IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 37296 of 2007(M) -------------------------- OS.141/2004 of ADDL.SUB COURT, THALASSERY .................... PETITIONER: -------------------- VALLANADATH DAIVATHAR, REPRESENTED BY MANAGING TRUSTEE, VALLANADATH DEVASWOM, (C.K.PRABHAKARAN NAMBIAR, AGED 76 YEARS, PATHIRIYAD AMSOM AND DESOM, VENGAD PANCHAYAT, P.O.PATHIRIYAD). BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENTS: ------------------------- 1. K.V.PADMAVATHI, W/O. NARAYANA MARAR, KAVATTAM AMBALAM, CHOYIKKANDY, P.O. NADAVAYAL, PANAMARAM, WYNAD DISTRICT. 2. K.V.VIJAYALAKSHMI, D/O. GOVINDA MARAR, AGED ABOUT 58 YEARS, NO OCCUPATION, EDAKKAD AMSOM, CHALA 12 KANDY DESOM, KANNUR TALUK. 3. K.V.VISWANATHAN, D/O. GOVINDA MARAR, AGED ABOUT 53 YEARS, NO OCCUPATION, EDAKKAD AMSOM, CHALA 12 KANDY DESOM, KANNUR DISTRICT. 4. K.C.VIMALA, D/O. GOVINDA MARAR, AGED ABOUT 48 YEARS, NO OCCUPATION, EDAKKAD AMSOM, CHALA 12 KANDY DESOM, KANNUR DISTRICT. 5. K.V.RAMACHANDRAN, S/O .KAMALAKSHI, MARASYAR, AGED BOUT 58 YEARS, EDATHILPARAMBA, MANGATTIDAM AMSOM, SANKARANELLUR DESOM, THALASSERI TALUK. Kss ..2/- ..2.... WPC.NO.37296/2007 M 6. K.V.THANKAMANI, D/O. KAMALAKSHI, MARASYAR, AGED ABOUT 55 YEARS, EDATHILPARAMBA, MANGATTIDAM AMSOM, SANKARANELLUR DESOM, THALASSERI TALUK. 7. V.SIVAKRISHNAN, S/O. VELAYUDA MARAR, AGED 49 YEARS, MANGATTIDAM AMSOM, SANKARANELLUR DESOM, THALASSERI TALUK. 8. K.V.RATNAVALLI, D/O .VELAYUD MARAR, AGED 44 YEARS, NO OCCUPATION, ALAYAD VEEDU, PANNIYOOR, POOMANGALAM, THALIPARAMBA. 9. K.V.MURALEEKRISHNAN, S/O .BALAMARAR, AGED 48 YEARS, NO OCCUPATION, ANIYARAM, NEAR MUCHILOT KAVU, P.O.PANOOR, THALASSERI TALUK. 10. K.V.MADHUSOODANAN, S/O. BALAMARAR, AGED 51 YEARS, NO OCCUPATION, ANIYARAM, NEAR MUCHILOT KAVE, P.O.PANOOR, THALASSERI TALUK. 11. THRIVIKRAMAN ALIAS RAJA VIKRAMAN, S/O. VASUDEVAN NAMBOODIRI, AGED 41 YEARS, NO OCCUPATION, PADUVILAYI AMSOM DESOM, THALASSERI TALUK. 12. N.KRISHNAN NAIR, S/O KRISHNAN NAIR, AGED ABOUT 68 YEARS, RTD. VILLAGE OFFICER, CHEMBATTA VEEDU, MANGATTIDAM AMSOM, SANKARANELLUR DESOM, THALASSERY TALUK. 13. A.RAJALAKSHMI, C/O P.V.PURUSHOTHAMAN, 'SREEPURAM', PADINHATTAM KOZHUVAL, P.O.NEELESWARAM, KASARAGOD. ADV. SRI.C.P.PEETHAMBARAN FOR R6 & 7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.37296/2007 M APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.141/2004 ON THE FILE OF SUB COURT, THALASSERI. EXT.P2: COPY OF THE MEMO FILED BY THE PLAINTIFF POINTING OUT THE PENDENCY OF AN APPLICATION. EXT.P3: COPY OF THE AMENDMENT APPLICATION FILED ON 9/11/2007 AS I.A.4437/2007. EXT.P4: COPY OF THE ORDER IS AMENDMENT APPLICATION I.A.4437/2007 DTD. 15/11/2007. EXT.P5: COPY OF THE ORDER IN I.A.4411/2007, DTD. 15/11/2007. EXT.P5(A): COPY OF THE I.A.1430/2007 IN O.S.141/04 FILED BEFORE SUB COURT, THALASSERI. EXT.P6: COPY OF THE RETURNED BATTA MEMO. EXT.P6(A): COPY OF THE ORDER ON THE REVERSE SIDE OF THE RETURNED MEMO. EXT.P7: COPY OF THE REVIEW PETITION NO.4410/2007. EXT.P8: COPY OF THE ORDER DISMISSING THE REVIEW PETITION NO.4410/2007 DTD. 20/11/2007. EXT.P9: COPY OF THE JUDGMENT IN WP(C)24216/07 DTD. 20/11/2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.37296 of 2007 ------------------------------- Dated this the 4th July, 2008. J U D G M E N T Petitioner is the plaintiff and respondents the defendants, in O.S.No.141 of 2004, on the file of Sub Court, Thalassery. Petitioner filed two applications before the trial court. Ext.P3 petition was filed under Rule 17 of Order VI of Code of Civil Procedure for amendment of the plaint. I.A.No.4410 of 2007 was filed to review the order setting 14th defendant ex parte. Under Exts.P4 and P8 orders, both the petitions were dismissed. This petition is filed under Article 227 of the Constitution of India to quash Exts.P4 and P5 orders. 2. The learned counsel appearing for the petitioner and contesting respondents 6 and 7 were heard. 3. 14th defendant was set ex parte. I.A.No.4410 of 2007 was filed to review that order contending that 14th defendant was wrongly set ex parte before service was completed. The learned Sub Judge under Ext.P8 order dismissed the review petition holding that W.P.(C) No.37296/2007 2 summons was served through courier and it is for the petitioner to serve summons through court and practically no relief was sought against 14th defendant and attempt is only to protract the trial of the suit. If the records establish that there was no personal service on 14th defendant, learned Sub Judge should have set aside the earlier order by reviewing it and issued summons to 14th defendant. It cannot be said that no relief is sought for against 14th defendant, when relief 'A' is against all defendants including 14th defendant. Therefore, Ext.P8 order is quashed. Learned Sub Judge is directed to issue fresh summons to the 14th defendant. It is made clear that petitioner shall take immediate steps to serve notice on 14th defendant, and if personal service is not possible, court shall order substitute service, as provided under Rule 20 of Order V of Code of Civil Procedure. 4. The amendment sought for under Ext.P3 petition includes one for deleting a portion of the sentence in paragraph 3 of the plaint, where there was a repetition. It was only a clerical error, and, therefore, learned Sub Judge should have allowed that amendment. Other amendment sought for is with regard to the description of the plaint schedule property, and that amendment was warranted, in view of the report submitted by the Commissioner. By W.P.(C) No.37296/2007 3 allowing the amendment, neither the character nor the nature of the plaint will be changed. In such circumstances, Ext.P4 order is quashed. Plaintiff is permitted to amend the plaint as sought for in I.A.No.4410/2007. Defendants are entitled to file additional written statement, if they choose. Learned Sub Judge is to dispose the suit expeditiously. Writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.