Allowed

N.K.Viswanathan Nair, v. Asharaf

Kerala HC4 Oct 2021OP(C)/1348/2021

Case brief

AI extract

What is this about?

The High Court of Kerala held two original civil petitions. In O.P(C).1348/2021, the court allowed a prayer to expedite the trial of the main suit O.S.No.6/2017. In O.P(C).1273/2021, the court allowed an impleadment application for a fifth defendant in the suit, setting aside the lower court's dismissal while reserving rights for the petitioner to establish membership independently.

What did the court decide?

O.P(C) No. 1348/2021 allowed with direction to expedite trial. O.P(C) No. 1273/2021 allowed; petitioner impleaded as fifth defendant; impugned order set aside; time fixed for written statement.

N.K.Viswanathan Nair, Vs Asharaf — Specific Performance | Kerala HC (2021)

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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 A. BADHARUDEEN

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MONDAY, THE 4^TH DAY OF OCTOBER 2021 / 12TH ASWINA, 1943

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OP(C) NO. 1273 OF 2021

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AGAINST ORDER DATED 29.06.2021 IN I.A.NO.211/2017 IN O.S.6/2017 ON THE FILE OF THE MUNSIFF COURT, KOYILANDY

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PETITIONER/PETITIONER/3RD PARTY

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KANHIKAVU KUNHIKRISHNAN, AGED 79 YEARS, S/O. IMBICHAN, ANITHA NIVAS, ULLIYERI P.O., KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADVS. K.MOHANAKANNAN H.PRAVEEN (KOTTARAKARA)

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RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS

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1 ASHARAF, AGED 48 YEARS, S/O.POKKER HAJI, KUNIYIL HOUSE, ULLIYERI P.O., KOYILANDY TALUK, KOZHIKODE-673 101. 2 ULLIYERI SECONDARY SCHOOL COMMITTEE, REPRESENTED BY ABDUL HAMEED, S/O. KOYAKUTTY HAJI, KUMMAYAPURATH HOUSE, ULLIYERI, KOYILANDY-673 101. 3 ABDUL HAMEED, S/O. KOYAKUTTY HAJI, KUMMAYAPURATH HOUSE, ULLIYERI, KOYILANDY, KOZHIKODE DISTRICT-673 101. 4 SOMAN NAMBIAR, S/O. NARAYANAN NAIR, AZHAKATH HOUSE, ULLIYERI P.O., KOYILANDY, KOZHIKODE DISTRICT-673 101. BY ADVS. K.P.SUDHEER J.RAMKUMAR

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04.10.2021 ALONG WITH O.P(C).NO.1348/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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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 A. BADHARUDEEN

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MONDAY, THE 4^TH DAY OF OCTOBER 2021 / 12TH ASWINA, 1943

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OP(C) NO. 1348 OF 2021

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AGAINST THE ORDER DATED 27.02.2021 IN I.A.NO.326/2020 IN OS 6/2017 OF MUNSIFF COURT, KOYILANDY

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PETITIONER

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N.K.VISWANATHAN NAIR, AGED 67 YEARS S/O. SREEDHARAN NAIR, ARATHY HOUSE, KUNNATHARA P.O. KOYILANDY, KOZHIKODE DISTRICT.

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BY ADV GEORGE ABRAHAM

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RESPONDENTS

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1 ASHARAF, AGED 52 YEARS S/O. POKER HAJI, KUNIYIL HOUSE, ULLIYERI P.O. KOYILANDY TALUK, KOZHIKODE DISTRICT 673 620. 2 ULLIYERI SECONDARY SCHOOL COMMITTEE, ULLIYERI, KOYILANDY, REP. BY ITS PRESIDENT, ABDUL HAMEED, S/O. KOYAKUTTY HAJI, KUMMAYAPURATH HOUSE, ULLIYERI P.O. KOYILANDY TALUK, KOZHIKODE DISTRICT 673 620.

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3 ABDUL HAMEED, S/O. KOYAKUTTY HAJI, KUMMAYAPURATH HOUSE, ULLIYERI P.O KOYILANDY TALUK, KOZHIKODE DISTRICT, PRESIDENT, ULLIYERI SECONDARY SCHOOL, COMMITTE, ULLIYERI, KOYILANDY, KOZHIKODE 673 620. 4 SOMAN NAMBIAR, S/O. NARAYANAN NAIR, AZHAKATH HOSUE, ULLIYERI , KOYILANDY, ULLIYERI SECONDARY SCHOOL, COMMITTE, ULLIYERI, KOYILANDY, KOZHIKODE 673 620.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04.10.2021 ALONG WITH OP(C).NO.1273/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(C). Nos.1273 of 2021 & 1348 of 2021

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A. BADHARUDEEN, JJ.

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================================

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O.P(C). Nos.1273 of 2021 & 1348 of 2021 ================================

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Dated this the 4^th day of October, 2021

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JUDGMENT

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Additional 4^th defendant in O.S.No.6/2017 on the file of the Munsiff Court, Koyilandy is the petitioner in O.P(C).No.1348/2021. Plaintiff and other defendants are the respondents herein. The main prayer in this Original Petition is to direct the Munsiff to expedite the trial in the suit within a shortest time possible. In fact, no objection raised as regards to the said prayer by the respondents in any manner.

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However, O.P(C).No.1273/2021 has been filed by one

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Kanhikavu Kunhikrishnan asserting that he is a member of Ulliyeri Secondary School committee and he is the founder member of the

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committee. He raised the challenge in so far as Ext.P6 whereby his application filed under Order 1 Rule 10 of C.P.C to implead him as additional 5^th defendant in O.S.No.6/2017 was dismissed by the court below holding that no evidence to substantiate his contention.

