IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 WP(C).No. 37705 of 2008(L) -------------------------------------------- IA.6124/2008 IN OS.449/2007 of I ADDL.SUB COURT, ERNAKULAM .................... PETITIONER: P.S.BABURAM, S/O SAHADEVAN, AGED 33, BABU BHAVAN, ERUVA KIZHAKKIMMURI, PAYIPRA, PATHOOYOOR VILLAGE, KARTHIKAPPILLY TALUK AND NOW RESIDING AT MADUVAN, FR.GEORGE VAKAYIL ROAD, MARADU P.O. ERNAKULAM. BY ADV. SRI.K.P.DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENTS: 1. SREENIVASAN EMBRANDIRI, AGED 71, S/O GOPALAKRISHNAN EMBRANDIRI, DURGALAYAM, KALARIKKAL MADOM, KUMBALAM, ERNAKULAM-682 506. 2. N.K.LAKSHMIKUTTY AMMA, W/O LATE BALAKRISHNAN NAIR, AGED 61, REP. BY K.S.VINODKUMAR, S/O M.K.LAKSHMIKUTTY AMMA, AGED 37, KALAPURACKAL HOUSE, SOCIETY ROAD, MARADU. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.37705 of 2008 -------------------------- JUDGMENT Heard counsel for the petitioner. 2. Petitioner is the plaintiff in O.S.No. 449/07 on the file of the Sub Court, Ernakulam. The suit is one for specific performance of an agreement to sell immovable property to the plaintiff, entered into with the sole defendant. It is submitted by the counsel for the petitioner that he had obtained an injunction order from the court below restraining transfer of the property by the first defendant to anyone else, but that, violating that order of injunction, he has transferred the property in favour of one Lakshmikutty Amma, who sought to get herself impleaded in the suit, filing an application for impleadment invoking Order I Rule 10(2) CPC. The said application (I.A.No.6124/08) was disposed of by the court below vide Exhibit P1 order in the absence of the petitioner therein and her counsel. WPC 37705/08 2 On the basis of I.A.No.8481/08 filed by the power of attorney holder of the said Lakshmikutty Amma, the petitioner therein, to restore I.A.No.6124/08 disposed of in her absence vide Exhibit P1 order, the court below, vide Exhibit P2 order, restored I.A.No.6124/08. Thereafter, vide Exhibit P3 order passed on I.A.No.6124/08, the court below allowed the petitioner therein to be impleaded as additional second defendant observing that subsequent purchaser is a necessary party. It is the said order that is assailed before me. 3. It is vehemently contended before me by the learned senior counsel Sri.K.P.Dandapani that the subsequent transferee of the property agreed to be sold and that too after the institution of the suit for specific performance and violating the order of injunction is not a necessary party, who can come to the party array as an additional defendant to resist the suit; that the petitioner/plaintiff is the master of the suit and that the impleadment allowed by the court below holding that the WPC 37705/08 3 subsequent purchaser is a necessary party is untenable, as it is settled position that the subsequent transferee is not a necessary party to the suit. 4. All the same, I see from Exhibit P1 order that I.A.No.6124/08 is filed invoking Order I Rule 10(2) CPC and though the petitioner/plaintiff is the master of the suit, the court has the authority to direct impleadment of an additional party. Now, the question is whether the court below is justified in allowing impleadment observing that the petitioner in I.A.No.6124/08 is a necessary party. Obviously, she is not a necessary party to the suit, but, all the same, she is a proper party. There is nothing wrong in permitting her to be impleaded as an additional defendant. Learned counsel for the petitioner/plaintiff submits that the petitioner/plaintiff is prepared to face all the consequences that may crop up while modulating the reliefs to be granted for absence of the subsequent purchaser on the party array and that WPC 37705/08 4 the petitioner/plaintiff is prepared to take the risk. In view of the said submission, at the risk of the petitioner/plaintiff, I order that subsequent purchaser, who is allowed to be impleaded as additional second defendant, need not be brought on party array and she can have her rights protected through the original defendant, who is her vendor. Petitioner is directed to produce a copy of this judgment in the court below forthwith with notice to the counsel for the respondents as this writ petition is being disposed of without notice to them and with a view to enable the court to proceed further as per the directions in this judgment. This writ petition is disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioner urgently. 19th December, 2008 (K.P.Balachandran, Judge) tkv