KHALEEL Vs. ARANJIKKAL JAMAL MUHAMMED AND ANOTHER

JUDGEMENT

(1.) These original petitions, filed under Art.227 of the Constitution of India, raise challenges against two interlocutory orders passed in Ext.P1 suit. One among them raises an important question regarding legality and sustainability of the Third Party Procedure under Order VIIIA of the Code of Civil Procedure, 1908 (in short, "Code") inserted by a notification in the Kerala Gazette dated 09/06/1959. In the wake of the amendments to the Code by Code of Civil Procedure (Amendment) Act (Act 104 of 1976) and Code of Civil Procedure (Amendment) Act, 2002 (Act 22 of 2002), it is contended that the said Order no longer exists as part of the Code.

(2.) Bare minimum facts, relevant for adjudication, are thus: Petitioner is the defendant in Ext.P1 suit. Allegations in the plaint show that the plaintiff supplied materials for building construction to M/s. Sukam Constructions Pvt. Ltd. in order to construct a building for M/s. Pentagon Builders. As per the plaint averments, a sum of Rs.32,92,735/- was due to the plaintiff (contesting respondent) from M/s. Sukam Constructions Pvt. Ltd. towards the cost of materials. Petitioner filed Ext.P2 written statement opposing the plaint claims. He contended that the suit is barred by limitation. He relied on an agreement dated 22/05/2012 to contend that the entire alleged dues were discharged and no claim subsisted between the parties. According to him, the said agreement was made after a full and final settlement of the disputed amounts. In the above suit, the petitioner preferred an amendment application (Ext.P3 in O.P.(C) No. 32 of 2016). That application was considered by the Trial Court and Ext.P4 order was passed allowing the amendment in part. Dissatisfied with the lesser extent of the amendment allowed, the aforementioned original petition has been filed.

(3.) Also the petitioner filed application invoking R.1 of Order VIIIA of Code seeking leave of the Court to issue a third party notice to M/s. Pentagon Builders in the suit. The application was considered by the Trial Court and as per Ext.P4 order in O.P.(C) No. 28 of 2016 the prayer was turned down on factual grounds. This order too is challenged by the petitioner.