IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 31920 of 2008(Y) ----------------------------------- AGAINST THE ORDER DATED 18/08/2008 IN IA.438/2008 IN AS.36/2004 of I ADDL.SUB COURT,TRIVANDRUM OS.1136/2002 of III ADDL.M.C.,TRIVANDRUM .................... PETITIONERS: -------------------- 1. VIJAYAMMA D/O.KARTHIYAANI, THAZHAKADAYIL VEEDU, CHEMPAZHANTHY P.O.,THIRUVANANTHAPURAM. 2. RAJ KUMAR,S/O. VASUDEVAN THAZHAKADAYIL VEEDU, CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM. 3. DILEEP KUMAR, S/O. VASUDEVAN THAZHAKADAYIL VEEDU, CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM. 4. ASOK KUMAR S/O. VASUDEVAN, THAZHAKADAYIL VEEDU, CHEMPAZHANTHY P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN RESPONDENT: -------------------- CHANDRIKA KUMARI D/O.VIJAYAMMA, SIBIN NIVAS,NEDUMON,KOVALAM P.O. THIRUVANANTHAPURAM. R1 BY ADV. SRI.K.KARTHIKEYAN SRI.R.T.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.31920/2008-Y APPENDIX PETITIONER'S EXHIBITS: Ext.P1 COPY OF AMENDMENT APPLICATION FILED BY THE RESPONDENT/PLAINTIFF DATED 16-1-2008. EXT.P2 COPY OF THE OBJECTION FILED BY THE PETITIONER/DEFENDANT DATED17-6- 2008. EXT.P3 COPY OF AMENDMENT PETITION FILED BY THE APPELLANT BEFORE THE APPELLATE COURT DATED 10-9-2007. EXT.P4 COPY OF THE ORDER DATED 18-8-20087 IN IA.NO.438/2008. RESPONDENT'S EXHIBITS: NIL // TRUE COPY // PA TO JUDGE. dkr S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 31920 OF 2008 Y ```````````````````````````````````````````````````` Dated this the 2nd day of July, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs:- “(i) issue a writ of certiorari calling for records leading to the issuance of Ext.P4 and set aside Ext.P4 order. (ii) issue a writ of mandamus directing the court below to reconsider Ext.P1 application in view of the orders passed in Ext.P3 application or in the alternative dismiss Ext.P1 application.” 2. Petitioners are the defendants in OS.No.1136/02 on the file of III Additional Munsiff Court, Thiruvananthapuram. Suit was one for partition, and the respondent is the plaintiff. Suit after trial was dismissed. After preferring an appeal challenging the decree and judgment dismissing the suit, the respondent/appellant moved an application for impleading a sharer who was left out. That application, after hearing both parties, was allowed by the appellate court. The legality, propriety and correctness of that order, a copy of which is produced as Ext.P4, is challenged by the petitioners/ defendants in the suit invoking the supervisory WPC.31920/08 : 2 : jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. It is submitted that the respondents had earlier moved another application for the same relief covered by Ext.P4 in the appeal and that was dismissed. The learned counsel for the respondent submits that the appellate court, after taking note of the earlier dismissal, allowed the subsequent application under Ext.P4 order. Whatever that be, the course followed by the appellate court in allowing the impleadment of a party in appeal before the appeal was taken up for consideration on its merits, ie, at the time of hearing of the appeal, is not in consonance with the procedure, equity or justice. The impleadment allowed necessarily will cause prejudice to the party impleaded whoever he be and also the contesting respondents in the appeal. The appeal is a re-hearing of the suit and of course the appellate court has all the powers of the trial court subject to the limitations prescribed by the law. Still, the impleadment of an additional party in appeal has serious consequences as it would not be conducive to a fair disposal of WPC.31920/08 : 3 : the appeal in accordance with the procedure prescribed. Of course, impleading a representative of a party on death of any of the parties or transfer or assignment is permissible a it would not in any way affect the appeal proceedings. Ext.P4 order cannot be sustained and it is liable to be set aside. I do so. However, irrespective of Ext.P4 order which has now been set aside the question of impleadment of a party as desired by the appellants, shall be considered by the appellate court taking up the application moved by the appellant for that purpose when the appeal is heard and then passing appropriate orders thereof in accordance with law. In case the application is found allowable and impleadment of an additional party as desired by the appellants found necessary, the question of setting aside the dismissal and remitting the case for fresh disposal has also to be considered by the court. Subject the above observations, the writ petition is disposed. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks