Disposed

Thomas John v. T.T.Philip @ Monachan

Kerala HC27 Jul 2016OP(C)/54/2016

Case brief

AI extract

What is this about?

The petitioner challenged an order impleading a third defendant representing a co-owner via power of attorney and sought early disposal of an eviction suit. The High Court did not interfere with the impleadment but directed the lower court to expedite the trial within six months.

What did the court decide?

No interference with impleadment order; lower court directed to dispose of the suit within six months.

Thomas John Vs T.T.Philip @ Monachan — Property and Title | Kerala HC (2016)

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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.RAMAKRISHNAN

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WEDNESDAY, THE 27TH DAY OF JULY 2016/5TH SRAVANA, 1938

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OP(C).No. 54 of 2016 (O)

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------------------------IA NOS. 1585 AND 1586 OF 2015 IN OS 333/2014 OF THE COURT OF MUNSIFF, RANNI.

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COUNDER PETITIONER(S)/PETITIONER/PLAINTIFF :

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THOMAS JOHN

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KUZHIKANDATHIL HOUSE, THADIYUR P.O., THIRUVALLA, EZHUMATTOOR VILLAGE, PATHANAMTHITTA DISTRICT.

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BY ADVS.SRI.P.CHANDRASEKHAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL SMT.UMA SRI.K.NANDAKUMAR SMT.V.A.HARITHA SMT.P.M.MAZNA MANSOOR

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RESPONDENT(S)/PETITIONER/2ND DEFENDANT:

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T.T.PHILIP @ MONACHAN CHERUKARA THADATHIL HOUSE, VELLIYARA P.O. THIRUVALLA, PATHANAMTHITTA DISTRICT - 689 612.

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BY ADVS. SRI.K.SHAJ SRI.SAJJU.S

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27-07-2016 ALONG WITH OPC NO. 1650/2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 54 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P-1: TRUE COPY OF THE PLAINT IN OS NO.333/14 ON THE FILE OF MUNSIFF COURT, RANNI.

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EXT.P-2: TRUE COPY OF THE SETTLEMENT DEED NO.432/99

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EXT.P-3: TRUE COPY OF THE BASIC TAX RECEIPT DATED 18.5.2001 ISSUED BY VILLAGE OFFICER, AIYROOR

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EXT.P-4: TRUE COPY OF RECEIPT DATED 3.6.2014 ISSUED BY AYIROOR GRAMA PANCHAYATH

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EXT.P-5: TRUE COPY OF THE ORDER DATED 20.12.2014 IN IA 1696/14 IN OS 333/14 OF MUNSIFF COURT, RANNI.

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EXT.P-6: THE TRUE COPY OF THE ORDER IN IA NO.1584 OF MUNSIFF COURT AS PER ORDER DATED 16.11.2015

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EXT.P-7: TRUE COPY OF THE WRITTEN STATEMENT IN OS 333/14 BEFORE MUNSIFF COURT, RANNI ON 3.11.2015

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EXT.P-8: A TRUE COPY OF THE IA NO.1586/15 IN OS 333/14 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, RANNI.

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EXT.P-9: A TRUE COPY OF THE POWER OF ATTORNEY EXT.P-10: A TRUE COPY OF THE COMMON ORDER IN IA NOS. IA 1585/14 AND 1586/14

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RESPONDENT(S)' EXHIBITS : NIL.

//TRUE COPY//

P.A. TO JUDGE

K. RAMAKRISHNAN, J.

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---------------------------------------

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O.P.(C). No. 54 OF 2016 & O.P.(C). No. 1650 OF 2016

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---------------------------------------- Dated this the 27^th day of July, 2016

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JUDGMENT

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O.P.(C). No. 54/2016 was filed by the plaintiff challenging Ext. P10 order in that petition for impleading an additional third defendant in the suit and O.P. No. 1650/2016 was filed by the same plaintiff for an early disposal of O.S. No. 333/2014 pending before the Munsiff Court, Ranni, both under Article 227 of the Constitution of India.

