Allowed

Santhosh Kumar v. Jagadeesan

Kerala HC13 Jan 2009CRP/16/2009

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a revision petition, setting aside the lower court's order that declined to raise an additional issue on non-joinder of necessary parties. It directed the lower court to raise the issue if pleaded, ensuring an opportunity for the respondent to cure any defect, without taking a preliminary finding on the matter.

What did the court decide?

Set aside the order of the lower court on I.A.No.2403/08 and directed it to raise the additional issue regarding non-joinder of necessary parties if pleaded in the written statement.

Santhosh Kumar Vs Jagadeesan — Civil Procedure and Limitation | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN

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TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930

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CRP.No. 16 of 2009

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------------------------------IA.2403/2008 IN OS.508/2007 of SUB COURT, ALAPPUZHA

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REVN. PETITIONER/PETITIONER/DEFENDANT:

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SANTHOSHKUMAR, AGED 48 YEARS, S/O RAMAKRISHNA PILLAI, THATTARUPARAMBIL, NEERKUNNAM, AMBALAPPUZHA, ALAPPUZHA.

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BY ADV. SRI.A.T.ANILKUMAR

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RESPONDENT/CR.PETITIONER/PLAINTIFF:

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JAGADEESAN, AGED 35 YEARS, S/O PURUSHOTHAMAN PILLAI, THEVARUNADA HOUSE, NEERKUNNAM, AMBALAPPUZHA, ALAPPUZHA.

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.P. Balachandran, J.

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C.R.P.No.16 of 2009

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ORDER

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The sole defendant in O.S.No.508/07 on the file

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of the Sub Court, Alappuzha is the petitioner. He

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assails the order dated 18.11.2008 passed by the court below on I.A.No.2403/08.

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It is submitted that I.A.No.2403/08 was

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filed by the petitioner seeking for an additional

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issue being raised regarding non joinder of

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necessary parties and to have the said issue heard

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and decided. According to the counsel, while

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considering the said application, the court below has proceeded at a tangent to consider as to who

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are the necessary parties and has held that

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brothers of the respondent/plaintiff are necessary parties to the suit, they being the beneficiaries in relation to the money claim involved in the suit

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and that if at all it is found that the N.S.S.

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Karayogam also is a necessary party at a later stage, it will be considered then. It is also

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CRP 16/09

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submitted by counsel for the petitioner that there is a specific plea in the written statement filed by the petitioner that the suit is bad for non joinder of necessary parties. If there is such a plea, the court has necessarily to raise an issue regarding non joinder of necessary parties and in fact, the request made by the petitioner was only that and he did not want the question as to whether N.S.S. Karayogam is a necessary party to the suit being considered and orders passed, though a request was also made in the application that the said issue may be heard and decided.

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In the result, I set aside the order of the court below on I.A.No.2403/08 in O.S.No.508/07 even without notice to the respondent/plaintiff and direct the court below to raise necessary issue as prayed for, if there is a plea to that effect in the written statement filed by the petitioner/ defendant. However, it is made clear that the said issue is not one on which a preliminary finding is

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CRP 16/09 3

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to be entered into, if at all it is raised and that it would suffice if an opportunity is given to the respondent/plaintiff to cure the defect of non joinder, if any.

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With the above directions, I dispose of this writ petition. Petitioner/defendant is directed to produce a copy of this order in the court below forthwith with notice to the respondent/plaintiff, as this revision petition is being disposed of without notice to him. Issue copy of this order to the counsel for the petitioner/defendant urgently.

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13^th January, 2009 (K.P.Balachandran, Judge) tkv

Santhosh Kumar v. Jagadeesan

Case brief

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Santhosh Kumar v. Jagadeesan

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