IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 OP(C).NO. 740 OF 2010(O) ------------------------------------- OS.15/2008 OF ADDL.SUB COURT, PALAKKAD .................... PETITIONERS: --------------------- 1. P.V.VENUGOPAL, S/O.P.A.VENKITESWARA IYER, ASHIRWAD, 36/363, ST.FRANCIS SAVIOR CHURCH ROAD, CHAKKAMANDAM LINE, KALOOR, COCHIN. 2. V.D.PRAKASH, S/O.LATE P.A.VISWANATHAN, 27/33, MARUTHAM NAGAR, VADAVALLI, COIMBATORE-41, THAMIL NADU STATE. BY ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S): ------------------------- CHAMI ALIAS RAMACHANDRAN, S/O.LATE CHATHAN ALIAS CHAMUNNI, RESIDING AT HOUSE NO.6/425, THUPPALAMGADU, KARIMKARAPULLY AMSOM, PALAKKAD TALUK-678 018. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.740 of 2010 ==================================== Dated this the 16th day of November, 2010 J U D G M E N T This petition is filed by the plaintiffs in O.S.No.15 of 2008 of the court of learned Sub Judge, Palakkad aggrieved by Ext.P7, a single word order whereby the learned Sub Judge has allowed the application for impleadment made by the respondent under Rule 10(2) of Order I of the Code of Civil Procedure (for short, “the Code”). According to the petitioners they are the legal heirs of Aiyya Pattar to whom the suit property - 7.97 acres belonged. It is the case of petitioners that Aiyya Pattar had given on lease certain other items belonging to him to one Mallu. Petitioners and other legal heirs of Aiyya Pattar filed O.S. No.337 of 1989 for partition of the suit property impleading one Retna Babu also as defendant since he claimed right over property. Regarding the claim of Retna Babu over the suit property, the suit was decreed for partition among the other legal heirs of Aiyya Pattar. Decree in O.S. No.337 of 1989 has become final and was put into execution. In the meantime Retna Babu filed O.S. No.267 of 1989 for specific performance of an alleged agreement for sale of a share of the suit O.P(C) No.740 of 2010 -: 2 :- property against some other legal heirs of Aiyya Pattar. That suit ended in a dismissal and that has become final. In the course of execution of decree in O.S. No.337 of 1989 respondent herein made a claim that the suit property was also leased out by Aiyya Pattar to Mallu from whom he got it on sub lease. That application was opposed by petitioners and other legal heirs of Aiyya Pattar. Executing court dismissed that application which the respondent challenged in appeal (Ex.F.A. No.38 of 2010). This Court by Ext.P3, judgment dated 21.10.2010 set aside the order (Ext.P2) and remitted the matter to the executing court for fresh decision after giving both sides opportunity to adduce evidence. Claim made by the respondent in E.P. No.76 of 2008 in O.S. No.337 of 1989 is pending consideration of the executing court. In the meantime petitioners filed O.S. No.15 of 2008 for recovery of possession of the suit property from Retna Babu. Respondent filed I.A. No.2260 of 2009 in O.S.No.15 of 2008 for his impleadment obviously on the claim that he is a sub lessee of the suit property from Mallu who allegedly got a lease of the property from Aiyya Pattar. Though that application was resisted by petitioners learned Sub Judge as aforesaid by a single word order allowed the application. Learned Senior Advocate O.P(C) No.740 of 2010 -: 3 :- appearing for petitioners contended that respondent is not a necessary party in O.S. No.15 of 2008 and that at any rate the order is passed without taking into account objection raised by petitioners and without application of mind. 2. No doubt, learned Sub Judge has not passed a speaking order and passed the order “allowed”. It is quite unfortunate that such a non-speaking order was passed. Parties and the superior courts before which the order is challenged are entitled to know the reason for the subordinate court passing the order. Learned Sub Judge ought to have passed a speaking order taking into account the contentions raised by the parties. But having regard to the facts and circumstances of the case I do not think it necessary to remit the case to direct learned Sub Judge pass a speaking order if otherwise the matter could be disposed of in this proceeding. Petitioners filed O.S. No.15 of 2008 against Retna Babu whose suit for specific performance of the agreement has been dismissed and that dismissal has become final and with him also on the party array in O.S. No.337 of 1989 there is a confirmed verdict for partition of the suit property. Question whether respondent has any right, interest or possession of whole or any portion of the suit property is pending consideration O.P(C) No.740 of 2010 -: 4 :- of the executing court in O.S. No.337 of 1989. It is in such a situation that respondent has sought impleadment in O.S. No.15 of 2008. Assuming that he is not a necessary party, it cannot be said that he is not a proper party to O.S. No.15 of 2008. For, he has made a claim in E.P. No.76 of 2008 in O.S. No.337 of 1989 which is yet to be decided by the executing court and in that situation if without the respondent also as party in O.S. No.15 of 2008 that suit is disposed of there is possibility of divergent findings regarding possession being entered by the courts in the respective proceedings. In these circumstances respondent is a proper party in O.S. No.15 of 2008 and hence I find no reason to interfere with the impugned order notwithstanding that it is not a speaking order. 3. Learned Senior Advocate submitted that since in view of impleadment of respondent question of possession and right that he may raise in that suit is also involved in E.P. No.76 of 2008 in O.S. No.337 of 1989 and hence it may be appropriate to stay the trial of O.S. No.15 of 2008 until disposal of the claim made by respondent in E.P. No.76 of 2008 in O.S.No.337 of 1989 and hence petitioners may be permitted to move appropriate application for stay in O.S. No.15 of 2008. I make it clear that if O.P(C) No.740 of 2010 -: 5 :- the law so provides it will be open to the petitioners to move appropriate application in that regard in O.S. No.15 of 2008 and seek appropriate relief as provided under law. With the above observation petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv