IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 OP(C).No. 780 of 2011(O) ------------------------------------- I.A.4887/2010 IN O.S.124/2005 OF ADDITIONAL SUB COURT, KOLLAM. I.A. 4724/2010 IN OS.124/2005 OF ADDITIONAL SUB COURT, KOLLAM. .................... PETITIONERS/PLAINTIFFS 4 AND 5 ---------------------------------------------------- 1. KRISHNA KUMAR, AGED 52 FROM THOPPIL VEEDU, NOW AT TATA TEA ESTATE BUNGLOW, MUNNAR. 2. SUSEELA RANI, AGED 48 YEARS, FROM THOPPIL VEEDU, NOW RESIDING AT SAHODARAN BUILDING TATA TEA ESTATE, COCHIN-682 003. BOTH PETITIONERS ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER SRI.K. SATHEESCHANDRAN UNNITHAN, ERATHENNOOR VEEDU, CHALAKKAL DESOM, KILIMANOOR, CHIRAYANKIZHU TALUK, PIN-695 602. BY ADV. SRI.P.B.SAHASRANAMAN, SRI.T.S.HARIKUMAR, SRI.K.JAGADEESH. RESPONDENTS/DEFENDANTS AND PLAINTIFFS 1, 2, 3, 6 AND 7 --------------------------------------------------------------------------------------------- 1. SOMANADHAN NAIR, SON OF PARAMESWARAN PILLAI, THANNAVEETTIL GOPI VILASOM, OLAYIL CHERRY, KOLLAM-691 009. 2. KAMALAMMA, AGED 55 YEARS, THANNAVEETTIL, OLAYIL CHERRY, KOLLAM-691 009. 3. SAIKUMAR, AGED 32 YEARS, THANNAVEETTIL, OLAYIL CHERRY, KOLLAM-691 009. 4. SAILEKSHMI, AGED 27 YEARS, THANNAVEETTIL, OLAYIL CHERRY, KOLLAM-691 009. 5. P.K. ASHOKAN, AGED 49 YEARS, SON OF KUTTAN, THANNAVEETTIL, OLAYIL CHERRY, KOLLAM-691 009. OP(C).No. 780 of 2011(O) 6. LATHA ASHOKAN, WIFE OF ASHOKAN, THANNAVEEDU, OLAYIL CHERRY, KOLLAM-691 009. 7. LEELA BAI, KAMALALAYAM, BHARANIKAVU WARD, PUNALUR-691 305. 8. PREMA, WIFE OF KAMALASANAN, KAMALALAYAM, BHARANIKKAVU WARD, PUNALUR-691 305. 9. PRIYA SHAJI, DAUGHTER OF KAMALASANAN, KAMALALAYAM, BHARANIKKAVU WARD, PUNALUR-691 305. 10. K.L. SHYLAJA, LALITHA BHAVAN, KUTTIYIL MURUNTHAL CHERRY, THRIKKADAVOOR, KOLLAM-691 305. 11. OMANA AMMA, WIFE OF VASU PILLAI, VEETTUVILAYIL CHERIYIL THANNAVILA, WEST VILLAGE KOLLAM-691 009. 12. RAJALEKSHMI JYOTHI, DAUGHTER OF VASU PILLAI, THANNAVEETUVILAYIL, OLAYIL CHERRY, KOLLAM-691 009. 13. BHAKTHAVALSALAN, SON OF VASU PILLAI, THANNAVEETUVILAYIL, OLAYIL CHERRY, KOLLAM-691 009. 14. SOORYAKUMARI, DAUGHTER OF VASU PILLAI, THANNAVEETTUVILAYIL, OLAYIL CHERRY, KOLLAM-691 009. 15. HARI NARAYANAN, SON OF VASU PILLAI, THANNAVEETTUVILAYIL, OLAYIL CHERRY, KOLLAM-691 009. 16. KUNJUNNI PILLAI SIVASANKARA PILLAI, AGED 75 YEARS, THANNA VEEDU, KULANGARAZHIKAM NOW RESIDING AT MALAYSIA, NO.10, JALAN, 11/10, PATALIG JAYA, SELANGOOR, 46200, MALAYSIA, REPRESENTED BY DEVIKA RANI, D/O.MEENAKSHI AMMA, T.C.29/53, M.K.K. NAIR ROD, NEAR KARTHIKA THEATRE, PETTAH, THIRUVANANTHAPURAM-695 024. 17. PARVATHY AMMA, ANANDAVALLY AMMA, AGED 76 YEARS, THANNA VEEDU, NOW AT E40-TAMEN, SENTOSA, BIKIT-BARU-75150, MELKA, MALAYSIA, DEVIKA RANI, D/O. MEENAKSHI AMMA, T.C.NO.29/53, M.K.K. NAIR ROAD NEAR KARTHIKA THEATRE, PETTAH, THIRUVANANTHAPURAM-695 024. OP(C).No. 780 of 2011(O) 18. MEENAKSHI AMMA, W/O. KESAVAN NAIR, "DEVI", T.C. NO.29/53, M.K.K. NAIR ROAD, NEAR KARTHIKA THEATRE, PETTAH, THIRUVANANTHAPURAM, PIN-695 024. 19. DEVIKA RANI, D/O. MEENAKSHI AMMA, T.C.NO. 29/53, M.K.K.NAIR ROAD, NEAR KARTHIKA THEATRE, PETTAH, THIRUVANANTHAPURAM-695 024. 20. VIMALAKUTTY, D/O. VELU PILLAI, L.I.G. HOUSE NO.833, PANAMPALLI NAGAR, COCHIN-682 036. R1 BY ADV. SRI.B.ASHOK SHENOY, SMT.LAKSHMI B.SHENOY. R5 & R6 BY ADV. SRI.S.SANTHOSH KUMAR, SMT.P.LISSY JOSE. R7 & R9 BY ADV. SMT.K.G.BINDU, SMT.T.S.MAYA (THIYADIL). R10 BY ADV. SRI.K.SASIKUMAR. R11 & R15 BY ADV. SRI.T.A.SHAJI SRI.P.R.BANERJI R19 BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE, ADV. SRI.ALAN PAPALI, SRI.GILBERT GEORGE CORREYA, SRI.SOJAN MICHEAL. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 780 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE AMENDED PLAINT IN O.S. NO.124/2005 BEFORE THE SUB COURT, KOLLAM, DATED AUGUST 2010. EXT.P2 COPY OF THE APPLICATION FILED BY THE PETITIONERS AS I.A. NO.4724/2010 IN O.S. NO.124/2005 OF THE SUB COURT, KOLLAM, DATED 22ND NOVEMBER, 2010. EXT.P3 COPY OF THE ORDER IN I.A. NO.4724/2010 IN O.S. NO.124/2005 OF THE SUB COURT, KOLLAM, DATED 30TH NOVEMBER, 2010. EXT.P4 COPY OF THE REVIEW PETITION IN I.A. NO.4870/2010 IN O.S. NO.124/2005 OF THE SUB COURT, KOLLAM DATED 2ND DECEMBER 2010. EXT.P5 COPY OF THE ORDER IN I.A. NO.4887/2010 IN O.S. NO.124/2005 OF THE SUB COURT, KOLLAM DATED 18TH JANUARY 2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.780 of 2011 -------------------------------------- Dated this the 12th day of December, 2011. JUDGMENT Exts.P3 and P5, orders in O.S.No.124 of 2005 of the court of learned Additional Sub Judge, Kollam are under challenge in this proceeding at the instance of petitioners/plaintiffs 4 and 5. 2. The suit is to set aside a partition deed said to be executed by defendants 1 and 2 and another brother of theirs, Raghavan Pillai and the assignment deed following that executed in favour of defendants 6 to 8 and for other reliefs. According to the plaintiffs, the suit property is a temple property of the tarward which was kept as such in partition as per deed No.200 of 1113 ME. While so, defendants 1 and 2 and Raghavan Pillai are said to have executed a partition deed concerning the said property following which assignment deed was executed in favour of the defendants 6 to 8. Though plaintiffs had prayed for setting aside the above said partition deed and the assignment deed which followed, there was no prayer for recovery of possession from defendants 6 to 8 who are not members of the tarwad. Noticing that defect Ext.P2, application was preferred for amendment of plaint to incorporate a prayer for recovery of possession as well. It is submitted by the learned counsel for additional defendants 9 to 11 (legal representatives of deceased 6th defendant) that those defendants had filed objection to Ext.P2, application on various grounds. That OP(C) No.780/2011 2 objection prevailed with learned Sub Judge who dismissed Ext.P2, application by Ext.P3, order. Thereon, impleading all the plaintiffs as petitioners, Ext.P4, application for review was filed. That application was dismissed by the learned Sub Judge as the person who claimed to represent plaintiffs 1 and 2 as power of attorney had no power to do so since plaintiffs 1 and 2 in the meantime, had executed a power of attorney in the name of the 6th plaintiff. Ext.P5 is the order on Ext.P4, application. Thus challenge to Exts.P3 and P5, orders. 3. It is contended by learned counsel for petitioners/plaintiffs 4 and 5 that though petitioners had filed I.A.No.5044 of 2010 to declare that 6th plaintiff is the power of attorney of plaintiffs 1 and 2, that application has not been disposed of. 4. Learned counsel for contesting defendants contend that there is no merit in Ext.P2 or Ext.P4 since in Ext.P2, application all the plaintiffs are not made parties and in Ext.P4, application, plaintiffs 1 and 2 are represented by a person who did not have the power in view of plaintiffs 1 and 2 executing a power of attorney in favour of the 6th plaintiff in February, 2007. 5. When the application for amendment of the plaint is preferred all the plaintiffs are to be parties to such application. Some of the plaintiffs alone cannot request to amend the plaint. Therefore dismissal of Ext.P2, application is OP(C) No.780/2011 3 justified. So far as Ext.P4, application for review is concerned, as things stands now it appears that plaintiffs 1 and 2 though represented by Shri K.Satheesh Chandran Unnithan as power of attorney, he did not had the power since plaintiffs 1 and 2 had executed a power of attorney in favour of the 6th plaintiff as averred in I.A.No.5044 of 2010. If that be so, Ext.P4, application was also defective. Hence there is no reason to interfere with Exts.P3 and P5, orders on Exts.P2 and P4, applications. 6. But that need not preclude plaintiffs from filing fresh application for amendment of the plaint since the request for amendment has not been negatived by the learned Sub Judge on merit. Dismissal of Exts.P2 and P4, applications are for the reason that the applications were not proper which I said, there is no reason to interfere. Hence dismissal of Exts.P2 and P4, applications by Exts.P3 and P5, orders will not stand in the way of plaintiffs filing proper application for amendment of plaint. Resultantly this Original Petition is disposed of as follows: i. While no interference is required with Exts.P3 and P5, orders it is made clear that the said orders will not stand in the way of plaintiffs filing proper application for amendment of plaint either directly or by persons who are duly authorised to represent them. OP(C) No.780/2011 4 ii. If any such application is preferred and it is found to be in order, learned Sub Judge shall decide that application after hearing the objection of the defendants as well, on its merit. THOMAS P.JOSEPH, Judge. cks