IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 WP(C).No. 32723 of 2009(O) -------------------------- AGAINST THE ORDER IN IA.828/2008 IN OS.229/2005 of MUNSIFF COURT,CHENGANNUR .................... PETITIONER --------------- THOMAS K.GEORGE, AGED 71 YEARS, S/O.GEORGE, KADUKKINETHU KAVANAL HOUSE, MUZHUKEER KEEZH MURI, THIRUVANVANDOOR VILLAGE, CHENGANNUR TALUK. BY ADV. SRI. K.SHAJ SRI.L.RAJ MOHAN SRI.SAJJU.S RESPONDENTS --------------- 1. THOMAS KUTTY, AGED 49 YEARS, S/O.ABRAHAM, MELETHU TIBY VILLA, MAZHUKEER KEEZH MURI, THIRUVANVANDOOR VILLAGE, CHENGANNUR TALUK. 2. LISSI, AGED 46 YEARS, W/O.THOMASKUTTY, MELETHU TIBY VILLA, MAZHUKEER KEEZH MURI, THIRUVANVANDOOR VILLAGE, CHENGANNUR TALUK. 3. K.V.VARGHESE, AGED 61 YEARS, S/O.K.T.VARGHESE, KAVANAL HOUSE, MAZHUKEER KEEZH MURI, THIRUVANVANDOOR VILLAGE, CHENGANNUR TALUK. ADV. SRI.P.RAVINDRAN, SENIOR ADVOCATE FOR R1 & 2 SMT.APARNA RAJAN FOR R1 & 2 SRI.JOSHI N.THOMAS FOR R3 SRI.P.DEEPAK FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : POWER OF ATTORNEY EXECUTED BY THE SAID JACOB GEORGE IN FAVOUR OF THE PETITIONER EXHIBIT P2 : PLAINT FILED BY THE PETITIONER IN O.S.229 OF 2005 ON THE FILE OF THE MUNSIFF'S COURT, CHENGANNUR EXHIBIT P3 : I.A.No.828 OF 2008 FOR TRANSPOSING 4th DEFENDANT AS ADDITIONAL PLAINTIFF FILED IN O.S.229/05 ON the FILE OF THE MUNSIFF'S COURT, CHENGANNUR EXHIBIT P4 : ORDER DATED 13-08-2009 IN I.A.No.828 OF 2008 IN O.S.NO.229/05 OF THE MUNSIFF'S COURT, CHENGANNUR RESPONDENTS EXHIBITS: EXHIBIT R1(a) : WRITTEN STATEMENT FILED BY THE RESPONDENTS IN O.S.No.229/05 OF the MUNSIFF COURT, CHENGANNUR EXHIBIT R1(b) : APPLICATION FILED IN O.S.No.229/05 OF THE MUNSIFF COURT, CHENGANNUR DATED 13-06-2008 EXHIBIT R1(c) : COUNTER AFFIDAVIT FILED IN O.S.No.229/05 OF THE MUNSIFF COURT, CHENGANNUR DATED 27- 08-2008 EXHIBIT R1(d) : I.A.No.827/08 DATED 13-06-08 IN O.S.No.229/05 OF the MUNSIFF'S COURT, CHENGANNUR EXHIBIT R1(e) : DETAILED COUNTER AFFIDAVIT TO I.A.No.827/08 IN O.S.No.229/05 OF THE MUNSIFF'S COURT, CHENGANNUR DATED 27-08-08 True copy P.A. To Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.32723 of 2009 --------------------------------------- Dated this 01st day of June, 2010 JUDGMENT Writ petition is in challenge of Ext.P4, order declining permission to “transpose” defendant No.4 (who is not a party in this revision) as supplemental plaintiff No.2. Petitioner/original plaintiff, brother of defendant No.4 filed the suit in respect of property of defendant No.4 for fixation of boundary and other reliefs. In paragraph 1 of the plaint he stated that suit property belonged to his brother, defendant No.4 who then was working and staying in the United States and that property is being possessed and enjoyed by the petitioner/original plaintiff on behalf of defendant No.4. It is also stated in paragraph 1 of the plaint that as and when required, necessary application would filed to transpose defendant No.4 as additional plaintiff. Respondent Nos.1 to 3 in the written statement disputed authority of petitioner to institute the suit in respect of property belonging to defendant No.4 without proper authority. It would appear that power of attorney allegedly executed by defendant No.4 in favour of petitioner was produced in the trial court which was objected by respondent Nos.1 to 3. In the meantime petitioner filed application under Section W.P.C.No.32723 of 2009 : 2 : 151 of the Code of Civil Procedure (for short, “the Code”) stating the circumstance under which he happened to file the suit on behalf of defendant No.4 and requesting learned Munsiff to “transpose” defendant No.4 as supplemental plaintiff No.2. That application was opposed by respondent Nos.1 to 3 obviously on the ground that on the statements made in the application, no transposition as per Order 23 Rule 1(A) of the Code would arise as petitioner has neither withdrawn nor abandoned the suit. Learned Munsiff was impressed by that contention and dismissed the application vide Ext.P4, order. That order is under challenge in this proceeding. Learned counsel for petitioner contends that though the