Dr.T.D.Bose v. Matt India Medical Centre

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE P.BHAVADASAN THURSDAY, THE 22ND DAY OF JANUARY 2015/2ND MAGHA, 1936 OP(C).No. 190 of 2015 (O) -------------------------- I.A. NO. 2842/2014 IN OS NO. 462/2006 OF ADDITIONAL MUNSIFF COURT, CHERTHALA ---------------------------- ORIGINAL PETITIONER/1ST RESPONDENT/ DEFENDANT : ------------------------------------------------------------------------------------ DR.T.D.BOSE S/O.T.K.DHAMODARAN, AGED 54, PRASANTHI, 12/7 10 A PANAYAPPALLY P.O., KOCHI -2 BY ADVS.SRI.JOY THATTIL ITTOOP SRI.JACOB TOMLIN VARGHESE SRI.A.G.ADITYA SHENOY RESPONDENTS/PETITIONERS & 3RD RESPONDENT/PLAINTIFF : ---------------------------------------------------------------------------------------------

1. MATT INDIA MEDICAL CENTRE REG NO.890/98. EZHUPUNNA SOUTH MURI KODAMTHURUTHU VILLAGE, CHERTHALA - 688 524 REPRESENTED BY ITS DIRECTOR.

2. K.J.CHERIYAN, KARIKODATHU, KODAMTHURUTHU VILLAGE CHERTHALA - 688 524

3. ANTONY, THATTUMKAL, KODAMTHURUTHU VILLAGE, CHERTHALA - 688 524

4. KUTTIMOOSA, NEENA MANZIL KUTHIATHODE, THURAVOOR, CHERTHALA - 688 524

5. BALACHANDRAN, EERAYIL HOUSE, PARAYAKAD P.O., CHERTHALA - 688 524 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22-01-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn

...2/- OP(C).No. 190 of 2015 (O) ------------------------------------- APPENDIX PETITIONERS' EXHIBITS :

------------------------------------- EXT. P1TRUE COPY OF THE PLAINT O.S.462/2016 OF THE ADDITIONAL MUNSIFF, CHERTHALA.

EXT. P2TRUE COPY OF THE WRITTEN STATEMENT/COUNTER CLAIM. EXT. P3TRUE COPY OF THE PETITION IN I.A.2842/2014 IN O.S.462/2016 OF THE ADDITIONAL MUNSIFF, CHERTHALA.

EXT. P4TRUE COPY OF THE OBJECTION DATED 3.9.2013. EXT. P5CERTIFIED COPY OF THE ORDER DATED 15.12.2014 IN I.A. 2842/2014 IN O.S. 462/2016 OF THE ADDITIONAL MUNSIFF, CHERTHALA RESPONDENT(S)' EXHIBITS : NIL ------------------------------------------------------------- //TRUE COPY// P.A. TO JUDGE Mn

P.BHAVADASAN, J.

- - - - - - - - - - - - - - - - - - - - - - - - O.P.(C) No. 190 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of January, 2015

J U D G M E N T

The grievance is that Ext.P5 order has been passed by the court below without taking note of the statement in the objections filed in I.A.No.2842/2014 in O.S.No. 462/2006 that some of the respondents shown therein are no more. 2.

The learned counsel appearing for the respondent before the court below in I.A.No.2842/2014 contended that the court below was of the view that some of the respondents had died long ago and without taking necessary steps in that regard, the petition may not be maintainable. The complaint is that without even considering that aspect, the I.A. has been allowed.

3.

The suit is one for injunction.

As the consequences of not impleading legal heirs of some of the defendants in the suit passed away during the pendency of the suit, is a matter to be considered by the court at the

O.P.(C) No. 190 of 2015 -2appropriate stage. Even assuming that in the petition on hand filed under Order XI Rule 9, assuming that if there are some dead persons, at best what could be said is that the order is not binding on them as to whether it will bind the persons who are alive, is a different question. All these are matters to be decided at the time of trial of the suit. 4.

It could not be said that being a suit for injunction, the suit abates as a whole as of now. The fact that the counter claim filed by the defendant does not make much of a difference to the issue.

For the above reasons, reserving the right of the petitioner to agitate the question at the appropriate stage, this petition is disposed of.

Sd/- P.BHAVADASAN JUDGE ds //True copy// P.A. to Judge