IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 24TH JANUARY 2008 / 4TH MAGHA 1929 WP(C).No. 33020 of 2007(E) -------------------------------------- AGAINST THE ORDER DATED 23/10/2007 IN IA.NO.1802/2007 IN OS.197/2003 of MUNSIFF COURT, VADAKARA .................... PETITIONERS: ------------------- 1. P.K.KUMARAN, S/O.KANARAN, AGED 75 YEARS, PERANGACHERY HOUSE, NADAKKUTHAZHA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 2. RAMESAN, S/O.KUMARAN, BUSINESS, ASARINTAVIDA HOUSE, NADAKKUTHAZHA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.M.J.KURUVILLA SRI.R.PARTHASARATHY RESPONDENTS: ------------------------ 1. KOYALANKANDY KUMARI AMMA, W/O.PADMANABHA KURUP, AGED 56 YEARS, HOUSEWIFE, RESIDING AT PARATHINTAVIDA, NADAKKUTHAZHA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 2. PUTHIYOTTIL BINEESH, S/O.BALAKRISHNAN, DRIVER, AGED 22 YEARS, NADAKKUTHAZHA AMSOM DESOM, VATAKARA TALUK,KOZHIKODE DISTRICT, KERALA STATE. 3. KOLLANTAKANDIYIL RAJAN, S/O.KORU, AGED 38 YEARS, COOLIE, NADAKKUTHAZHA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 4. KOLLANTAKANDIYIL DINESH, S/O.KANNAN, AGED 40 YEARS, DRIVER, NADAKKUTHAZHA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. W.P.(C) NO.33020/2007 5. PUTHIYOTTIL BALAKRISHNAN, S/O.RAMAN NAIR, AGED 42 YEARS, PEON, NADAKKUTHAZHA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 6. KEEZHTHADI KUNHIRAMAN, S/O.KANARAN, NADAKKUTHAZHA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 7. KOLLARAKANDY KANNAN, S/O.CHERUMAN, NADAKKUTHAZHA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.M.C.RATNAKARAN SRI.P.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.33020/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE PLAINT. EXT.P2:- COPY OF THE WRITTEN STATEMENT DELIVERED BY THE DEFENDANTS 1 TO 4 EXT.P3:- COPY OF THE NOTICE OF THE SAID SUIT SIGNED BY COUNSEL FOR THE PLAINTIFF. EXT.P4:- COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION FOR IMPLEADMENT. EXT.P5:- COPY OF THE PETITION TO JOIN THE SUIT . EXT.P6:- COPY OF THE ORDER OF MUNSIFF, VATAKARA. /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 33020 OF 2007 = = = = = = = = = = = = = = = Dated this the 24th day of January, 2008. J U D G M E N T This writ petition is preferred against the order of the Munsiff, Vatakara in I.A.1802/07 in O.S.197/03. The suit is one with respect to a pathway. The question involved is whether it is a private pathway or a public pathway. The suit is instituted after notice under Order 1 Rule 8 CPC. The present writ petitioners approached the Court belatedly for getting themselves impleaded. The Court below found that the averment in the petition does not relate to the way in dispute in this case. I am at a loss to understand how the learned Munsiff has arrived at such a decision when it is clear that proper averments are not there in the affidavit. When a person wants to get impleaded under Order 1 Rule 8 CPC it is fundamental that at least necessary averments are made in the petition regarding the right he claims over the disputed way. It is absent here. But since the question involved is of W.P.C 33020 OF 2007 -:2:- a larger matter of a public pathway or a private way it is only desirable that an opportunity is given to the writ petitioners to file proper affidavits and the other side be permitted to file objections to the same and the matter be considered afresh and appropriate orders are passed. Therefore the order under challenge is set aside and the matter is remitted back to the Court below with permission to the present writ petitioners to file proper affidavits. The other side is also permitted to file objections or counter affidavit as the case may be and then the Court to consider it and pass appropriate orders. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-