section quoted in the application was section 151 of the Code and though the word “transpose” happened to be used in the application in the relief portion it was an application under Order 1 Rule 10(2) of the Code requesting the court to delete defendant No.4 from the array of defendants and to implead him as supplemental plaintiff No.2 since he is the owner of the suit property and therefore is a necessary party as a plaintiff. Learned counsel for respondent Nos.1 to 3 on the other hand contend that Ext.P4, order is valid and proper in so far as request made by the petitioner was to 'transpose' defendant No.4 and in the absence of circumstances allowing transposition under Order 23 Rule 1(a) of W.P.C.No.32723 of 2009 : 3 : the Code learned Munsiff was justified in rejecting the plaint. Reliance is placed on the decision in Abraham Vs. Antony Mathew (2007(1) KLT 857). 2. It is true that as admitted by both sides the application is filed under section 151 of the Code and the phraseology used in the application is to “transpose” defendant No.4 as supplemental plaintiff No.2. But time and again it has been held that misquoting of the section or, incorrect use of the phraseology shall not deter the court from considering the application on its merit understanding its real purport. Here, as seen from paragraph 1 of the plaint the suit was filed by petitioner certainly for and on behalf of defendant No.4 for the reason that the latter was staying in the United States in connection with his employment and as caretaker of the property petitioner is entitled to file the suit for and on behalf of defendant No.4. In other words it is a suit filed by the petitioner for and on behalf of defendant No.4 in his absence. For the purpose of institution of the suit a written authority was not essential to be produced and even oral authority was sufficient (See Narayanan Nair Vs. John Kurian (1988 (1) KLT 673)). Here, petitioner had produced a power of attorney allegedly executed by defendant No.4 which of course was objected by respondent Nos.1 to 3. Then came application for “transposition”. W.P.C.No.32723 of 2009 : 4 : It is true, going by Order 23 Rule 1(A) of the Code in its literal sense transposition is not permissible since none of the contingency stated therein has arisen in so far as petitioner is vigorously prosecuting the case. But his prayer is only that the true owner may be deleted from the array of defendants and impleaded as supplemental plaintiff No.2. That prayer can be considered under Order 1 Rule 10(2) of the Code. That provision enabled the court, even without a motion from the side of the party to strike out unnecessary parties and implead necessary parties. As such, I am persuaded to think that learned Munsiff was not correct in treating the application as one under Order 23 Rule 1(A) of the Code merely for the use of expression “transpose” in the application and dismissing the same. The application ought to have been considered under Order 1 Rule 10(2) of the Code. 3. It is contended by learned counsel for respondent Nos.1 and 2 that defendant No.4 continues to be ex parte in the suit. I am persuaded to think that even if defendant No.4 remained ex parte that did not prevent the court from invoking its power under Order 1 Rule 10(2) of the Code in the circumstances I have stated deleting defendant No.4 from the array of defendants and joining him as plaintiff No.2 in the suit. Having regard to the circumstances I am inclined to allow the application filed by W.P.C.No.32723 of 2009 : 5 : petitioner on the strength of power of attorney produced in this proceeding which is not disputed by learned counsel for respondent Nos.1 to 3. Resultantly the writ petition is allowed in the following lines: (i) I.A.No.828 of 2008 in O.S.No.229 of 2005 of the court of learned Munsiff, Chengannur will stand allowed. (ii) Defendant No.4 is deleted from the array of defendants and is impleaded as supplemental plaintiff No.2. Office of the court below shall carry out the amendment in the cause title. (THOMAS P JOSEPH, JUDGE) Sbna/-