IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 WP(C).NO. 17627 OF 2010(O) ---------------------------------------- OS.111/2009 OF MUNSIFF COURT,CHENGANNUR .................... PETITIONER(S): ------------------------ A.ABRAHAM, S/O.A.ABRAHAM, AYOORKUZHIYIL HOUSE NO.195 4TH CROSS ROAD, PIPELINE ROAD, COCHIN UNIVERSITY , PO COCHIN-22 BY ADV. SRI.SAJU.S.A SRI.K.C.KIRAN RESPONDENT(S): -------------------------- 1. A.THOMAS, S/O.ABRAHAM' AYROOKUZHIYIL MADATHIL HOUSE PUTHENCAVU MURI, MULAKUZHA VILLAGE. 2. A.CHERIAN, AYIRUKUZHI MADATHIL PUTHENCAVU MURI, MULAKUZHA VILLAGE. 3. SUJATHA GEORGE, HOUSE NO. 7/309 MAVELIPURAM, HOUSING COLONY KAKKANAD PO, COCHIN 682 030. 4. DARLY ABRAHAM, C/O.RANI MATHEWS FLAT NO.9, ANUGRAHA APARTMENTS, PALLISSERY ROAD PALARIVATTOM, COCHIN 682 025. 5. MANI THOMAS, E/NO.4 SEA BROOK APARTMENTS, 4TH SEA WART ROAD, VALMIKY NAGAR THIRUVADIYAR, CHENNAI 600 041. 6. A.THOMAS, A701, THIRUVIZHA APARTMENTS PLOT NO.37, SECTOR 10. DWARAKA, NEW DELHI 110 045. 7. SOSAMMA THAMPI, NO.7, 6TH STREET DR.THRIMURTHI NAGAR, NUNGAMBAKOM, MADRAS -34 8. SOBHANA THANMPI, NO.7,6TH STREET DR.THRIMURTHI NAGAR, NUNGAMBAKOM,MADRAS-34 9. NIMY THAMPI, NO.7,6TH STREET DR.THRIMURTHI NAGAR, NUNGAMBAKOM,MADRAS-34 10. ABRAHAM THAMPI, NO.7,6TH STREET DR.THRIMURTHI NAGAR, NUNGAMBAKOM,MADRAS-34 11. PRAMI THAMPI, NO.7,6TH STREET DR.THRIMURTHI NAGAR, NUNGAMBAKOM,MADRAS-34 12. ELIZABETH MATHEW GLORIS MESTON PARIJATHAM ROAD, CHANGAMPUZHA NAGAR COCHIN-33 13. SUSAN GEORGE, P.O.BOX 53030 DUBAI, UAE. 14. ELIZABETH SAMUEL, KADUVETTAR MESTON GARDEN,PARIJATHAM ROAD, CHANGAMPUZHA NAGAR COCHIN-33 15. ANN THOMAS K.P., 18/287 EASWARAN THAMPI NAGAR, KALLAYAM PO, THIRUVANANTHAPURAM 695 043 16. MERIN MATHEW, GLORIS MESTON PARIJATHAM CHANGAMPUZHA NAGAR, COCHIN-33 17. A.CHERIYAN, 4/A REGENCY HEIGHT 3/2 CLEAVELAND ROAD, GEAZER TOWN, BANGALORE-5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.17627 of 2010 ==================================== Dated this the 8th day of June, 2010 J U D G M E N T Petitioner is defendant No.1 in O.S. No.111 of 2009 of the court of learned Munsiff, Chengannur. That is a suit for injunction filed by respondent No.1 against petitioner and respondent Nos.2 to 17. Learned Munsiff directed respondent No.1/plaintiff to take steps as against defendant Nos.8 and 11. Respondent No.1 did not comply with that order and thereon as per Ext.P2, order learned Munsiff dismissed the suit as against defendant Nos.8 and 11. That order is under challenge in this Writ Petition. Learned Senior Advocate appearing for petitioner contended that though partibility of the property is disputed by petitioner, as the suit is dismissed as against defendant Nos.8 and 11 the suit is not maintainable. According to the learned Senior Advocate if the suit is not maintainable for the said reason there is no reason why petitioner should undergo the cumbersome procedure of trial and wait for a dismissal of the suit after a few years. Having regard to the circumstances stated particularly the contentions raised by the learned Senior Advocate that the property is not paritble among W.P(C) No.17627 of 2010 -: 2 :- petitioner and respondent No.1 there is no reason why petitioner should challenge the order dismissing the suit against defendant Nos.8 and 11 and seek to set aside the same. If petitioner has a contention that in the absence of defendant Nos.8 and 11 on the party array the suit as framed by respondent No.1 is not maintainable it is open to the petitioner to request learned Munsiff to raise an issue regarding maintainability of the suit and if provisions of Order XIV Rule 2 of the Code of Civil Procedure permitted to hear the issue regarding maintainability of the suit on account of absence of defendant Nos.8 and 11 in the array of parties as a preliminary issue and invite a decision on that issue. Without prejudice to that right of petitioner, Writ Petition is closed. THOMAS P. JOSEPH, JUDGE. vsv