IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 WP(C).No. 2977 of 2009(D) ------------------------- OS.66/1994 of I ADDL.MUNSIFF COURT, TRIVANDRUM .................... PETITIONERS: --------------- 1. VICTORIA AUGUSTINE, T.C. 53/902, KOCHUVELI, KARIKKAKOM, THIRUVANANTHAPURAM. 2. AUGUSTINE, T.C. 53/902, KOCHUVELI, KARIKKAKOM, THIRUVANANTHAPURAM. BY ADV. MR.R.S.KALKURA MR.HARISH GOPINATH MR.V.VINAY MENON MR.M.AJAY (IRUMPANAM) RESPONDENTS: --------------- 1. LILLY NETTOR, T.C. 33/901, K.V. HOUSE, KOCHUVELI, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM. 2. MARRIAM NETTO, T.C. 53/902, KOCHUVELI, KARIKKAKOM, THIRUVANANTHAPURAM. 3. ZAVIER PERAR,T.C. 53/902, KOCHUVELI, KARIKKAKOM, THIRUVANANTHAPURAM. ADV. MR.G.S.REGHUNATH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2977 of 2009(D) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: PLAINT IN O.S.NO.66/1994 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF COURT, TRIVANDRUM. EXT.P2: WRITTEN STATEMENT IN O.S.NO.66/1994 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF COURT, TRIVANDRUM. EXT.P3: JUDGMENT IN A.S.NO.21/2001 DTD.25.5.2006 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT COURT, TRIVANDRUM. EXT.P4: JUDGMENT DTD.28.7.2007 IN O.S.NO.66/1994 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF COURT, TRIVANDRUM. EXT.P5: APPLICATION FOR IMPLEADMENT IN O.S.NO.6/1994 DTD. 16.12.2008. EXT.P6: OBJECTION IN IMPLEADING PETITIONIN O.S.NO.66/1994 DTD. 6.1.2009. EXT.P7: ORDER IN I.A.NO.10750/2008 IN O.S.NO.6/1994 DTD. 12.1.2008 OF THE 1ST ADDITIONAL MUNSIFF COURT, TRIVANDRUM. RESPONDENTS EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.2977 of 2009 - D --------------------------------- Dated this the 7th day of January, 2010 J U D G M E N T Writ petition is filed seeking the following relief: “To issue a writ of certiorari or any other appropriate writ, order or direction of the nature of certiorari quashing Ext.P7 order dated 12.1.2008 in I.A.No.10750/2008 and allow this writ petition.” 2. Petitioners are the plaintiffs in O.S.No.66 of 1994 on the file of the 1st Additional Munsiff Court, Thiruvananthapuram. Suit is one for putting up boundary and the respondents are the defendants. After trial the suit was dismissed and the appeal preferred by the plaintiffs setting aside the dismissal the case was remitted for fresh consideration. After such remission the suit was decreed exparte accepting the report and plan prepared by the advocate commissioner deputed to identify the plaint property and also fixation of its boundaries. The defendant moved an application for setting aside the exparte decree and it was allowed. After evidence was over the petitioners moved an application for impleading one more defendant, wife of the third W.P.(C).No.2977 of 2009 - D 2 defendant. That application was disallowed by the learned Munsiff vide Ext.P7 order. Challenge in the writ petition is against Ext.P7 order. 3. I heard the counsel on both sides. 4. In his written statement the second defendant, who is the second respondent in the writ petition, had contended that on the east and south of the plaint property the first and second defendants and also the wife of the third defendant have properties and the suit is bad for nonimpleadment of the wife of the third defendant. In spite of that contention, it is seen, no issue was raised as to nonjoinder of necessary parties in the suit. In the appeal preferred against the dismissal of the suit after a full fledged trial earlier also, it seems, the question of nonjoinder was not pressed upon. In such circumstances where third defendant is already resisting the suit claim filing a written statement whether the nonimpleadment of his wife as a defendant is a matter to be taken into consideration by the court with reference to all the materials tendered in the case. Dismissal of the impleading petition by Ext.P7 order by the court W.P.(C).No.2977 of 2009 - D 3 may not be decisive in considering that question. But, at that stage, i.e., nearly a decade after the institution of the suit, application moved by the plaintiff for impleadment of an additional defendant in the suit could not have been entertained and the order passed by the learned Munsiff does not call for any interference. But I make it clear whether such nonimpleadment of the wife of third defendant is a material circumstance affecting the right of the plaintiff to claim the decree in the suit against the defendants has to be considered irrespective of the observations made in Ext.P7 order. Subject to the above observations, the writ petition is disposed of. S.S.SATHEESACHANDRAN, JUDGE. bkn/-