IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 WP(C).No. 4246 of 2009(E) -------------------------------------- AGAINST THE ORDER IN IA 328/2009 IN OS.112/2008 of PRL.S.C.,THALASSERY. .................... PETITIONER(S): ------------------------- 1. N.KUNHIRAMAN NAIR S/O.KELU, GROCERY TRADER PO., NIRMALAGIRI 2. VANIYANKUNHI ACHUTHAN, S/O.POKKAYI, TRADER, PO.NIRMALAGIRI. 3. P.PRASAD, S/O.ACHU, ELECTRICIAN, PO.NIRMALAGIRI. 4. KOROTHAN VIJAYAN, S/O.KUNHIKANNAN, TAILOR, PO.NIRMALAGIRI. 5. MAVILA NANU, S/O.KUNHIRAMAN, VEGETABLE TRADER, PO.NRMAQLAGIRI. 6. K.DINESHAN, S/O.KRISHNAN, TAILOR, PO.NIRMALAGIRI. 7. U.K.KRISHNAN, S/O.KUNHIKANNAN,GROCERY TRADER, PO.NIRMALAGIRI. BY ADVS.MR.V.V.ASOKAN MR.P.P.RAMACHANDRAN RESPONDENT(S): -------------------------- 1. PUSHPALATHA, S/O.LATE PANCHAKALAKSHMI, OM NIVAS, PO.NIRMALAGIRI. 2. RAJEEV, S/O.LATE PANCHAKALAKSHMI, PO.NIRMALAGIRI. W.P.(C) NO.4246/2009 3. BINDU, D/O.LATE PANCHAKALAKSHMI PO.NIRMALAGIRI 4. RAGESH, S/O.LATE PANCHAKALAKSHMI, PO.NIRMALAGIRI. 5. MALAPPILAYI MANOHARAN, S/O.ACHU, PO.NIMALAGIRI. R5 BY ADV. MR.K.P.HARISH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.4246/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 112/08 , SUB COURT, THALASSERY DTD. 17.3.08. P2:- COPY OF THE WRITTEN STATEMENT FILED BY THE 5TH DEFENDANT IN OS. 112/08 SUB COURT, THALASSERY DT. 5.7.08. P3:- COPY OF THE AFFIDAVIT AND PETITION IN IA. 60/2009 IN OS. 112/08 SUB COURT, THALASSERY DTD. 3.1.09. P4:- COPY OF THE MEMO FILED BY THE COUNSEL FOR THE PLAINTIFFS IN OS. 112/08, SUB COURT, THALASSERY DT. 16.1.09. P5:- COPY OF THE AFFIDAVIT AND PETITION IN IA. 328/09 IN OS. NO.112/08 SUB COURT, THALASSERY DTD. 21.1.09. P6:- COPY OF THE ORDER OF THE SUB COURT, THALASSERY IN IA. 328/09 IN OS. 112/08. DT. 5.2.09. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.4246 OF 2009 -------------------------- Dated this the 4th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records of the case leading to Ext.P6 and set aside the same by the issue of an appropriate writ in the nature of certiorari or other appropriate writ direction or order. ii) Pass an appropriate writ or order directing the Sub Court, Thalassery to dispose of Ext.P3 application (I.A.No.60 of 2009) before proceeding to dispose of the suit on its merits. W.P.(C).No.4246 OF 2009 Page numbers iii) Grant such other orders as may be deemed necessary in the facts and circumstances of this case and in the interest of justice. 2. Petitioners are the plaintiffs in O.S.No.112 of 2008 on the file of the Sessions Court, Thalassery. Suit is one for specific performance of an agreement of sale and the respondents are the defendants. The case of the petitioners / plaintiffs in short is that there was an agreement of sale for the shop rooms in their occupation with the landlord / owner, one Panchalakshmi and pursuant to which a portion of the sale price agreed was also handed over, and received by the said landlord. It is their further case that such agreement was entered at a time when acquisition proceedings for widening of a road beside their shop room was contemplated affecting W.P.(C).No.4246 OF 2009 Page numbers some portions of the shop buildings under their occupation. However later violating the agreement, according to the petitioners, their landlord conveyed the property to the 5th defendant / 5th respondent in the writ petition. Suit was laid for the reliefs claimed, after the death of the landlord Panchalakshmi, impleading her children and also the 5th defendant. The 5th defendant in his written statement among other contentions resisting the suit claim contended that the husband of the landlord as one among the legal heirs of Panchalakshmi is also a necessary party to the suit. According to the petitioners they moved an application to furnish an interrogatory to the 5th defendant before the case was included in the special list for trial. Ext.P3 is the copy of the application served on the 5th defendant. The case was included in the special list for trial on 10/02/2009. Petitioners moved an application for W.P.(C).No.4246 OF 2009 Page numbers removal of the case from the list submitting that the petition filed to serve interrogatories on the 5th defendant has not been considered by the court. The court below after considering the application for removal of the case from the list dismissed it by Ext.P6 order. propriety and correctness of Ext.P6 order is challenged in the writ petition seeking a direction to the court below for consideration of Ext.P3 application on merits invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. The learned counsel for the petitioners submitted that the court below was not justified in declining the request for removal of the case from the list when the petition filed for serving interrogatories on the 5th defendant remained to be W.P.(C).No.4246 OF 2009 Page numbers considered before proceeding with the trial of the case. It is the further submission of the counsel that after passing an interim stay in the writ petition, the next day the application for serving interrogatories was also dismissed. On the other hand the learned counsel for the petitioners submitted that after the death of the landlord Panchalakshmi, rent control proceedings had been initiated against the petitioners for their eviction, in which among the successors of the landlord with her children her husband was also a party. All among the petitioners / tenants knew that on the death of Panchalakshmi, the previous land lord, her rights over the property devolved upon her husband and also the children. So much so, the interrogatory that was filed to be served upon the 5th defendant raising a question whether petitioner was governed marumakkathayam laid was totally irrelevant but only an attempt to prolong W.P.(C).No.4246 OF 2009 Page numbers the litigation of the case. The rent control proceedings had been initiated against the tenants before the institution of the suit was not disputed before me, but, the learned counsel for the respondents pleaded ignorance whether in such proceedings the husband of Panchalakshmi was one among the petitioners / landlords as a legal heir of the previous landlord. Whatever that be, it is seen the application for removal of the case from the list was pressed into service only on the day the case came up for trial, and not before. Similarly the written statement of the 5th defendant setting forth the contention that the suit is bad for nonjoinder of necessary parties was filed months before the filing of the interrogatories. The case advanced by the petitioners / plaintiffs in the suit they wanted an interrogatory to be served on the 5th defendant, a purchaser of the property from the original landlord and without an W.P.(C).No.4246 OF 2009 Page numbers answer from that defendant they are not aware as to who are the legal heirs of Panchalakshmi cannot be believed. So much so, the filing of the interrogatory stated and its nonconsideration as the reason stated to verify whether the impleadment of the husband of the previous landlord as one among the defendants in the suit as a necessary party canvassed by the petitioners, cannot appreciated. I do not find any impropriety or illegality in the order passed by the court below declining the request of the petitioners for removal of the case from the list. 4. Writ petition is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv