IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 OP(C).No. 1038 of 2010(O) ------------------------- OS.'293/2009 of ADDL.MUNSIFF COURT, PALAKKAD .................... PETITIONER ------------------------------ P.ARAVINDAKSHAN,S/O.VIJAYALAKSHMI AMMA @ VIJAYAVALLIAMMA,AGED 60 YEARS,R/AT PLOT NI.126, 4TH LANE , R.R.NAGAR, CHENNAI,TAMILNADU. BY ADV. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN SMT.P.G.BABITHA RESPONDENTS: --------------- 1. P.RAJALAKSHMI,D/O.CHINNAYAMMA (LATE), AGED 63 YEARS,PANDIARATHI HOUSE,PUTHUR,PALAKKAD 678 005. 2. P.LEELA,D/O.CHINNAYAMMA (LATE), AGED 63 YEARS,PANDARATHI HOUSE,PUTHUR,PALAKKAD 678 005. 3. P.SEETHUMADHAVAN,S/O.CHINNAYAMMA(LATE) AGED 60 YEARS,KARUNA,PLOT NO.187,ATOMIC CO- OPERATIVE SOCIETY,SECTION 17, NERUL,NAVI MUMBAI- 400 706. 4. BALAKRISHNAN,S/O.LATE NARAYANAN,AGED 59 YEARS,SARASWATHI SADANAM,AYYAPPANKAVU,EDATHARA, PALAKKAD 678611. 5. ARAVINDAKSHAN,S/O.LATE NARAYANAN,AGED 57 YEARS,SARASWATHI SADANAM,AYYAPPANKAVU,EDATHARA, PALAKKAD 678611. 6. MOHANAN,S/O.LATE NARAYANAN,AGED 55 YEARS,SARASWATHI SADANAM,AYYAPPANKAVU,EDATHARA, PALAKKAD 678611. 7. RADHAKRISHNAN(DIED)S/O.LATE NARAYANAN, AGED 55 YEARS,SARASWATHI SADANAM, AYYAPPANKAVU,EDATHARA,PALAKKAD 678611. 8. SATHYAN,S/O.LATE NARAYANAN, AGED 55 YEARS,SARASWATHI SADANAM, AYYAPPANKAVU,EDATHARA,PALAKKAD 678611. 9. THANKAM,W/O.P.BALAKRISHNAN (LATE), AGED 48 YEARS,KRISHNA VILAS, AKG NAGAR, KADAMKODE,KARINGARAPULLY (PO),PALAKKAD 678 559. 10. VINOD,S/O.P.BALAKRISHNAN (LATE), AGED 48 YEARS,KRISHNA VILAS, AKG NAGAR, KADAMKODE,KARINGARAPULLY (PO),PALAKKAD 678 559. 11. VIJAY,S/O.P.BALAKRISHNAN (LATE), AGED 48 YEARS,KRISHNA VILAS, AKG NAGAR, KADAMKODE,KARINGARAPULLY (PO),PALAKKAD 678 559. 12. RAMACHANDRAN,S/O.VIJAYALAKSHMI AMMA @ VIJAYAVALLI AMMA, AGED 63 YEARS, CHETHANA,AISWARYA AVENUE,PUTHUR ,PALAKKAD 678 005. 13. VENUNATHAN,S/O.VIJAYALAKSHMI AMMA @ VIJAYAVALLI AMMA, AGED 58 YEARS, POST BOX NO.976,DUBAI,UAE(OR),C/O.GIRIJA SAIDHARAN, A3-215,BLOCK NO.10,KAILASH DHAM, SECTOR 50, NOIDA , UTHAR PRADESH 263 001. 14. GIRIJA SAIDHARAN, A3-215,BLOCK NO.10,KAILAS DHAM, SECTOR 50, NOIDA , UTHAR PRADESH 263 001. 15. JAMUNA,W/O.LATE SASIKUMAR, AGED 40 YEARS,NAMBOODIRI LANE,PUTHUR, PALAKKAD 678 005. 16. VINITH,S/O.LATE SASIKUMAR, AGED 21 YEARS,NAMBOODIRI LANE,PUTHUR, PALAKKAD 678 005. 17. ANITH (MINOR),S/O.LATE SASIKUMAR, AGED 12 YEARS,REP.BY NEXT FRIEND & NATURAL GUARDIAN MOTHER, 15TH RESPONDENT JAMUNA, NAMBOODIRI LANE,PUTHUR,PALAKKAD 678 005. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1038 of 2010 --------------------------------------- Dated this 08th day of December, 2010 JUDGMENT Notice to respondents is dispensed with in view of the order I propose to pass. 2. In a suit for partition (O.S.No.293 of 2009 of the court of learned Additional Munsiff, Palakkad) defendant No.7 remained ex parte. Later, he expired. Thereon petitioner filed I.A.Nos.2868 and 2869 of 2010 for impleadment of legal representatives of deceased defendant No.7 and for consequential amendment. Learned counsel submits that other defendants did not raised any objection to the application. Learned Additional Munsiff invoked subrule 4 of Rule 4 of Order XXII of the Code of Civil Procedure (for short, “the Code”) and exempted petitioner from impleading legal representatives of deceased defendant No.7 for the reason that defendant No.7 remained ex parte. That order is under challenge. 3. Learned counsel submits that law empowered learned Munsiff to exempt petitioner from impleading legal representatives of a deceased defendant who either failed to file a written statement or having filed written statement failed to appear in court at the time of hearing. In the present case impleading was O.P(C).No.1038 of 2010 : 2 : requested for, to avoid future complications. Learned counsel submits that it is not a case where deceased defendant No.7 had either failed to file written statement or, having filed written statement failed to appear in court at the time of hearing to contest the case. It is also submitted by learned counsel that since the suit is for partition and no preliminary decree has so far been passed, it is possible that after final decree is passed a few year later and in the execution proceedings legal representatives of deceased defendant No.7 might either come forward to set aside the ex parte decree or, raise other contentions in the executing court which might further complicate the situation and prolong the proceeding. 4. Though, in view of the order I propose to pass I do not intend to consider that argument. I find some weight in the apprehension of petitioner bearing in mind that it is a suit of partition involving property having high stakes, and the possible contentions that parties who are in possession might raise in the subsequent proceeding. It would appear that learned Munsiff has not considered these aspects of the matter while passing the impugned order. I am inclined to set aside the order and remit the applications to learned Munsiff for fresh decision bearing in mind future complications that might arise in case the legal representatives of deceased defendant No.7 are not brought on O.P(C).No.1038 of 2010 : 3 : record. Resultantly this petition is allowed and the impugned order is set aside. I.A.Nos.2868 and 2869 of 2010 are remitted to the court of learned Additional Munsiff for fresh consideration and decision. (THOMAS P JOSEPH, JUDGE) Sbna/-