IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 WP(C).No. 34426 of 2007(W) --------------------------------------- (I.A. NO. 2882/2007 IN O.S.NO.66/2005 OF SUB COURT, THALASSERY) .................... PETITIONER/PETITIONER IN I.A. 2882/07 IN O.S. 66/05 SUB COURT, THALASSERY: --------------------------------------------------------------------------------------------------------------------- A.K.NATARAJAN, S/O. NARAYANAN NAMBIAR, AGED 61 YEARS, PENSIONER, RESIDING AT SREEKOVIL, VADAKARA AMSOM, DESOM, P.O, VADAKARA, VATAKARA TALUK. BY ADVS. MR.B.KRISHNAN, MR.R.PARTHASARATHY. RESPONDENTS/RESPONDENTS IN I.A.2882/07/PLAINTIFFS & DEFENDANTS IN O.S. 66/2005, SUB COURT, THALASSERY: ---------------------------------------------------------------------------------------------------------------- 1. A.K.SANKARAN NAMBIAR, S/O. SANKARAN ADIYODI, AGED 80 YEARS, OCCUPATION NIL, RESIDING AT VELLORE AMSOM, DESOM, MATHAMANGALAM, PIN – 670 306, TALIPARAMBA. 2. A.K.PRABHAKARAN NAMBIAR, S/O. NINKILERI KUNHIKRISHNAN NAMBIAR, AGED 60 YEARS, NO OCCUPATION, 'SREE NILAYAM', KANDAKAMKUNNU, AYITHRA MAMBARAM DESOM, PIN – 670 643,THALASSERY TALUK. 3. KUTTIATTOOR CHATHOTH JAYAPALAN, S/O. NARAYANAN NAMBIAR, AGED 52 YEARS, 'PARVATHI VILAS', KOTTAYAM AMSOM, ERUVATTY DESOM, P.O.KOTTAYAMPOYIL,PIN – 670 691, 4. VADAKKAYIL BALAN, S/O. GOVINDAN, AGED 45, BUSINESS, RESIDING AT KADIRUR AMSOM, PONNIAM DESOM, THALASSERY TALUK, PIN – 670 641. W.P.(C). NO.34426/2007-W: 5. CHERUVALATH MOOLAM PREETHA, W/O. BALAN, AGED 37 YEARS, OCCUPATION NIL, RESIDING AT KADIRUR AMSOM, PONNIAM DESOM, PIN – 670 641, THALASSERY TALUK. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34426/2007-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 66/05 ON THE FILE OF THE SUB COURT, THALASSERY, DT. 02/02/2005. EXT.P.2: COPY OF THE WRITTEN STATEMENT FILED BY 1ST DEFENDANT IN THE ABOVE SUIT, DT. 22/07/2005. EXT.P.3: COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 2 AND 3 IN THE ABOVE SUIT, DT. 23/07/2005. EXT.P.4: COPY OF THE AFFIDAVIT IN SUPPORT OF PETITION TO IMPLEAD PETITIONER AS 3RD PLAINTIFF, DT. 06/08/2007. EXT.P.5: COPY OF THE COUNTER FILED BY R.4. IN THE ABOVE PETITION (D2), DT. 14/08/2007. EXT.P.6: COPY OF THE CERTIFIED COPY OF ORDER IN I.A. 2882/07 IN O.S. 66/2005 ON THE FILE OF THE SUB COURT, THALASSERY DT. 16/08/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. --------------------------------------------- W.P.(C).No.34426 of 2007 --------------------------------------------- Dated this the 9th day of March, 2010 JUDGMENT Writ petition is by a third party to a suit whose application for impleadment as an additional plaintiff in the suit was dismissed by the learned Sub Judge, Thalassery. Suit was filed by two persons, one claiming to be the senior most member and another as 'ananthiravan' of a tharwad seeking a declaration for setting aside the registered deed purported to have been executed by a member of the tharwad in favour of the defendants and seeking recovery of the tharward property. In the suit an averment was also made to the effect that in view of the Kerala Joint Family Abolition Act {Act 30/76}, after the disruption of the tharwad, as all members of the tharwad are treated to be co-owners the plaintiffs are suing in their individual capacity as co-owners also seeking permission W.P.(C).No.34426 of 2007 :: 2 :: to do so in a representative capacity on behalf of all the members under Order I Rule 8 of the Code of Civil Procedure. It is submitted, that application moved by the plaintiffs was allowed and a publication was carried out. Suit was filed on 9.3.2005. Suit claim was resisted by the contesting defendants by filing written statement. When the suit progressed to a considerable stage, on 6.8.2007, the petitioner herein moved an application under Order I Rule 10 Code of Civil Procedure, seeking his impleadment as additional 3rd plaintiff in the suit. That application was objected to by the contesting defendants. The learned Sub Judge, after hearing both sides, dismissed that application vide Ext.P5 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner. W.P.(C).No.34426 of 2007 :: 3 :: 3. The suit has been filed in a representative capacity and as such any decision rendered in the suit will be binding on the petitioner herein as well is highlighted by the counsel to submit that he should be impleaded as a plaintiff or at least as a co- defendant in the suit. 4. Ext.P1 is the copy of the plaint in the suit. Perusing Ext.P1 with reference to Ext.P4 application moved by the petitioner and the submissions made by the learned counsel, I find this is not a fit case calling for the exercise of extraordinary jurisdiction vested with this court. 5. Plaintiff is the master of the suit. A third party on his application cannot be permitted to be impleaded as an additional plaintiff without the consent of the plaintiff and that too only on grounds satisfying the court for ordering such impleadment. Of course, the court can at any stage implead any person where it is satisfied that his presence W.P.(C).No.34426 of 2007 :: 4 :: is necessary for a fair and proper adjudication of the disputes involved in the suit. A declaratory suit for setting aside a registered deed executed nearly 10 years prior to the filing of the suit, it is seen from the allegations in the plaint, is sought for by the plaintiffs in their capacity as the Karanavan and 'ananthiravan' of a tharwad. In the suit, alternatively it is contended that they are filing the suit in a representative capacity on behalf of all the co-owners in view of the coming into force of Act 30/76 is also canvassed. That plea is raised by the present petitioner for his impleadment as an additional plaintiff in the suit advancing a case that the plaintiffs who have instituted the suit have lost interest in its prosecution in view of the influence exerted by the contesting defendants. Whatever be the merit of that allegation, that the plaintiffs and the defendants have entered into some arrangement, it is only to be stated that as the suit has been filed in a W.P.(C).No.34426 of 2007 :: 5 :: representative capacity, no withdrawal or giving up of the claim is permissible without following the procedural interdictions placed by the Code. I refrain from expressing any opinion over the framing of the suit and the reliefs canvassed, after the coming into force of Act 30 of 1976. 6. I do not find any reason to interfere with Ext.P6 order passed by the learned Sub Judge, declining the request of the petitioner to be impleaded as an additional plaintiff in the suit. Writ petition dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//