IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 WP(C).No. 19374 of 2010(O) -------------------------- OS.40/2007 of MUNSIFF-MAGISTRATE COURT,MANNARKAD .................... PETITIONER(S): --------------- 1. NAGARATHINAM , AGED 56 YEARS W/O.SIVARAJ, RESIDING AT K.V.S .THANNERTHOTTATHIL, 1/4 TVS NAGAR ROAD, GOUNDER PALAYAM, COIMBATORE TALUK, COIMBATORE DISTRICT. 2. DHANALAKSHMI, AGED 61 YEARS, W/O.VENKITTARAMACHETTIYAR,REPRESENTED BY GUARDIAN NAGARATHINA, AGED 56 YEARS, W/O.SIVARAJ, RESIDING AT K.V.S THANNERTHOTTATHIL, 1/4 TVS NAGAR ROAD, GOUNDER PALAYAM, COIMBATORE TALUK, COIMBATORE DISTRICT. BY ADV. SRI.C.K.RAMAKRISHNAN RESPONDENT(S): --------------- DEVARAJ, AGED 58 YEARS, FARMER S/O.P.A.PAZHANISWAMI, CHETTIYAR, RESIDING AT BHOOTHIVAZHI, AGALI AMSOM DESOM 'MANNARKKAD TALUK, PALAKKAD DISTRICT 678 581. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.19374 of 2010 -------------------------------------- Dated this the 22nd day of June, 2010. JUDGMENT This Writ Petition is in challenge of Ext.P3, judgment and decree of learned Munsiff-Magistrate, Mannarkkad in O.S.No.40 of 2007. Petitioners/plaintiffs sued respondent/defendant for partition and separate possession of suit property. Respondent in his written statement contended that the suit is bad for non-joinder of necessary parties and stated the persons who according to him are required to be made parties in the suit. Petitioners did not take any action for impleadment of necessary parties. Learned Munsiff accepted contention raised by respondent and non-suited petitioners. After about two years and three months petitioners, without invoking the statutory remedy of appeal have chosen to come to this Court seeking invocation of Article 227 of the Constitution stating that judgment and decree under challenge are perverse and do not conform the requirements of law and hence the same are exfacie illegal which is required to be corrected by this Court invoking Article 227 of the Constitution. Learned counsel contends that if at all the trial court found that necessary parties are to be impleaded, proper course was to adjourn the case to facilitate petitioners doing so. Reliance is placed on the decision in Chellappan v. Krishnankutty (2001 (3) KLT 403) to WP(C) No.19374/2010 2 buttress his contention that in such a situation a proceeding under Article 227 of the Constitution would lie. Reliance is also placed on the decision in Saraswathy v. Suhra Beevi [1991 (1) KLT SN.71 (at page 51)]. 2. The Constitution Bench of the Supreme Court in Naresh v. State of Maharashtra (AIR 1967 SC 1) has held that a writ of certiorari cannot lie against the judgment of a court. Ofcourse the Supreme Court in Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] has stated in which all circumstances a proceeding under Article 227 of the Constitution would lie against an order in a pending proceeding. In this case the suit was dismissed by judgment and decree dated 18.03.2008 for the reason that necessary parties are not impleaded. It is not as if petitioners were taken by surprise about the finding regarding non-impleadment of necessary parties as respondent had specifically raised a contention in that behalf in his written statement and inspite of that petitioners thought that it is not necessary to implead necessary parties. Order 1 Rule 9 of the Code of Civil Procedure (for short, “the Code”) relied on by the learned counsel ofcourse state that no suit shall be defeated by reason of mis-joinder or non-joinder of parties but the proviso states that the said provision does not apply to non-joinder of necessary parties. As such, it was within the power of court to dismiss the suit for non- joinder of necessary parties. True in Chellappan v. Krishnankutty (supra) it is stated that under Order 1 Rule 10 of the Code, the court may at any WP(C) No.19374/2010 3 stage of the proceedings either upon or without the application of either party order impleadment of necessary parties. Assuming that learned Munsiff could have given opportunity to the petitioners to implead necessary parties, it is not as if the court was compelled to do so and as such there is any violation of the statutory provision and hence the decision of the court below is per se illegal. Even in such circumstances, proper course open to the petitioners is to invoke the statutory remedy. The Code provides for an appeal against judgment and decree of the learned Munsiff on whatever grounds that are available to the petitioners. The attempt here is to circumvent the period of limitation in filing an appeal by filing a Writ Petition to invoke jurisdiction of this Court under Article 227 of the Constitution. I am afraid that attempt cannot be encouraged. 3. On going through the judgment and decree under challenge I am not satisfied that this is a case where jurisdiction under Article 227 of the Constitution is to be invoked. Leaving the petitioners to their statutory remedy as provided under law, if they are entitled to that course, this Writ Petition has to fail. Writ Petition is accordingly dismissed. THOMAS P.JOSEPH, Judge. cks