IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 WP(C).No. 28373 of 2009(O) -------------------------- AGAINST THE ORDER IN IA 3348/2009 IN OS.1880/2008 of II ADDL.M.C.,TRIVANDRUM .................... PETITIONER(S): --------------- JYOTHY, S/O.VASUDEVAN PILLAI, AGED ABOUT 50 YEARS, T.C.NO.18/450(2), THIRUMALA, ARAMADA P.O, THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV RESPONDENT(S): --------------- 1. KRISHNAKUMAR, S/O.SASIDHARAN NAIR, T.C.NO.23/1178, KARAMANA, THIRUVANANTHAPURAM. 2. SASIDHARAN NAIR, T.C.NO.17/1808, POOJAPURA, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.28373/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.1880/08 FILED BEFORE THE MUNSIFF'S COURT, THIRUVANANTHAPURAM. EXT.P2: COPY OF THE ORDER OF INJUNCTION DATED 30.10.2008. EXT.P3: COPY OF THE SALE AGREEMENT EXECUTED BY THE 2ND RESPONDENT DATED 4.9.2009 ALONG WITH THE CONSENT DEED IN FAVOUR OF THE PETITIONER. EXT.P4: COPY OF THE PLAINT IN O.S.NO.149/2009 FILED BY THE PETITIONER BEFORE THE HONOURABLE SUB COURT, THIRUVANANTHAPURAM. EXT.P5: COPY OF THE AFFIDAVIT AND PETITION IN I.A.NO.3348/09 IN O.S.NO.1880/08 FILED BY THE PETITIONER. EXT.P6: COPY OF THE ORDER DATED 15.9.2009 IN I.A.NO.3348/09 IN O.S.NO.1880/08 ON THE FILE OF THE 2ND ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.28373 OF 2009 () ----------------------------------- Dated this the 17th day of November, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records, which may lead to the passing of Ext.P6 order and quash the same as illegal, arbitrary and unsustainable after issuing a writ of certiorari or other appropriate writ, order or direction. ii. to direct the 2nd Additional Munsiff Court, Thiruvananthapuram to consider and pass orders in Ext.P5 petition afresh after taking note of the law on the point and order to implead the petitioner as additional 2nd defendant in Ext.P1 suit. 2. Petitioner is a third party who moved an application for his impleadment as an additional defendant in O.S.No.1880 of 2008 on the file of the 2nd Additional Munsiff WPC.28373/09 2 Court, Thiruvananthapuram. The above suit was one for partition and the 1st respondent is the plaintiff and the 2nd respondent, the defendant. The 1st respondent is the son of the 2nd respondent. After executing an agreement of sale in his favour in respect of one of the items of property (B schedule) covered by the suit, the 2nd respondent father, to defeat the lawful right of the petitioner in completing the contract and getting a sale deed, through his son, the 1st respondent, had instituted the suit, is the case of the petitioner for getting himself impleaded as additional 2nd defendant in the suit contending that his presence is necessary for a proper adjudication of the suit on its merit. Petitioner has already filed another suit against the father, 2nd respondent for specific performance of the agreement of sale and that is stated to be pending. The learned Munsiff, after hearing both sides, not being satisfied with the cause shown by the petitioner to get impleaded as an additional defendant, dismissed his application vide Ext.P6 order Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court WPC.28373/09 3 under Article 227 of the Constitution of India. 2. Though notice was served on the respondents, they have not entered appearance. I heard the learned counsel for the petitioner. Perusing Ext.P6 order with reference to the submissions made by the counsel, I find the suit being one for partition, petitioner cannot contend that he is a necessary party or even a proper party on the basis of the agreement of sale, which he is stated, to have obtained in respect of one of the items of the property from one of the parties in the suit. An agreement of sale does not by itself create an interest in the immovable property is amply made clear by Section 54 of the Transfer of Properties Act. Petitioner at the most is entitled for specific performance of the agreement of sale, for which he is stated to have already filed a suit. It is open to him to implead the plaintiff in the suit/1st respondent (son of the 2nd defendant) as a party in his suit for specific performance showing the circumstance as to why he should be impleaded to have an effective decree binding on him as well. At any rate, petitioner cannot contend that he has to be WPC.28373/09 4 impleaded as an additional defendant in the present suit. I do not find any impropriety or illegality in the order passed by the learned Munsiff, and the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp