IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 WP(C).No. 28625 of 2008(G) -------------------------- AGAINST THE ORDER IN IA.970/2008 IN OS.107/1998 of SUB COURT, PALA .................... PETITIONER: --------------- A.J.PIOUS, S/O.OUSEPH, ALAPPATTUKUNNEL, ERATTUPETTA KARA AND VILLAGE. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): --------------- 1. RAISON JOSEPH, S/O.A.J.JOSEPH, ALAPPATTUKUNNEL, THALAPPALM KARA AND VILLAGE. 2. NANCY, D/O.A.J.JOSEPH, ALAPPATTUKUNNEL, THALAPPALM KARA AND VILLAGE. 3. MARY JOSEPH, W/O.A.J.JOSEPH, THONIKUZHIYIL, ALEYVALLY P.O., KADANADU VILLAGE. 4. A.O.GEORGE, S/O.OUSEPH, ALAPPATTUKUNEL HOUSE, VALAKOM KARA, MOOVATTUPUZHA VILLAGE AND TALUK. 5. THOMAS, S/O.OUSEPH, ALAPPATTUKUNNEL HOUSE, THALAPPULAM KARA AND VILLAGE. 6. MATHEW JOSEPH, S/O.OUSEPH, ALAPPATTUKUNNEL HOUSE, KAYYALUPPARA P.O., NADUVIL VILLAGE, THALIPARAMBU TALUK, KANNUR DISTRICT. W.P.(C) No. 28625 of 2008 -:2:- 7. THRESSIAMMA, W/O.TOMY THOMAS, KALLACHERIL, THOMMANKUTHU P.O., THODUPUZHA TALUK. 8. ALEYAMMA JOSE, VELLAPPATTU HOUSE, KIZHAPARAYAR KARA, POOVARANI VILLAGE. 9. SUNNY, S/O.OUSEPH, ALAPPATTUKUNNEL, THALAPPALAM KARA AND VILLAGE. 10. SHAJI JOSEPH, S/O.OUSEPH, ALAPPATTUKUNNEL, IDAYATHRA HOUSE, VADAVATHOOR KARA, KOTTAYAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P.(C) NO. 28625 of 2008 * * * * * * * * * * * * * * * * * * Dated: 30-09-2008 JUDGMENT Petitioner was the 7th defendant in O.S. 107 of 1998 on the file of the Sub Court, Pala which was a suit instituted by one A.J. Joseph who died pending suit , seeking partition and separate possession of his share in respect of one item of property. Respondents 1 and 2 herein are the Lrs of the deceased plaintiff. The petitioner claims to have been supporting the plaintiffs and seeking separate allotment of his share of the properties. While so, on 29-01- 2008 the suit was dismissed as not pressed in the light of an endorsement made by the plaintiff's counsel. Nearly six months thereafter, the petitioner filed I.A. No. 970 of 2008 seeking his transposition as the plaintiff and to prosecute O.S. 107 of 1998. The said application has been dismissed as per Ext.P5 order dated 5-8-2008. Ext.P5 order reads as follows:- “R5 and R9, R10 entered appearance. Heard both sides. This an application filed by the 7th defendant in O.S. No. 107/98 to transpose him as plaintiff. On a perusal of the case records would reveal that the suit was dismissed on 29-01-2008 as not pressed by the plaintiff. The present petition was filed W.P.C. No. 28625 of 2008 -:2:- before the court only on 14-7-2008, that is beyond the period of limitation. Hence the application is dismissed as not maintainable. I.A. Closed”. 2. Apart from the fact that the application was filed six months after the dismissal of the suit as not pressed , there is no prayer also to restore the suit to file. It is not known as to how an application for transposition could be filed in a dead matter. All that apart, the petitioner was represented by a counsel in O.S. 107 of 1998. He has no case that he was given wrong advice on account of which he desisted for filing an application for nearly six months. His application to transpose him as plaintiff in the suit was disposed of six months prior to the application. Nothing prevents him from instituting a fresh shit in case he is desirous of getting partition and separate possessions of his share. 3. I see no ground to interfere with the said order passed by the Court below. This Writ Petition is accordingly dismissed. Dated this the 30th September 2008. V. RAMKUMAR, (JUDGE) W.P.C. No. 28625 of 2008 -:3:- ani.