IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 OP(C).NO. 1878 OF 2011(O) ---------------------------------------- I.A. NO.10342 OF 2010 IN OS.214/2006 OF PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM .................... PETITIONER: --------------------- K.SASIDHARAN, MANJU NIVAS, KATTAKKALIL, KOLLAMKONAM, VILAPPILSALA, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.R.S.MADHU RESPONDENT(S): ------------------------- 1. CHANDRAN, PANAYIL VEEDU, VILAPPILSALA, THIRUVANANTHAPURAM-695573. 2. THE VILLAGE OFFICER, VILAPPILSALA VILLAGE OFFICE, PEYAD P.O., THIRUVANANTHAPURAM-695573. 3. THE GOVERNMENT OF KERALA, REP. BY THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM-695005. ADV. SRI.S.D.ASOKAN FOR R1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.1878 of 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ----------------------------------- EXHIBIT P1 TRUE COPY OF PLAINT IN O.S. NO.214 OF 2006 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. EXHIBIT P2 TRUE COPY OF THE IMPLEADING PETITION NUMBERED AS I.A. NO.11195 OF 2009. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 13.9.2010 IN I.A. NO.11195 OF 2009 IN O.S. NO.214 OF 2006 OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. EXHIBIT P4 TRUE COPY OF THE REVIEW PETITION AS I.A. NO.10342 OF 2010 IN O.S. NO.214 OF 2006. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 31.3.2011 IN I.A. NO.10342 OF 2010 IN O.S. NO.214 OF 2006. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1878 of 2011 -------------------------------------- Dated this the 11th day of July, 2011. JUDGMENT First respondent appears through counsel. Learned Government Pleader takes notice for respondents 2 and 3. 2. As it originally stood, the suit - O.S.No.214 of 2006 of the court of learned Principal Munsiff, Thiruvananthapuram filed by the petitioner was one for decree for prohibitory injunction against the first respondent, private party trespassing into the suit property, forcibly evicting petitioner and to restrain the second respondent/second defendant, the Village Officer from co-relating survey No.381/10 with re-survey No.432/33. The State Government was impleaded as third defendant in the suit since petitioner had instituted the suit against second respondent, the Village Officer who is a Government servant (obviously in view of Rule 5A of Order 27 of the Code of Civil Procedure – for short, “the Code”). Petitioner filed I.A.No.1430 of 2006 seeking leave to sue the second respondent dispensing with notice under Section 80 of the Code since petitioner is seeking urgent relief. Learned Principal Munsiff has granted leave to sue the second respondent. While so, petitioner filed I.A.No.11195 of 2009 to implead the District Collector, Thiruvananthapuram (who was shown to be representing the third defendant, the State Government) as additional fourth defendant in his official capacity for the reason that since according to the OP(C) No.1878/2011 2 petitioner in the meantime, on a petition moved by first respondent before the State Government and forwarded to the District Collector, the latter passed an order setting aside thandaper account in the name of petitioner and petitioner wanted to challenge that order. That application was dismissed as per order dated September 13, 2010 (Ext.P3) for the reason that before seeking impleadment of the District Collector no notice under Section 80(1) of the Code was issued to him and hence the application for impleadment is premature. That was followed by petitioner filing I.A.No.10342 of 2010 for review of the said order. The application for review met with the same result and hence this Original Petition in challenge of the said orders. Learned counsel for petitioner has contended that the District Collector has passed the order setting aside thandaper account in the name of petitioner during pendency of the suit. It is also pointed out that first respondent had no objection in the impleadment of District Collector as additional fourth defendant. I have heard learned counsel for first respondent and the learned Government Pleader. 3. It is not disputed that reason for impleading the District Collector as additional fourth defendant in his official capacity is that during pendency of the suit he passed an order setting aside thandaper account in the name of petitioner in respect of the property in dispute. When that order of the District Collector passed in his official capacity, necessarily, if the District Collector is to OP(C) No.1878/2011 3 be proceeded against and the said order challenged, notice under Section 80 (1) of the Code had to be issued. In that view of the matter I do not find reason to interfere with the order passed on I.A.No.11195 of 2009. 4. That need not be the end of the matter. It is not necessary that the petitioner has to file a separate suit against the District Collector if his grievance could be agitated in the pending suit. The appropriate course is to grant time to the petitioner to issue notice to the District Collector and such other authority as may be required under Section 80(1) of the Code and after the statutory period is over, seek impleadment of the District Collector in the suit. For the said purpose, the suit could be kept pending for some time. In the circumstances, while declining to interfere with the orders passed by learned Principal Munsiff, Thiruvananthapuram refusing to implead the District Collector as additional fourth defendant on the ground that the application is premature for want of compliance with Section 80(1) of the Code and refusing to review the said order, it is directed that trial of O.S.No.214 of 2006 of the court of learned Principal Munsiff, Thiruvananthapuram will stand in abeyance for a period of three months from this day. In the meantime, if petitioner is so advised it is open to him to comply with Section 80(1) of the Code and seek impleadment of the District Collector in the suit. If any such application is preferred learned Principal Munsiff, notwithstanding dismissal of I.A.Nos.11195 of 2009 and 10342 of 2010 shall consider the said application, if such application is made OP(C) No.1878/2011 4 after compliance with Section 80(1) of the Code and having regard to the facts and circumstances of the case and pass appropriate orders on such application. Original Petition is disposed of as above. THOMAS P.JOSEPH, Judge. cks