IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 OP(C).No. 1198 of 2010(O) ------------------------------------- AGAINST THE ORDER IN IA 2170/2010 IN OS.164/2008 OF MUNSIFF COURT, PERUMBAVOOR ....................... PETITIONER: ------------------- C.Y.PAULOSE, S/O.YOHANNAN, AGED 58, CHEERATHUVEEDU, PANNIKUZHI, PUTHENKURIZU VILLAGE. BY ADVS. SRI.G.KRISHNAKUMAR, SMT.M.P.RETHNAM, SRI.P.H.SHAJI (THRIKKAKARA), SRI.TITTO THOMAS. RESPONDENT(S): ------------------------ 1. C.Y.SOSAMMA, W/O.THANKACHAN, AGED 63, KANGARAMATTATHIL, PAMPAKKUDA - 686 667. 2. C.Y.ISSAC, S/O.YOHANNAN, AGED 60, CHERETHU HOUSE, PANNIKUZHI, PUTHENKURIZU VILLAGE - 682 308. 3. C.Y.ANITHAKUMARI, W/O.VARGHESE, AGED 53, PUZHUKKALIL, KARUKADAM KARA, KOTHAMANGALAM VILLAGE. PIN - 686 691. R1, 2 & 3 BY ADVS. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE, SMT.V.T.LITHA, SMT.N.ASWATHY, SMT.DIVYA KRISHNAN, SMT.ACHU SUBHA ABRAHAM. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG OP(C) NO.1198/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.164/2008 ON THE FILE OF MUNSIFF COURT, PERUMBAVOOR. P2: COPY OF THE I.A.2170/2008 IN O.S.164/2008 ON THE FILE OF MUNSIFF COURT, PERUMBAVOOR. P3: ORDER DTD. 4/12/2010 IN I.A.2170/2010 ON THE FILE OF MUNSIFF COURT, PERUMBAVOOR. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE DG THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1198 of 2010 ==================================== Dated this the 08th day of December, 2011 J U D G M E N T Petitioner is the plaintiff in O.S. No.164 of 2008 of the court of learned Munsiff, Perumbavoor. That is a suit for partition of plaint A to C schedule items. Petitioner and respondents are the children of one Yohannan. According to the petitioner, plaint A and B schedules belonged to his father, Yohannan while plaint C schedule belonged to his mother, both of whom are no more. Hence the prayer for partition. Respondents contended that in respect of plaint B schedule, the father had executed a Will in favour of Anson C.Issac, S/o.second respondent-second defendant who, in turn, sold that property to one Yohannan. Petitioner at a later stage filed I.A. No.2170 of 2010 to implead the said Anson C.Issac and Yohannan as additional defendants 4 and 5. That application along with two other applications for removing the case from the list and to appoint a survey commission was dismissed by Ext.P3, common order dated 04.12.2010. Exhibit P3, order to the extent it concerns I.A. No.2170 of 2010 is under challenge in this proceeding. O.P(C) No.1198 of 2010 -: 2 :- 2. It is pointed out by learned counsel that it was only when the case was taken for trial in the list that the senior lawyer who was appearing for petitioner noticed the defect in not impleading necessary parties. 3. Learned counsel for respondents contended that respondents had filed written statement in August, 2008 stating about the Will in favour of Anson C.Issac and his transferring the property to Yohannan but no steps were taken by petitioner on time. In the meantime the suit was dismissed for default and restored to file in August, 2010. It is thereafter that in November, 2010 petitioner chose to file I.A. No.2170 of 2010. 4. Assuming that there was delay in filing the application that by itself need not be a reason to disallow impleading having regard to the contentions raised by the parties. Laches on the part of petitioner could be corrected by the common curative of costs. Hence I am inclined allow the application for impleadment but subject to payment of costs. Original Petition is allowed. Exhibit P3, order to the extent it concerns I.A. No.2170 of 2010 (O.S.No.164 of 2008 of the court of learned Sub Judge, Perumbvoor) will stand set aside and that application stand allowed on condition that petitioner deposits in O.P(C) No.1198 of 2010 -: 3 :- the court below for payment to the respondents Rs.2,500/- (Rupees Two thousand and five hundred only) as costs within a month from this day. The cost if deposited shall be shared by respondents 1 and 2 equally. On the condition being complied, I.A. No.2170 of 2010 will stand allowed and additional defendants 4 and 5 impleaded. In case condition is not complied, this Original Petition will stand dismissed in confirmation of Ext.P3, order to the extent it concerns I.A. No.2170 of 2010. THOMAS P. JOSEPH, JUDGE. vsv