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O.S. No. 333/2014 was filed by the petitioner in these petitions for eviction of the original defendants 1 and 2 from the plaint schedule property. A person claiming to be a co-owner of the plaint schedule property along with the plaintiff had filed I.A. No. 1585/2015 and 1586/2015 through the second defendant as the power of attorney holder to implead him in the proceedings and permitting him to prosecute the case through the power

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O.P.(C). No. 54 OF 2016 & O.P.(C). No. 1650 OF 2016

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of attorney holder. The petitioner herein challenged the applications contending that he has no right in the property and the power of attorney was not properly executed by that person and as such the petition cannot be allowed. After considering the submissions of both sides, the learned Munsiff allowed the applications by Ext. P10 order which is being the subject matter of challenge in O.P.(C). No. 54/2016.

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Since the petitioner apprehends that the evidence in the case will be protracted, he moved O.P. (C).No. 1650/2016 for an early disposal of the case. In both these cases, Adv. Sri. K. Shaj entered appearance for the second respondent. Notice to the first respondent in O.P. (C).No. 1650/2016 can be dispensed with. Notice to the additional third defendant is also not necessary because he is being represented by the second respondent herein on the strength of a power of attorney.

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The additional third defendant who is impleaded in the suit as per the impugned order in

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O.P.(C). No. 54 OF 2016 &

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O.P.(C). No. 1650 OF 2016

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O.P.(C). No. 54/2015 is claiming that he is a co-owner of the property and he is having half right in the property, his right is being denied by the plaintiff, as according to the plaintiff, he is the sole owner of the property. If it is a co-ownership property, the plaintiff wants to file a suit for eviction, it can be only filed either with the co-owner on the party array or atleast there must be an allegation in the plaint that he is prosecuting the case on behalf of the other co-owner as well. If there is dispute regarding the right in the property itself and the party who is claiming the right in the property wants to get himself impleaded in the suit as he apprehends that his right will be affected, if he is not contesting the case, he has got every right to come and join the proceedings or he may even ignore the same and initiate independent proceedings to declare his right in the property. But in this case, he has opted to appear through the power of attorney holder and contest the case. The court below after considering the documents produced came to the conclusion that he is a

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O.P.(C). No. 54 OF 2016 & O.P.(C). No. 1650 OF 2016

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necessary party for disposal of the suit and allowed the applications.

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The question regarding the genuineness of the power of attorney produced or any observation made by the court below regarding its genuineness for the purpose of considering the interlocutory application to implead the additional third defendant through the power of attorney holder will not stand in the way of considering its genuineness and right of the third defendant to contest the case through the power of attorney holder by the court below. It can be considered by the court below on the basis of evidence and can come to an independent conclusion regarding the same in the suit on the basis of evidence. I do not find any reason to interfere with the order allowing the application for impleading and permission to represent through the power of attorney on the basis of materials now available on record and set side the same invoking the power under Article 227 of the Constitution of India. Since it is a case for eviction of a

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O.P.(C). No. 54 OF 2016 & O.P.(C). No. 1650 OF 2016

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building, this Court feels that the scope of evidence will be less and the matter can be expedited. The court below also sent a report stating that the case is now posted for framing issues and the matter cannot be proceeded with in view of the stay order passed in O.P.(C). No. 54/2016 and the Munsiff is in additional charge of Munsiff Court, Pathanamthitta and is conducting three days sitting in a week of that court also. It is also stated in the report that the Munsiff wants six months time for disposal of the suit. The counsel for the second respondent submitted that the additional third defendant has already filed a written statement in the suit and the pleadings are completed. So the petitions are disposed of as follows:-

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O.P. No. 54/2016 is disposed of without interfering the order of impleadment of the third defendant passed by the court below but leaving open the right of the plaintiff to challenge his claim and also challenging the genuineness of the power of attorney which has been said to have been executed in favour of the second defendant

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O.P.(C). No. 54 OF 2016 & O.P.(C). No. 1650 OF 2016

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in the suit and the court below is directed to consider those aspects also untrammeled by the observations made in the impleading application and permission to conduct the case by the power of attorney holder on the basis of alleged power of attorney executed. O.P. (C). No. 1650/2016 is disposed of directing the Munsiff of Ranni to expedite disposal of O.S. No. 333/2014 pending before that court, as expeditiously as possible, at any rate, within six months from the date of receipt of this judgment.

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With the above direction and observation, both these petitions are disposed of.

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K. RAMAKRISHNAN, JUDGE

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DCS

Thomas John v. T.T.Philip @ Monachan

Case brief

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Thomas John v. T.T.Philip @ Monachan

Case brief

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