IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 OP(C).No. 2375 of 2011(O) -------------------------------------- AGAINST THE ORDER DATED 24/05/2011 IN IA 1096/2011 IN OS.NO.361/2010 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER --------------------- A.C.PHILIP, S/O.LATE PAILY CHANDI, AGED 75 YEARS, AMBATTU HOUSE, EZHAKKARANAD KARA, MANEED VILLAGE, MUVATTUPUZHA. BY ADV. SRI.T.SAJI SRI.T.V.JAYAKUMAR NAMBOODIRI RESPONDENT(S): --------------------------- 1. RAMACHANDRAN NAIR, S/O.NARAYANAN NAIR, THEKKEPARAYIL HOUSE, EZHAKKARANAD, MUVATTUPUZHA-682 308. 2. RAMAN @ THANKAPPAN, S/O.LATE PAPPY, SASTHAMUKALIL HOUSE, EZHAKKARANAD SOUTH P.O., MANEED VILLAGE, MUVATTUPUZHA-682 308. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2375/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT DATED 19/08/2010 P2 COPY OF THE I.A.NO.1096/11 IN O.S.361/2010 DATED 21/03/2010 P3 COPY OF THE COUNTER AFFIDAVIT DATED 04/04/2011 P4 COPY OF THE ORDER IN I.A.NO.1096/11 IN OS-361/10 DATED 24/05/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2375 of 2011 -------------------------------------- Dated this the 27th day of July, 2011. JUDGMENT Petitioner is the plaintiff in O.S.No.361 of 2010 of the court of learned Munsiff, Muvattupuzha. He filed the suit for a decree for prohibitory injunction against respondents/defendants trespassing into the suit property over which he claimed title and possession. In paragraph 4 of the plaint it is averred that respondents are also administering the temple (Ayyappankunnel Sree Dharma Sastha Kshethram, Ezhakkaranad) and that respondents or any other person have no right in the suit property. In paragraph 6 it is stated that respondents are highly influential persons with much muscle power and that they are managing the nearby temple, they will do all tactics for trespass or make problems in the suit property by using the temple administration. On the said allegations petitioner requested that he may be allowed to sue the respondents in a representative capacity and applied for and made a publication under Rule 8 of Order 1 of the Code of Civil Procedure (for short, “the Code”). Respondents contended that they have no personal interest in the suit property but, claimed that petitioner has encroached into the property of the temple situated nearby which they are administering. Respondents filed Ext.P2, application for the appointment of an Advocate Commissioner to measure the encroached area. That application was allowed by Ext.P4, order which is under challenge. OP(C) No.2375/2011 2 2. Learned counsel for petitioner contends that since respondents are not impleaded in the suit in their capacity as office bearers of the administrative committee of the temple, in view of their contention that they have no personal interest in the matter, without them being impleaded as office bearers the request for appointment of Advocate Commissioner should not have been entertained. It is also contended by learned counsel that there is no property lying adjacent to suit property and belonging to the temple so that the allegation of trespass could be justified. 3. Though, in the cause title of the plaint respondents are not described as representing the temple committee, averments in the plaint would show that they are office bearers of the temple and that their attempt is to trespass into the suit property with the help of the temple administration. From paragraph 6 of the plaint it is clear that petitioner wanted respondents to be sued in a representative capacity as representing those persons who are opposing the claim and a publication also has been made under Rule 8 of Order 1 of the Code. The question whether respondents have been impleaded in their capacity as officials of the temple administration committee is ofcourse is a matter which petitioner can urge before the learned Munsiff at the appropriate stage. By Ext.P4, order learned Munsiff has directed to identify the suit property. I must bear in mind that even without any of the parties asking for, it is within the power of the court in appropriate cases to issue a commission exercising suo motu power to identify the suit property for, the cardinal principle is that no decree for injunction can be granted to affect a third person who is not a party to OP(C) No.2375/2011 3 the proceeding. In that view of the matter I do not find reason to interfere with the impugned order. Other contention which petitioner has raised in this proceeding could be urged in the course of trial. With the above observation, this Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks