IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 WP(C).No. 25398 of 2010(O) ---------------------------------------- OS.NO.13/2007 of PRL.MUNSIFF'S COURT-1,KOZHIKODE .................... PETITIONER(S): ------------------------- S.SANDEEP, S/O. SURESH BABU, H.R. EXECUTIVE, OMS ROAD, KILPOKKU, 13-A NEW NO.45, CHENNAI, TAMIL NADU, REPRESENTED BY POWER OF ATTORNEY HOLDER, V.R.SUNIL, S/O. KRISHNAN NAIR,3/113 B, KACHERI AMSOM,KURUMBRAKATTASSERI, KOZHIKODE. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE ADV.SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S): ---------------------------- 1. GANGADHARAN NAIR, S/O. MEENAKSHI AMMA, MURUVATTUKAVIL THAZHAM, THAMARASSERY AMSOM AND DESOM, KOZHIKODE-673 001. 2. C.K.SARADA, D/O.C.K.MEENAKSHI AMMA, KANDIYIL HOUSE, KACHERI AMSOM, DESOM, BILATHIKULAM, KOZHIKODE-673 011. 3. RIYON, S/O. SARADA, IN DO-DO- PIN-673 011. 4. ELON, S/O. SARADA, IN DO-DO- PIN-673 011. 5. RUGMINI, W/O. SREEDHARAN NAIR, KARIYERI PARAMBU, ERNHIPPALAM, KACHERI AMSOM, DESOM, KOZHIKODE-673 001. 6. VIJAYALAKSHMI, D/O. PARUKUTTY AMMA, KANDIYIL HOUSE, BILATHIKULAM, KACHERI AMSOM,DESOM, KOZHIKODE-673 011. 7. SATHEESH, S/O. BALAN, IN DO-DO- PIN-673 011. 8. SHYLESH, S/O. BALAN, RESIDING IN DO-DO- PIN-673 011. sts 2/- -2- WP(C)NO.25398/2010 9. SAROJINI AMMA, AVIDANALLOOR, NADUVANNOOR, KOTTOOR PANCHAYAT, KOZHIKODE-671 542. 10. SANTHAKUMARI, D/O. C.K.SAROJINI AMMA, IN DO-DO- PIN-671 542. 11. C.K.SASIKALA, D/O. C.K.SAROJINI AMMA, THANACHERI HOUSE,'VIKAS', THIRUVANNOOR AMSOM, DESOM, KOYILANDY-673 612. 12. UNNIKRISHNAN, S/O. SREEDEVI AMMA, K.R.NIVAS, THURUTHYAD, BALASSUERY, KOZHIKODE-673 612. 13. C.K.SREEKUMARAN NAIR, S/O.NANIKUTTY AMMA, 'KRISHNALAYAM', CHEMANCHERI AMSOM, DESOM, THIRUVANGOOR, KOYILANDY TALUK. PIN-673 612. 14. JANAKI AMMA, D/O. MADHAVAN NAIR, "SREEHAVAN", CHUNKAM, WEST HILL, KACHERI AMSOM, DESOM, KOZHIKODE.PIN-673 001. 15. KRISHNANUNNI, S/O.DO- 'ABHAYAM', GANGORE NAGAR, KADAVANTHARA, KOCHI-20. 16. C.K.SIVASANKARAN NAIR, S/O. MADHAVAN NAIR, SEEKO APARTMENT, SEMINARI VIEW, KANNANKANDY, MANGALAPURAM. PIN-575 001. 17. VISWANATHAN, S/O.JANAKI AMMA, 'LAKSHMI NIVAS', NEAR BOYS HIGH SCHOOL, KOYUILANDY-673 612. 18. GOURI, D/O.LAKSHMIKUTTY AMMA, IN DO-DO-PIN-673 612 19. GELI, D/O. DO. IN DO-DO- PIN-673 612. 20. BALAMANI, 'SAYISUDHA', ERANHIPALAM, KACHERI AMSOM, DESOM KOZHIKODE. PIN-673 612. 21. KARUNAKARAN NAIR,S/O. APPU VYDIAR, KANDIYIL HOUSE, KACHERI AMSOM,DESOM, BILATHIKULAM KOZHIKODE.PIN-673 011. 22. YASODA, W/O. DAMODARAN NAIR,FLAT NO. 56, BANK COLONY, D.D.MITHALE, SECUNDERABAD. PIN-500 003. R1 BY ADV. SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.25398/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ISSUED FRAMED IN THE SUIT O.S.NO.13 OF 2007, PRL.MUNSIFF'S COURT-1, KOZHIKODE, DATED 22/9/2008. P2 COPY OF THE APPLICATION I.A.4349/2009 IN O.S.NO.13 OF 2007, PRL.MUNSIFF'S COURT-1, KOZHIKODE, DATED 1/1/2009. P3(A) COPY OF THE APPLICATION I.A.4635/2009 IN O.S.NO.13 OF 2007, PRL.MUNSIFF'S COURT-1, KOZHIKODE, DATED 23/12/2009. P3(B) COPY OF THE ADDL.WRITTEN STATEMENT IN O.S.NO.13 OF 2007, PRL.MUNSIFF'S COURT-1, KOZHIKODE, DATED 23/12/2009. P4 COPY OF THE ORDER IN I.A.4349 OF 2009 IN O.S.NO.13 OF 2007, PRL.MUNSIFF'S COURT-1, KOZHIKODE, DATED 21/6/2010. P5 COPY OF THE ORDER IN I.A.4435 OF 2009 IN O.S.NO.13 OF 2007, PRL.MUNSIFF'S COURT-1, KOZHIKODE, DATED 5/6/2010. P6 COPY OF THE WRITTEN STATEMENT OF DEFENDANT NO.22 IN O.S.NO.13 OF 2007, PRL.MUNSIFF'S COURT-1, KOZHIKODE, DATED 12/3/2009. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P.JOSEPH, J. ==================================== W.P(C) No.25398 of 2010 ==================================== Dated this the 19th day of December, 2011 J U D G M E N T Challenge in this Writ Petition filed under Article 227 of the Constitution is to Exts.P4 and P5, orders. 2. First respondent filed the suit for partition of plaint B schedule and other reliefs. According to the first respondent, plaint B schedule property is partible among parties to the suit in accordance with the shares he has claimed in the plaint. Petitioner/additional 22nd defendant in the suit filed Ext.P6, written statement disputing various claims made by the first respondent. Learned Munsiff framed issues (Ext.P1). That was followed by petitioner filing Ext.P3(a), application to receive additional written statement (Ext.P3[b]) and another application (Ext.P2) to frame additional issues. Exhibit P3(a), application was dismissed as per Ext.P5, order while so far as Ext.P2, application is concerned learned Munsiff observed that it is not necessary to have an application to raise additional issues, that an additional issue regarding non-joinder of necessary parties was raised and the request to frame additional issues was not allowed. Thus W.P(C) No.25398 of 2010 -: 2 :- Exts.P4 and P5, orders are under challenge. 3. Learned Senior Advocate appearing for petitioner contended that in Ext.P6, written statement it is stated that petitioner who is an assignee from one of the sharers in an earlier litigation has contended that the present suit is barred by limitation, bad for non-joinder of necessary parties and that it is hit by estoppal and res judicata. Contention of petitioner is that plaint B schedule property which is sought to be partitioned in the present suit is the subject matter of O.S. No.5 of 1954 of the same court as item No.2, first respondent was the 17th defendant in that suit; but he was not allotted any share in item No.2 in O.S. No.5 of 1954 which is plaint B schedule in the present suit. In that view of the matter, first respondent is not entitled to bring the present suit for partition of plaint B schedule as his plea is barred by estoppal and the suit is hit by res judicata. 4. I have heard learned counsel for first respondent also who contended that there is no reason to interfere with Exts.P4 and P5, orders. 5. So far as Ext.P5, order refusing to allow additional written statement is concerned, Rule 9 of Order VIII of the Code of Civil Procedure (for short, “the Code”) empowers the court to W.P(C) No.25398 of 2010 -: 3 :- allow a party to raise subsequent pleadings if circumstances warranted that. In Ext.P3(a), application petitioner has stated the circumstances under which additional written statement was being filed. I have been taken through Ext.P6, the original written statement where substantially the entire contentions are raised. Having regard to that aspect also, I am inclined to think that petitioner could be permitted to file additional written statement. In that view of the matter, Ext.P5, order has to be set aside. 6. So far as Ext.P2, application for raising additional issue is concerned it is seen from Ext.P4, order that learned Munsiff has observed that to raise additional issues an application is not necessary and that from the pleading an additional issue as to whether the suit is bad for non-joinder of parties is required to be raised. Accordingly that question was raised as an additional issue. But rest of Ext.P2, application was disallowed. 7. I have been taken through the contentions raised in Ext.P6, original written statement and Ext.P3(b), additional written statement (which I found, can be received). It is seen that petitioner has raised a plea that the present suit is barred by limitation and in view of the decision in O.S. No.5 of 1954, the W.P(C) No.25398 of 2010 -: 4 :- present suit is hit by estoppal and res judicata. In view of that it is necessary to raise those questions as additional issues. So far as Ext.P2, application relating to the reservation claimed by petitioner is concerned, it is not necessary to raise that as an additional issue. It is open to the learned Munsiff to consider the same in the course of final decree proceedings in case the relief prayed for by the first respondent in the suit is allowed. Writ Petition is disposed of as follows: (a) Exhibit P4, order is set aside and Ext.P2, application is allowed to the extent that apart from the additional issue regarding non-joinder of necessary parties already raised, learned Munsiff shall raise additional issues whether the suit is barred by limitation and whether the suit is barred for estoppal and res judicata. (b) The question whether reservation claimed by petitioner could be allowed or not shall be relegated for decision in the final decree proceedings in case the learned Munsiff grants a preliminary decree for partition. (c) Exhibit P5, order is set aside and Ext.P3(a), W.P(C) No.25398 of 2010 -: 5 :- application is allowed. Learned Munsiff is directed to receive Ext.P3(b), additional written statement filed by the first respondent. (d) Learned Munsiff is directed to decide the issues framed and additional issues directed to be framed in the suit after recording evidence in the course of trial. All pending Interlocutory Applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv