IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 WP(C).No. 5839 of 2009(O) ------------------------- AGAINST THE ORDER IN IA.3322/2008 IN OS.855/2007 of II ADDL.M.C.,NEYYATTINKARA .................... PETITIONER(S): ------------------------- STANLY, S/O. ESAKK NADAR,GEERIN LANT PUTHUVAIKONAM,DHANUVACHAPURAM DESOM,KOLLAYIL VILLLAGE,THIRUVANANTHAPURAM DISTRICT,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER DAVID, S/O.ARULANANDAM, AGED 64 YEARS, RESIDING AT JALAJA BHAVAN, ANCHUMARAMKALA,VELLARADA VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADVS. MR.G.P.SHINOD, MR.RAM MOHAN.G., MR.MANU V. RESPONDENT(S): --------------------------- * 1. THANKAPPAN, S/O.JOHNSON, S.B.BHAVAN, KAVUVILA, DHANUVACHAPURAM, KOLLAYIL VILLAGE, THIRUVANANTHAPURAM DISTRICT.(DELETED) 2. SATHYANESAN, S/O. JOHNSON, S.B.STORE, DHANUVACHAPURAM,KOLLAYIL VILLAGE, THIRUVANANTHAPURAM DISTRICT. 3. BABU,S/O. JOHNSON, KAVUVILA PUTHEN VEEDU, KOLLAYIL VILLAGE, DHANUVACHAPURAM, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. * R1 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 15/07/2009 IN I.A.NO.8541/09. R2 & R3 BY ADV. MR.G.SUDHEER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.5839/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.855/2007 ON THE FILES OF THE ADDITIONAL MUNSIFF'S COURT II, NEYYATTINKARA. P2: COPY OF THE WRITTEN STATEMENT IN O.S.NO.855/2007 ON THE FILES OF THE ADDITIONAL MUNSIFF'S COURT II, NEYYATTINKARA. P3: COPY OF THE APPLICATION IN I.A.3322/2008 IN O.S.NO.855/2007 ON THE FILES OF THE ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA. P4: COPY OF THE OBJECTION IN I.A.NO.3322/2008 IN O.S.NO.855/2007 ON THE FILES OF THE ADDITIONAL MUNSIFF'S COURT II, NEYYATTINKARA. P5: COPY OF THE ORDER DTD. 18/11/2008 IN I.A.NO.3322/2008 IN O.S.NO. 855/2007 OF THE ADDITIONAL MUNSIFF'S COURT II, NEYYATTINKARA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.5839 OF 2009 -------------------------- Dated this the 23rd day of July 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Set aside Ext.P5 order and allow Ext.P3 application. ii) Pass such other reliefs as deem just and proper in the nature and circumstances of the case. 2. Petitioner is the plaintiff in O.S 855/2007 on the file of the Additional Munsiff - II, Neyyattinkara, and the respondents are the two defendants and another, who was sought to be impleaded as a co-defendant in the suit. W.P.(C).No.5839 OF 2009 Page numbers Suit is one for a decree of perpetual prohibitory injunction. During the pendency of the suit the property owned by the first defendant managed by the second defendant was assigned in favour of the third respondent in the petition. The case of the petitioner in brief is that the property of the first defendant is situate on the eastern side of his property, which is described as 'C' schedule in the plaint and there has been attempt to annex portions of his property by the first and second defendants. During the pendency of the suit the first defendant assigned the property in favour of the third respondent. Petitioner thereupon moved an application under Order 1 Rule 10(2) of the Code of Civil Procedure to implead the third respondent as an additional defendant in the suit so as to seek the same relief of injunction sought for in the suit against him also. Notice being given, the third respondent appeared and filed objections to W.P.(C).No.5839 OF 2009 Page numbers the application. The learned Munsiff after hearing both sides dismissed the application. Ext.P5 is the copy of that order. Impeaching the propriety and correctness of that order, petitioner has filed this writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The learned counsel for the petitioner submitted that the impleadment of the third respondent as a co-defendant in the suit is necessary for a proper and effective adjudication of the disputes involved in the suit. On the other hand the learned counsel for the third respondent contended that no cause of action is made against him even in the affidavit in support of the petition filed for his impleadment as a co-defendant and further he has also disputed the affidavit sworn to by the deponent / the W.P.(C).No.5839 OF 2009 Page numbers plaintiff contending that long before the plaintiff had left the country. After having heard the counsel on both sides at length and taking note of the facts and circumstances presented wherein it is disclosed that after purchase of the property from the first defendant the third respondent has already instituted a suit against the petitioner herein for putting up of a compound wall separating their properties I find that the impleadment of the third respondent as a co-defendant in the suit of the petitioner is essential to advance the ends of justice. To ascertain the cause of action in a suit for injunction it is not the date on which the threat or interference alleged is material but the totality of the allegations raised in the plaint which has to be looked. Further apprehension of the plaintiff whether, it is bonafide or not, determines whether he has got a cause for the relief so claimed. During the pendency of the suit W.P.(C).No.5839 OF 2009 Page numbers the first defendant had assigned the property in favour of the third defendant and he has came into possession of the property situate in the eastern side of the plaint 'C' schedule. Apprehension of the plaintiff emerges from the fact of a threat to his property from the owner of the property situate on the eastern side of his property and such being the position rather that driving him to file a fresh suit against the third respondent impleading him as an additional defendant in the suit an adjudication of the disputes involved is called for for a fair and proper disposal of the suit to advance the ends of justice. The challenges raised by the learned counsel for the third respondent that the affidavit was not sworn to by the plaintiff and that he has no cause of action against him for the relief claimed, if so material, can be urged in the trial of the suit as it may have a bearing on the bonafides of the plaintiff W.P.(C).No.5839 OF 2009 Page numbers in seeking the relief. The impugned order, Ext.P5 is set aside and the court below is directed to implead the third respondent as additional third defendant in the suit. The additional third defendant is to be given sufficient opportunity to file written statement and then complying with the procedural requirements the court is directed to dispose the suit in accordance with law. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv