYALAYAM, AYIRAVON MURI, AYIRAVON VILLAGE KONNY, KOZHENCHERRY TALUK. BY ADVS.MR.K.RAMACHANDRAN SMT.M.P.MARY MR.S.SUBHASH CHAND MR.S.SREEDEV RESPONDENT(S): APPELLANTS 1TO 3& ADDL.APPELLANTS 4TO 6& R 1TO 4, -------------------------- PLAINTIFFS 1 TO 3 AND DEFENDANTS 1 TO 4. 1. K.T.VARGHESE, KIZHAKKEDATHU HOUSE, CHITTOOR ROAD, ERNAKULAM. 2. K.T.THOMAS, KIZHAKKEDATHU HOUSE, NOW RESIDING AT JYOTHI, 3OTH ROAD, T.P.S.III, BANDRA, BOMBAY 50. 3. K.T.ABRAHAM, KIZHAKKEDATHU HOUSE, NOW RESIDING AT ANNVILLA,3OTH ROAD, T.P.S.III, BANDRA, BOMBAY 50. * 4. MARYKUTTY VARGHESE, KIZHAKKEDATHU HOUSE, CHITTOOR ROAD, ERNAKULAM.(DIED) 5. ELIZABETH CHERIAN, KIZHAKKEDATHU HOUSE, CHITTOOR ROAD, ERNAKULAM. 6. K.V.THOMAS, KIZHAKKEDATHU HOUSE, CHITTOOR ROAD, ERNAKULAM. 7. K.T.KURIAN, KIZHAKKEDATHU HOUSE, KAVUMBHAGAM, THIRUVALLA. F.A.O. NO.249/2008 8. AMMINI GEORGE, C/O.KUNJAMMA, MYTHILI PESTON, SAGAR, CHEMBUR, BOMBAY 71. 9. KUNJAMMA ALEYAMMA MATHEW, MYTHILI PESTON, SAGAR, CHEMBUR, BOMBAY 71. 10. ANNAMMA VARGHESE, POOPPALLIL, CHINGAM, ALLEPPEY. *IT IS RECORDED THAT RESPONDENTS 5 AND 6 ARE LEGAL REPRESENTATIVES OF DECEASED 4TH RESPONDENT AS PERR ORDER DTD. 25.3.09 IN IA. 1132/09. R2 & R3 BY ADVS.MR.K.K.CHANDRAN PILLAI , MR.A.S.SAJUSH PAUL. R7 BY MR.G.UNNIKRISHNON THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO.4235/2008 IN FAO. 249/2008 DISMISSED 19/01/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... F.A.O.No.249 OF 2008 ............................................. Dated this the 19th day of January, 2010. J U D G M E N T This appeal is preferred against the order of remand passed by the learned Subordinate Judge, Thiruvalla in A.S.No.39/2002. The suit is one for partition and the trial court, on a consideration of the entire materials, held that the suit as framed is not maintainable and dismissed the same. On issue No.2, the court found that the suit is bad for non joinder of necessary parties also. In appeal, the learned appellate judge had given an opportunity to cure the defects of non joinder and had further directed to incorporate the prayer for setting aside the documents. With these directions, the matter has been remanded back to the trial court. 2. Heard the learned counsel for the appellant as well as respondents 2 and 3. The learned counsel for the appellant very strongly contends before me that the approach of the lower appellate court is totally erroneous for the reason that it had travelled beyond the Memorandum of Appeal. He has specifically invited my : 2 : F.A.O.No.249 OF 2008 attention to paras- 9,13 and 17 of the Memorandum of Appeal. In para -9 of the Memorandum of Appeal, what was canvassed is that the lower court ought not have held that the defendant's wife Mrs. Alice Kurian is a necessary party to the proceedings. In para-13 what was contended is that documents B18 and 19 are sham and void as far as the appellants are concerned. In para-17 it is averred that the court below did not afford sufficient opportunity to the appellants to adduce evidence. So, no where in the Memorandum of Appeal there is a plea to the effect that even if the suit is bad for non joinder of parties, an opportunity should be given or that the documents are liable to be set aside. So, it is in this backdrop one has to analyse the matter. When the appellants themselves do not have a case, I feel that the appellate court had travelled beyond the scope of appeal and granted them an opportunity. I am not expressing anything on the merit of the case for the reason that the matter requires consideration at the hands of the appellate court once again on all points which are placed before it. : 3 : F.A.O.No.249 OF 2008 3. Therefore the order of remand has become unnecessary and what is really required is to hear the appeal on the materials available and then decide whether the trial court has approached the matter in the correct perspective and take a decision. For this purpose, all the parties concerned are at liberty to argue all the points and let it be considered by the Subordinate Judge, Thiruvalla and the matter be disposed of in accordance with law. Therefore the F.A.O is allowed. The order of remand is set aside and the matter is directed to be restored by the learned Subordinate Judge and then hear and dispose of the matter in accordance with law. Being an old matter, the appellate court shall dispose of the matter as expeditiously as possible, at any rate, before the court closes for summer holidays. M.N. KRISHNAN, JUDGE cl : 4 : F.A.O.No.249 OF 2008