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As far as the plea raised in O.P(C).No.1348/2021 is concerned,

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the prayer for early disposal of the suit, no objection raised. Therefore, I am

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O.P(C). Nos.1273 of 2021 & 1348 of 2021

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inclined to allow the Original Petition with a direction to the learned Munsiff to expedite the trial in O.S.No.6/2017 as early as possible, at any rate, within six months from the date of receipt or production of a copy of this judgment.

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Hence O.P(C).No.1348/2021 is allowed accordingly.

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Coming to O.P(C).No.1273/2021, where challenge against

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Ext.P6 order, dismissing the application filed by the petitioner to implead himself as 5^th defendant in O.S.No.6/2017, the learned counsel for the petitioner attempted to substantiate the status of the petitioner as a founder member based on the averments in the affidavit in support of the impleading application. However, the learned counsel for the petitioner could not justify the membership in a convincing manner, with reference to any document to prove the said contention. Neverthless, it is an admitted fact that the petitioner in this O.P also filed O.S.No.68 of 2010 before the same court in relation to the school and sought for some reliefs wherein also he claimed to be a founder member of the school. Filing of O.S.No.68/2010 is not a matter in dispute. Going by the order impugned, Ext.P6 herein, the Munsiff cannot be faulted, in a case where the petitioner failed to substantiate his right as founder member in the matter, for dismissing the petition for impleadment. However, it appears that he had also filed another suit, viz., O.S.No.68/2010 and that matter is also pending before the same court. Considering the above

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O.P(C). Nos.1273 of 2021 & 1348 of 2021

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aspect and also to avoid pendency of these matters further, in the interest of justice, I am inclined to allow the application of the petitioner to implead himself as additional 5^th defendant in O.S.No.6/2017, reserving his right in relation to the school to be established independently. Thus Ext.P6 order is set aside. The court below is directed to implead the petitioner as additional

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5^th defendant in O.S.No.6/2017 forthwith. It is made clear that the impleadment of the petitioner as the 5^th defendant in O.S.No.6/2017 by itself does not confer any right to the petitioner in any manner and he is put at liberty to adduce evidence in support of his contention and to establish his right independently. The learned Munsiff is directed to consider the case of

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the petitioner untramelled by the observations made in this O.P in any manner.

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O.P(C).No.1273/2021 is allowed accordingly.

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It is specifically ordered further that the petitioner in

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O.P(C).No.1273/2021 shall file his written statement within four weeks from

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the date of this judgment to facilitate the court below to expedite the trial in O.S.No.6/2017.

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O.P(C). Nos.1273 of 2021 & 1348 of 2021

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The Registry is directed to forward a copy of this judgment within seven

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days for compliance.

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Sd/-

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A. BADHARUDEEN, JUDGE

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rtr/

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O.P(C). Nos.1273 of 2021 & 1348 of 2021

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APPENDIX OF OP(C) 1273/2021

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PETITIONER'S EXHIBITS

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Exhibit P1	TRUE COPY OF THE FILE OF THE MUNS	PLAINT OS 6/2017 ON THE IFF COURT, KOYILANDY.
Exhibit P2	TRUE COPY OF THE IN OS 6/2017) DA FILED BY THE PET	APPLICATION (IA 211/2017 TED 4.2.2017 FOR IMPEADING, ITIONER.
Exhibit P3	TRUE COPY OF THE OS 6/2017 DATED	OBJECTION TO IA 2/2017 IN 14.3.2017.
Exhibit P4	TRUE COPY OF THE 1564/2017 DATED	COMMON JUDGMENT IN OPC 27.7.2017.
Exhibit P5	TRUE COPY OF THE IA NO.947/2015 I	ORDER DATED 22.6.2016 IN N OS 68/2010.
Exhibit P6	TRUE COPY OF THE 6/2017 DATED 29.	ORDER IN IA 211/2017 IN OS 6.2021.

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RESPONDENTS' EXHIBITS

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Exhibit R1(A)	TRUE COPY OF JUDGMENT DATED 23/06/2014 IN OP (CIVIL) NO.4097/2013 PASSED BY THIS HON'BLE COURT.
Exhibit R1(B)	TRUE COPY OF ORDER DATED 30/10/2014 IN R.P.NO.827/2014 IN OPC.NO.4097/2013 PASSED BY THIS HON'BLE COURT.
Exhibit R1(C)	TRUE COPY OF JUDGMENT DATED 07/03/2017 IN OPC.NO.1934/2016 PASSED BY THIS HON'BL COURT.
Exhibit R1(D)	TRUE COPY OF JUDGMENT DATED 31/03/2021 IN OPC.NO.836/2018 PASSED BY THIS HON'BLE COURT.

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O.P(C). Nos.1273 of 2021 & 1348 of 2021

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APPENDIX OF OP(C).NO.1348/2021

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PETITIONER'S EXHIBITS

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Exhibit P1	TRUE COPY OF PLAINT IN O.S. NO. 6 OF 2017.
Exhibit P2	TRUE COPY OF THE ORDER IN I.A. NO. 126/2017 IN O.S. NO. 6/2017 DATED 06.07.2020.
Exhibit P3	TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S. NO.6 OF 2017.
Exhibit P4	TRUE COPY OF THE JUDGMENT IN WPC NO. 13160 OF 2020 DATED 31.03.2021.
Exhibit P5	TRUE COPY OF THE ORDER PASSED BY THE HONBLE MUNSIFF'S COURT DATED 27.02.2021.

N.K.Viswanathan Nair, v. Asharaf

Case brief

What is this about?

What did the court decide?

N.K.Viswanathan Nair, v. Asharaf

Case brief

What is this about?

What did the court decide?

What the court decided

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