IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 20552 of 2009(O) --------------------------------------- OS.437/2008 of MUNSIFF COURT-II, KOZHIKODE. .................... PETITIONER(S): ---------------------- K. MEENAKSHI, W/O.KARI, RESIDING AT 33/206, PAYANARAMBATH PARAMBA, MALAPARAMBA, CALICUT. BY ADV. MR.V.V.SURENDRAN RESPONDENT(S): ------------------------ 1. COMMUNIST PARTY OF INDIA (MARXIST), VETTAYAD BRANCH COMMITTEE, REPRESENTED BY ITS SECRETARY, MALAPARAMBA, KOZHIKODE. 2. M.C.SANTHOSH, AGE AND FATHER'S NAME NOT KNOWN, SECRETARY, VETTAYAD BRANCH COMMITTEE, COMMUNIST PARTY OF INDIA (MARXIST), MALAPARAMBA, KOZHIKODE. 3. KOZHIKODE CORPORATION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE BEACH ROAD, KOZHIKODE – 32. R3 BY ADV. MR.K.D.BABU,SC,KOZHIKODE CORPORATION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 20552/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT PRESENTED BY THE PETITIONER. EXT.P2: COPY OF THE WRITTEN STATEMENT. EXT.P3: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.2772/2008. EXT.P4: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.2773/2008. EXT.P5: COPY OF THE COUNTER STATEMENT FILED BY THE 3RD RESPONDENT. EXT.P6: COPY OF THE ORDER IN I.A.2772/2008 DATED 09/02/2009. EXT.P7: COPY OF THE ORDER OF THE LEARNED MUNISFF IN I.A.2773/2008 DATED 09/02/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.20552 OF 2009 -------------------------- Dated this the 17th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue an appropriate writ or order setting aside Exts.P6 and P7 orders of the learned Munsiff. ii) Issue any other appropriate order which this Hon'ble Court may deem just, fit and proper in the facts and circumstances of the case and sufficient for the redressal of the grievance of the petitioner. W.P.(C).No.20552 OF 2009 Page numbers 2. Petitioner is the plaintiff in O.S No.437 of 2008 on the file of Additional Munsiff Court - I, Kozhicode. Respondents 1 and 2 are the defendants in that suit. Third respondent was sought to be impleaded as an additional defendant but it was not allowed by the court below. Suit is filed by the plaintiff to set aside a document and also for mandatory injunction to demolish a building put up by the defendants in violation of the Building Rules. Pursuant to filing of written statement by defendants 1 and 2 resisting the suit claim, plaintiff moved an application for amendment of the plaint and also for impleading the local authority as an additional third defendant. Amendment was sought for to incorporate an additional relief of injunction against the Corporation from issuing any license or regularising the building illegally put up in the plaint property. Preposed third defendant as well as the defendants in the suit filed objections. W.P.(C).No.20552 OF 2009 Page numbers The learned Munsiff after hearing both sides dismissed the application for impleadment and also the amendment application vide Exts. P6 and P7 orders. Propriety and correctness of those orders are challenged in the 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. Learned counsel for the petitioner submitted that no notice or order passed by the local authority was challenged by impleading that authority as an additional defendant but only a decree of injunction sought to restrain it from issuing license or regularising the construction put up in the property. So much so, it is submitted by the counsel, the bar of jurisdiction under Section 563 of the Kerala Municipality Act is not applicable to the case. On the other hand the learned counsel for the third respondent/ local authority inviting W.P.(C).No.20552 OF 2009 Page numbers my attention to Section 544 and 509 of the Kerala Municipality Act, submitted that in the given facts of the case, the local authority was not a necessary party and no interference with the order passed by the court below emerges for consideration. Perusing Ext.P6 and P7 orders with reference to the submissions made by the counsel on both sides and the facts and circumstances presented, I find that the court below was not correct in declining the impleadment of additional third local authority as an additional defendant as barred under Section 563 of the Kerala Municipality Act. Petitioner / plaintiff has sought only a decree of injunction against the Corporation from issuing a license or regularising the construction which is alleged to have been illegally put up in plaint property. No notice or order passed by the Corporation was challenged in the case. Sub section (2) of Section 544 also state no notice is necessary for filing a suit for injunction against W.P.(C).No.20552 OF 2009 Page numbers the corporation. Even otherwise in the given facts of the case, the presence of the Corporation atleast as a proforma party may be essential for a fair adjudication of the case. I am not expressing any view on the merits of the suit claim nor whether the plaintiff is entitled to sustain the claim for decree of injunction against the Corporation as sought for. Dismissal of the petition for impleadment of the third defendant Corporation for the reason stated under the impugned Ext.P6 order cannot be sustained. Ext.P6 and P7 orders are set aside and the court below is directed to consider Ext.P3 and P4 applications afresh and dispose them in accordance with law. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv