IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 WP(C).No. 16927 of 2008(M) -------------------------- OS.175/2001 of MUNSIFF COURT,KAYAMKULAM .................... PETITIONER(S): -------------------------- 1. VELUTHAKUNJU VIJAYAN, SHAJU BHAVANAM, THEKKU KOCHU MURI, KRISHNAPURAM VILLAGE. 2. USHA, W/O.VIJAYAN, SHAJU BHAVANAM, THEKKU KOCHU MURI, KRISHNAPURAM VILLAGE. BY ADV. MR.C.RAJENDRAN RESPONDENT(S): --------------------------- MABLE JOHN, MULAVELIL THEKKETHIL VEETTIL THEKKE KOCHU MURIYIL, KRISHNAPURAM VILLAGE. BY ADVS. MR.P.SREEKUMAR MR.K.S.MANU (PUNUKKONNOOR) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16927/2008 M APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.175/2001. P2: COPY OF THE WRITTEN STATEMENT. P3: COPY OF THE ORDER DTD. 5/09/2005. P4: COPY OF THE IMPLEADING APPLICATION SUPPORTED BY AN AFFIDAVIT. P5: COPY OF THE ORDER DTD. 2/01/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.16927 OF 2008 (M) ----------------------------------- Dated this the 9th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. to call for the records leading to Ext.P3 and P5 orders and to set aside the same. ii. to pass an order allowing the petition to implead the children of the defendant as additional defendant Nos.2 to 5 in O.S.No.175/2001 on the file of the Munsiff Court, Kayamkulam. iii. To give a direction to the Munsiff Court, Kayamkulam to defer the trial of O.S.No.175/2001 posted to 07.06.2008 in the list and take up the same only after the impleadment of the additional defendants in the case. iv. to grant such other reliefs in the interest of justice. 2. Petitioners are the plaintiffs in O.S.No.175/2001 on the file of the Munsiff Magistrate Court, Kayamkulam. Suit WPC.16927/08 2 was one for declaration and injunction. In the suit, the plaintiffs had moved an application for impleadment of some additional defendants but that application was dismissed by the learned Munsiff for the reason that it was belated. Pursuant thereto, it is stated a decree was passed ex parte in favour of the plaintiffs. On the application moved by the defendants, the ex parte decree was later set aside and the suit taken up for trial. Plaintiffs again moved an application for impleadment of additional defendants as canvassed in their previous petition before the suit was decreed ex parte. The learned Munsiff, after hearing both sides, dismissed that application for the reason that the matter involved had been decided earlier, and that decision constituted res judicata and further the earlier decision was suppressed in the present petition. Impeaching the correctness of that order, petitioners/plaintiffs in the suit have filed the present petition for quashing that order invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. At the time of hearing, it was brought to my notice that the case stands WPC.16927/08 3 posted in the list for trial today. Whatever be the merit of the case advanced by the petitioners impeaching the correctness of Ext.P5 order, I find it will not be proper for this Court at this stage to interfere with the order as the case is already included in the list for trial. At this stage, the learned counsel for the petitioners made a fervent plea that as the nonjoinder of necessary parties in the suit on disallowing of amendment application is fatal he may be permitted to move an application before the lower court for withdrawal of the suit with permission to file a suit afresh untrammeled by any of the orders passed in the pending suit. I find the submissions made by the counsel deserve consideration. If any application is moved as desired by the plaintiffs it should receive serious consideration by the court below since it is apparent from the facts presented that for some reason, whatsoever that be, necessary parties have not been made parties to the suit which may impair the right of the plaintiffs to sustain the suit claim. So much so, I direct the learned Munsiff to consider the application for withdrawal of the suit with liberty to file suit, if any, moved by the plaintiffs and pass appropriate orders therein in accordance with law without being WPC.16927/08 4 influenced in any manner by Ext.P5 order. Writ petition is disposed with the above observations. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009