IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 1363 of 2009(K) ------------------- AGAINST THE ORDER IN IA.1746/2008 IN OS.380/2007 of I ADDL.MUNSIFF COURT,NEYYATTINKARA .................... PETITIONER(S): --------------- 1. MARIAMMA POULOSE,W/O.THOMAS PAULOSE 83 YEARS, THEKKATHIL VEEDU, MOONGODU, THEKKUPARA, AMBOORI VILLAGE, NEYYATTINKARA TALUK. 2. ALIS SAMMUEL, D/O.THOMAS PAULOSE, 60 YEARS, THEKKATHIL VEEDU, MOONGODU. THEKKUPARA, AMBOORI VILLAGE, NEYYATTINKARA TALUK. 3. THOMAS.P., S/O.THOMAS PAULOSE, 52 YEARS, DO.DO. 4. PHILIPPOSE.P., S/O.THOMAS PAULOSE, 44 YEARS, DO.DO. 5. MATHEW.P., S/O.THOMAS PAULOSE, 42 YEARS, DO.DO. (LEGAL HEIRS OF THE ORIGINAL PLAINTIFF, THOMAS POULOSE) BY ADV. SRI.M.RAMACHANDRAN NAIR SRI.ABISHEK R.V RESPONDENT(S): --------------- 1. JOHNSON.B., 42 YEARS, MARY NILAYAM, HOUSE NO.6, RESIDENCY NAGAR, POLACHIRA VADAKKATHIL VEEDU KOLLAM, KOLLAM PO., POWER OF ATTORNEY HOLDER OF K.MARYKUTTY BENZELY (PETITIONER IN THE IMPLADING PETITION) 2. THAMPI RAJ, 45 YEARS, ADV.ILLUVILA VEEDU, KALIYOOR VILLAGE, K.K.DISTRICT, NOW RESIDING AT.NO.15, JAI NAGAR, SOUTH KUMARAPURAM, MEDICAL COLLEGE PO., THIRUVANANTHAPURAM(1ST DEFT). WP(C) NO.1363/2009 2 3. FELSITTA, 42 YEARS, W/O.THAMPI RAJ, RESIDING AT LLUVIA VEEDU, KALIYOOR VILLAGE K.K.DISTRICT, NOW RESIDING AT.15, JAI NAGAR, SOUTH KUMARAPURAM, MEDICAL COLLEGE PO THIRUVANANTHAPURAM. ADV. SRI.R.T.PRADEEP FOR R1 SRI.V.VIJULAL FOR R1 SRI.GOPAKUMAR R.THALIYAL FOR R2 & 3 SRI.N.P.PRAJEESH FOR R2 & 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.1363/2009 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 PHOTOCOPY OF PLAINT IN OS 380/2007 OF MUNSIFF'S COURT, NEYYATTINKARA EXT.P2 PHOTOCOPY OF THE IMPLEADING PETITION FILED BY JOHNSON.B EXT.P3 PHOTOCOPY OF THE OBJECTION FILED BY THOMAS POULOSE AGAINST THE IMPLEADING PETITION EXT.P4 PHOTOCOPY OF THE OBJECTION FILED BY THAMPI RAJ AGAINST THE IMPLEADING PETITION EXT.P5 PHOTOCOPY OF THE ORDER IN IA NO.1746/2008 IN OS 309/2007 OF 1ST ADDL.MUNSIFF COURT, NEYYATTINKARA EXT.P6 PHOTOCOPY OF DEATH CERTIFICATE DATED 8.8.2008 ISSUED BY THIRUVANANTHAPURAM CORPORATION. //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.1363 of 2009 -------------------------------------- Dated this the 28th day of June, 2010. JUDGMENT This Writ Petition is filed by the legal representatives of original plaintiff challenging Ext.P5, order allowing impleadment of respondent No.1. Original plaintiff sued for a decree for prohibitory injunction to restrain respondent Nos.2 and 3/original defendant Nos.1 and 2 trespassing into the suit property. Plaint A schedule is seven and odd acres of rubber plantation. According to the original plaintiff plaint B schedule is 2.75 acres which forms part of plaint A schedule. It is the claim of original plaintiff that plaint B schedule was got assignment by one Antony Jalis under provisions of the Kerala Land Assignment Act. The said Antony Jalis had entrusted the property to the original plaintiff for management. Antony Jalis expired in the year 1978 but the original plaintiff continued to be in possession and enjoyment of the suit property. While so respondent Nos.2 and 3 attempted to trespass into the suit property claiming that Joseph Jalis @ Antony Jalis has executed a Will bequeathing the property in their favour and they are in possession and enjoyment of the said property. While so respondent No.1 claiming to be the power of attorney holder of Marykutty Benzely, stated to be one of the legal heirs of Antony Jalis filed I.A.No.5012 of 2007 to implead him as additional defendant No.3 on the strength of the power of attorney allegedly executed by the said Marykutty Benzely. It would appear that the said petition was dismissed as not pressed, according to the learned counsel for WP(C) No.1363/2009 2 respondent No.1 on the court below pointing out that the application is defective. That was followed by I.A.No. 1746 of 2008 seeking impleadment of respondent No.1 in his capacity as power of attorney holder of the said Marykutty Benzely. In the meantime original plaintiff died and his legal representatives were impleaded. I.A.No.1746 of 2008 was opposed by the petitioners as well as respondent Nos.2 and 3, on separate grounds. Petitioners contended that respondent No.1 is not entitled to seek impleadment under the cover of power of attorney said to be executed by Marykutty Benzeli and that he had no right, interest or possession in the suit property. Respondent Nos.2 and 3 contended that Antony Jalis @ Joseph Jalis died issueless after executing Will in favor of respondent Nos.2 and 3. Learned Munsiff vide Ext.P5, order dated 24.06.2008 has allowed the application which is challenged by petitioners who are legal representatives of original plaintiff. Learned counsel for petitioners contended that the application is defective in that person sought to be impleaded is not Marykutty Benzeli but her alleged power of attorney holder who, even if it is assumed that there is such a power of attorney is not entitled to come on record on his own. According to the learned counsel, person who should seek impleadment is Marykutty Benzeli, may be represented by her power of attorney holder. It is contended that I.A.No.5012 of 2007 having been dismissed as withdrawn, respondent No.1 was not entitled to file a fresh application as I.A.No.1746 of 2008. Learned Munsiff ought to have dismissed the application on the above ground. Learned counsel for respondent Nos.2 and 3 though supported contention of the petitioners that learned Munsiff ought to WP(C) No.1363/2009 3 have dismissed I.A.No.1746 of 2008, supplemented that since Antony Jalis @ Joseph Jalis died issueless respondent No.1 has no right to seek impleadment even on behalf of Marykutty Benzeli. 2. So far as maintainability of I.A.No.1746 of 2008 on account of dismissal of I.A.No.5012 of 2007 is concerned, I must bear in mind that I.A.No.5012 of 2007 was not dismissed on merit but, was not pressed, as learned counsel for respondent No.1 put it, since learned Munsiff observed that the said application is defective. In so far as the dismissal of I.A.No.5012 of 2007 was not on merit principle of res judicata cannot apply and as such that dismissal does not bar I.A.No.1746 of 2008. 3. On the next question whether as power of attorney holder respondent No.1 could have come on record as additional defendant No.3 is concerned, there is some merit in the contention raised by learned counsel for petitioners but, largely that contention relates to the form of application and no its substance. It is seen from I.A.No.1746 of 2008 that respondent No.1 is described him as Johnson, B., …………………, power of attorney holder of K.Marykutty Benzeli. The proper cause title for the application would have been to describe the petitioner in I.A.No.1746 of 2008 as “K.Marykutty Benzeli, ……… ……….., represented by power of attorney holder, Johnson…………..” As I stated the defect is only in the form and not the substance since respondent No.1 has got impleaded as power of attorney holder of K. Marykutty Benzeli and the application was preferred on her behalf. The defect in the cause title is only WP(C) No.1363/2009 4 something which can be corrected by appropriate amendment in that regard. 4. Then the next argument is that without adjudicating upon the right of Marykutty Benzeli over the property her power of attorney holder should not have been allowed to come on record. So far the application for impleadment is concerned, in the affidavit in support of that application it is stated that Marykutty Benzeli is one of the two surviving legal heirs of Antony Jalis who according to respondent No.1 died intestate. That averment is sufficient for the purpose of impleadment. The disputed question as to the legal heirship or right to represent the estate of deceased Antony Jalis need not be enquired into while considering I.A.No.1746 of 2008 as that is not an application to which provisions of Order XXII Rule 5 of the Code applied. I make it clear that if the claim of power of attorney holder as to legal heirship or right to represent the estate of Antony Jalis is disputed by other contestants in the suit, that is a matter which the court concerned has to investigate into at the time of trial. 5. So far as the contention raised by the respondent Nos.2 and 3 is concerned, there is also challenge to the entitlement of power of attorney holder to come on record since respondent Nos.2 and 3 rely on a Will allegedly executed by Antony Jalis @ Joseph Jalis. Respondent Nos.2 and 3 maintained that the said persons are one and the same and he executed the Will in favour of respondent Nos. 2 and 3. They contend that Antony Jalis @ Joseph Jalis died issueless. Those matters are required to be enquired into by the court below at the time of trial. Having regard to the nature of contentions raised by respondent No.1 on behalf of Marykutty Benzeli, I am persuaded to think that WP(C) No.1363/2009 5 she is a necessary party to the suit since her presence is necessary for adjudication of the controversy. I do not find reason to interfere with the impugned order. Writ Petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks