IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WP(C).No. 16994 of 2010(O) -------------------------- AGAINST THE ORDER IN IA 1991/2009 IN OS.221/2009 of ADDL.MUNSIFF COURT- II,NEYYATTINKARA .................... PETITIONER(S): --------------- NIRMALA, W/O. MADHU, AMBALATHU VILA PUTHEN VEEDU, ARAYOOR DESOM, CHENKAL VILLAGE. BY ADV. SRI.V.R.GOPU RESPONDENT(S): --------------- 1. VIMALAMBIKA, D/O. CISELY, AMBALATHU VILA VEEDU, ARAYOOR DESOM, CHENKAL VILLAGE. 2. JOHN, S/O. CHELLAPPAN NADAR, JITHU BHAVAN, AMABALATHU VILA VEEDU, ARAYOOR DESOM, CHENKAL VILLAGE. 3. VIJILA, W/O. JOHN, JITHU BHAVAN, AMABALATHU VILA VEEDU, ARAYOOR DESOM, CHENKAL VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.16994 of 2010 -------------------------------------- Dated this the 2nd day of June, 2010. JUDGMENT Petitioner challenges Ext.P6, order on I.A.No.1991 of 2009 refusing to implead her as additional defendant No.4 in the suit, O.S.No.221 of 2009 of the court of learned Additional Munsiff-II, Neyyattinkara. That is a suit filed by respondent No.1 seeking reliefs based on prescriptive right of easement she claimed over plaint C schedule pathway which according to her goes through properties of respondent Nos.2 and 3 and defendant No.3, husband of the petitioner. It is also her case that herself and predecessors-in-interest were gaining access to plaint A schedule belonging to her through the said pathway. Plaint B schedule is the portion where defendants are said to have caused obstruction. Prayer is for declaration of right of easement by prescription, mandatory injunction for removal of obstruction and for prohibitory injunction. Respondent Nos.2 and 3 remained absent and were set exparte, as per the submission of learned counsel for petitioner. Defendant No.3 has also been set exparte. According to the petitioner, since defendant No.3 is working in Malasia and is not able to come, she is looking after the property of defendant No.3, her husband. It is her case that respondent No.1 has instituted the suit only for and on behalf of respondent No.2 who failed in his attempt to get a pathway opened through the property of defendant No.3 as per the order of the local authority. The suit is result of collusion between respondent Nos.1 to 3. In the WP(C) No.16994/2010 2 circumstances petitioner wanted herself to be impleaded as additional defendant No.4. That application was opposed by respondent No.1 stating that she does not seek any relief against petitioner and that relief is sought against respondent Nos.2 and 3 and defendant No.3. Learned Additional Munsiff has dismissed the application stating that petitioner is not a servient owner nor has a servient heritage and hence she is not required to be a party in the suit. Learned counsel contends that order of learned Munsiff is not correct. 2. Even as per the version of petitioner, she has no independent right or possession of any portion of plaint B schedule for, it belongs to her husband she being only in management of property on behalf of her husband in his absence. Respondent No.1/plaintiff who is the master of the suit is not seeking any relief against petitioner. As such it is not necessary that she must be impleaded in the suit as if she is a necessary party in the sense that her presence in the suit is necessary for decision of the dispute involved. As such I do not find reason to interfere with the order under challenge. If the petitioner seeks to represent her husband/defendant No.3 who on account of being abroad was not able to appear in court, to set aside the exparte order against defendant No.3 for appropriate reasons and to contest the case on behalf of defendant No.3, that is a different matter. It is open to the petitioner to move such application before learned Additional Munsiff if she is otherwise entitled to that course. Learned counsel for petitioner states that since defendant No.3 is abroad petitioner is not able to get a power of attorney immediately to be presented along with application to set aside the exparte order as against WP(C) No.16994/2010 3 defendant No.3 representing defendant No.3 as his agent. The decisions on the point say that a written authority is not required to be produced at the time of institution of a proceeding and that even oral authority is sufficient. It is sufficient that written authority is produced in the course of proceedings. These are matters which the learned Munsiff has to decide at the appropriate stage. I make it clear that if otherwise entitled, it will be open to the petitioner to move appropriate application to set aside exparte order against defendant No.3 as his agent if she has oral instruction in that way. If any such application is made learned Additional Munsiff shall consider that application on merit and pass appropriate orders. 3. It is submitted by learned counsel that exparte evidence has been recorded in the case and that the case is posted for hearing on 09.06.2010. Having regard to the facts and circumstances of the case I direct learned Additional Munsiff to postpone disposal of the case to a date after 17.06.2010. With the above observation and direction this Writ Petition is closed. THOMAS P.JOSEPH, Judge. cks