IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 OP(C).No. 1228 of 2010(O) IA 4949/2010 IN OS.848/2009 OF ADDL.MUNSIFF'S COURT,IRINJALAKUDA PETITIONER: POOMAGALAM VADAKKUMKARA NSS KARAYOGAM NO.2931,VELLANGALLUR-680662,MUKUNDAPURAM TALUK, THRISSUR DISTRICT,REP.BY ITS SECRETARY,SRI.RAJMOHAN, UNNIPARAMBATH, VELLANGALLUR-680662,THRISSUR DIST., PRESIDENT SRI.RADHAKRISHNA MENON, VRINDHAVANAM, VADAKKUMKARA VILLAGE, VELLANGALLUR-680662,THRISSUR TREASURER SRI.KRISHNAKUMAR, CHALIPURATH, VELLANGALLUR-680662, THRISSUR DISTRICT, EXECUTIVE COMMITTEE MEMBER SRI.U.SURENDRAN, UNNIPARAMBATH, VELLANGALLUR-680 662, THRISSUR DISTRICT. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT: --------------- RADHAKRISHNA MENON, S/O.KALLIANI AMMA, KOODAMPILLY THARAYIL, VADAKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680662. ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 PHOTOSTAT COPY OF THE POLAINT IN O.S.NO.848 OF 2009 OF THE ADDITIONAL MUNSIFF'S COURT, IRINJALAKUDA DATED 13.7.2009. EXT.P2 PHOTOSTAT COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN THE SUIT DATED 20.10.2009. EXT.P3 PHOTOCOPY OF I.A.NO.4949 OF 2010 IN O.S.NO.848 OF 2009 DATED 14.12.2010. EXT.P4 PHOTOSTAT COPY OF THE OBJECTION FILED BY THE DEFENDANT DATED 15.12.2010. EXT.P5 PHOTOSTAT COPY OF THE ORDER OF THE LEARNED ADDITIONAL MUNSIFF IN I.A.NO.4949 OF 2010 IN O.S.NO.848 OF 2009 DATED 15.12.2010. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 1228 OF 2010 O ------------------------------------------------------ Dated this the 22nd day of February, 2011 JUDGMENT The petitioner filed O.S.No.848 of 2009 on the file of the Court of the Munsiff of Irinjalakuda against the respondent for recovery of possession of the plaint schedule property on the basis of title and for setting aside the purchase certificate issued in favour of the respondent/defendant. In the written statement filed by the defendant, a contention was taken that the plaintiff has not disclosed the legal status of the plaintiff. The cause title in the plaint would indicate that the plaintiff is the Karayogam. However, the defendant contended that no documents were produced to show that the Karayogam is a registered body. He also contended that since the plaintiff is not a registered body, the suit is not maintainable at the instance of the plaintiff representing the Karayogam. 2. Though a contention was taken in the written statement as mentioned above, no steps were taken by the plaintiff to file the suit in a representative capacity or to implead all the members of the O.P.(C) NO.1228 OF 2010 :: 2 :: Karayogam. A Commissioner was appointed to examine the witnesses. The parties were examined before the Commissioner. At that juncture, the plaintiff filed I.A.No.4949 of 2010 to convert the suit into a representative suit, the plaintiff representing the whole body of persons having similar interest. The application was opposed by the respondent/defendant. It was contended that the case was posted for taking steps. However, no steps were taken by the plaintiff. The application was filed belatedly after the evidence was commenced. 3. The court below dismissed I.A.No.4949 of 2010 only on the ground of delay. The court did not hold that the application is not maintainable or that the nature and character of the suit would be changed or prejudice would be caused to the defendant. 4. Heard Sri.T.S.Harikumar, the learned counsel appearing for the petitioner, and Sri.N.Subramaniam, the learned counsel appearing for the respondent. Sri.Subramaniam submitted that the present suit is barred by res judicata in view of the decision in the earlier suit. It is also submitted by him that if the application is allowed at this stage, great inconvenience and serious prejudice O.P.(C) NO.1228 OF 2010 :: 3 :: would be caused to the respondent. Learned counsel for the petitioner submitted that the inconvenience caused to the respondent can be compensated in terms of costs. 5. The only objection against allowing the application seems to be delay. I am of the view that the delay can be excused and the application can be allowed by awarding costs to the respondent. The suit is of the year 2009. If the suit is dismissed only on the ground of defect that the suit was not filed in a representative capacity, it would only result in multiplicity of suits. It is necessary to decide the suit on the merits with the proper parties on record. In the facts and circumstances, a suit under Order I Rule 8 of the Code of Civil Procedure is required. Therefore, I am inclined to allow I.A.No.4949 of 2010 on costs. For the aforesaid reasons, the Original Petition is allowed, the order passed by the court below is set aside and I.A.No.4949 of 2010 is allowed on condition that the petitioner shall pay costs of `5,000/- (Rupees Five thousand only) to the respondent within a period of one month. In case of default of payment of costs, the O.P.(C) NO.1228 OF 2010 :: 4 :: order passed by the court below will be in force and the Original Petition shall be treated as dismissed. (K.T.SANKARAN) Judge ahz/