IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 AS.No. 68 of 1995(C) -------------------- {OS.287/1987 OF THE PRINCIPAL SUB COURT, KOLLAM} .................... APPELLANT(S)/PLAINTIFF: ----------------------------------- WILLIAM MORRIES, S/O. GEORGE NICKOLAS, CHERUPUSHPALAYAM, SAKTHIKULANGARA, KOLLAM, REPRESENTED BY THE POWER OF ATTORNEY HOLDER JESSY MORRIES, CHERUPUSHPALAYAM, SAKTHIKULANGARA, KOLLAM. BY ADV. SRI.B.KRISHNAMANI SRI.S.P.ARAVINDAKSHAN PILLAI SRI.P.V.S.SUDHEER RESPONDENT(S)/DEFENDANTS: ------------------------------------------- 1. D.SUBASH CHANDRA BOSE, RESIDING AT BOSE BHAVAN, (THODIYIL VEEDU), MUNDAKKAL, KOLLAM. 2. LEENA BOSE OF DO. DO. R2 ADVS. SRI.PIRAPPANCODE V.SREEDARAN NAIR, SRI.PIRAPPANCODE V.SUDHEER & S.P.ARAVINDAKSHAN PILLAI THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- A.S.No.68 of 1995 --------------------------------------- Dated this the 11th day of June, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. This appeal is by the plaintiff. He sued D.Subhash Chandra Bose, alleging that he is entitled to money from that person on account of a transaction, which is pleaded in the plaint. That defendant did not appear, in spite of paper publication. Leena Bose filed I.A.No.629/87 seeking impleadment as additional 2nd defendant to contest the suit on the premise that she married D.Subhash Chandra Bose in January, 1984 and has interest in the property of that person. The court below, by order dated 19.8.1988, allowed that impleadment on the premise that Leena Bose could be a trustee of Subhash Chandra Bose. A.S.No.68 of 1995 :: 2 :: 2. The transaction pleaded by the plaintiff is one that commenced in the latter part of 1984. We notice this only to state that the quality of the claim that Leena Bose projected in her application for impleadment was only entitlement, if any, to protect her interest, for whatever be its worth, over the assets of Subhash Chandra Bose. Though the learned counsel appearing for Leena Bose now states that Subhash Chandra Bose is not heard and is to be presumed as dead, we are afraid that the court below could not have proceeded on any such presumption and proceeded under Section 108 of the Evidence Act in 1987, when I.A.No.629/87 was filed, or on 19.8.1988 when that application was allowed, because the case of Leena Bose was that Subhash Chandra Bose married her in January, 1984. Obviously, there was no interregnum of 7 years, which could be described as “the absence of Subhash Chandra Bose, to the knowledge of A.S.No.68 of 1995 :: 3 :: the best person viz., Leena Bose”. The plaintiff is the dominus litus. Leena Bose, in her application for impleadment, has not shown any interest in the subject matter of litigation, which is the alleged transaction between the plaintiff and Subhash Chandra Bose. Under such circumstances, the court below acted erroneously in law in allowing I.A.No.629/87 and bringing Leena Bose on record as the additional 2nd defendant, whom the plaintiff never invited for a contest in the suit. For that reason, we vacate the order dated 19.8.1988 in I.A.No.629/87 and dismiss that IA for impleadment. Resultantly, Leena Bose, who has been impleaded will not be a party in any further proceedings before the court below. 3. With the aforesaid, the written statement filed by Leena Bose and the entire evidence adduced before the court below will stand excluded from A.S.No.68 of 1995 :: 4 :: consideration and now the court below has to proceed from the stage at which Subhash Chandra Bose was set ex parte,as noticed from the B Diary. 4. We, accordingly, remand the case to the court below to proceed from the stage at which Subhash Chandra Bose was set ex parte and consider the suit in accordance with law, by proceeding ex parte against the defendant, when of course, he seeks to set aside the order setting him ex parte. We make it clear that we have not indicated either way, as to whether the plaintiff is eligible to an ex parte decree or not. We also make it clear that we have not touched upon any right of Leena Bose, to make claim, if any, on the property over which she has interest if proceeded against in execution of a decree, if any, that may be passed against Subhash Chandra Bose. In the light of the order of remand we make, we are inclined to take the view that the appellant A.S.No.68 of 1995 :: 5 :: would have been entitled to refund of the entire court fee paid, had he paid it. Since the appeal is filed as an indigent person, we direct that the court fee payable on this appeal will not be recovered from him. The plaintiff will appear before the court below on 26.7.2010. Transmit the entire lower court records to the court below at the earliest. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/ //true copy// P.S. to Judge.