IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 AS.No. 627 of 1997() -------------------- OS.1/1995 of SUB COURT, THIRUVALLA .................... APPELLANT/PLAINTIFF --------------- BIJU VARGHESE PUTHEN PARAMBIL VEETTIL ANAPARAMBIL NORTH POSTAL ATHIRTHI THALAVADI VILLAGE, THALAVADI TALUK BY ADV. SRI.S.SUBHASH CHAND RESPONDENTS/DEFENDANTS ------------------------------------ 1. MARIYAMMA CHACKO KALLAMANNIL VEETTIL PADINJATTOTHARA, KUTTOOR VILLAGE THIRUVALLA TALUK 2. LAISAMMA, KALLAMANNIL VEETTIL PADINJATTOTHARA M KUTTOOR VILLAGE THIRUVALLA TALUK 3. LISIYAMMA, KALLAMANNIL VEETTIL PADINJATTOTHARA, KUTTOOR VILLAGE THIRUVALLA TALUK. 4. MOHAN CHACKO, KALLAMANNIL VEETTIL, PADINJATTOTHARA, KUTTOOR VILLAGE, THIRUVALLA TALUK. 5. LAILA, KALLAMANNIL VEETTIL * PADINJATTOTHARA , KUTTOOR VILLAGE THIRUVALLA TALUK. A.S.627/1997 6. LOVELY * KALLAMANNIL VEETTIL PADINJATTOTHARA , KUTTOOR VILLAGE THIRUVALLA TALUK 7. LOUIES * KALLAMANNIL VEETTIL PADINJATTOTHARA , KUTTOOR VILLAGE THIRUVALLA TALUK 8. OMANA, KALLAMANNIL VEETTIL * PADINJATTOTHARA , KUTTOOR VILLAGE THIRUVALLA TALUK * Appeal so far as it relates to R5 to R8 dismissed for non-prosecution vide order dated 5-6-2007. BY ADV. SRI.A.K.ALEX THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON18/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.627 OF 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of September, 2008 JUDGMENT Sri.Subhash Chand, learned counsel for the appellant and Sri.A.K.Alex, learned counsel for the respondents have addressed me extensively. Having considered the submissions and having gone through the impugned judgment and having re-appraised the evidence which was on record before the court below, I feel that the request of the learned counsel that one more opportunity be afforded to the appellants for rectifying the defects in the plaint by impleading all necessary parties and also by incorporating necessary averments regarding the constitution of the partnership and also regarding the assets of late Mohan Chacko which came to be hands of the defendants, can be granted. But at the same time, I find from the proceedings paper that two opportunities were given to the appellants for taking steps in the context of issue No.2 regarding non-joinder of necessary parties. Therefore I am not inclined to grant the opportunity sought for except by imposing strict terms. The plaint claim as of now will be AS.No.627/97 2 more than 35,000/- and I feel that in the circumstances of the case Rs. 3500/- will be adequate cost to compensate the respondents for the inconveniences to which they will be put by the proposed order of remand at this distance of time. Accordingly, I set aside the judgment and decree and remand the suit- O.S.No.1/1995 back to the trial court on condition that the appellant pays to the respondents either directly or through counsel appearing before this court a sum of Rs. 3500/- within six weeks from today. The order of remand will become operative only if cost is paid within the stipulated time and memo is filed before this court. Once cost is paid and memo is filed, the impugned judgment and decree will stand set aside and the suit- O.S.No.1/1995 will go back to the court below. The court below will entertain the applications for amendment of plaint as well as for impleademnt of additional parties, if such applications are filed by the appellant plaintiff before the court below within one month of receiving copy of this judgment. Application for impleadment as well as application for amendment will be taken up and disposed of by the learned Subordinate Judge in accordance with law. AS.No.627/97 3 The suit being a very old suit of the year 1992, the learned Subordinate Judge will expedite matters and ensure that the suit is finally disposed of at the earliest. Refund the full court fee paid on the appeal memorandum to the counsel for the appellant. It is noticed that the appeal was dismissed by order dated 5-06-2007 as against respondents 5 to 8. That order will stand confirmed. It is therefore clarified that the above order of remand will operate only as against the other respondents in the appeal. PIUS.C.KURIAKOSE JUDGE sv. AS.No.627/97 4