P S SARADAMBAL Vs. P N GOPALAKRISHNAN

JUDGEMENT

(1.) PETITIONER is the plaintiff in O. S. 331/06 on the file of the Munsiff's Court, Palakkad. Other than the respondents, Palakkad municipality had been impleaded as the third defendant in the suit initially. Vide Ext. P1 application petitioner/plaintiff prayed for the third defendant being deleted from the party array and it is submitted that the prayer was allowed by the trial court. After such deletion defendants 1 and 2 filed an additional written statement contending that without impleading the Palakkad Municipality as a party, the suit is bad for non-joinder of necessary parties. When the suit stood posted for steps to 21/08/08 the plaintiff filed ext. P2 petition on 20th of August, 2008 for additional issue No. 8 viz. as to whether the suit is bad for non-joinder of necessary parties being heard as a preliminary issue.

(2.) AFTER hearing arguments in detail the court below vide Ext. P3 order dismissed the said petition holding that the question as to whether the suit is bad for non-joinder of necessary parties is a mixed question of fact and law; that to decide that issue the entire documents have to be verified and to a certain extent oral evidence also is required and that therefore, the issue regarding the non-joinder need not be heard as a preliminary issue. It is the said order that is assailed before me by the petitioner/plaintiff.

(3.) IT is vehemently contended before me by the learned counsel for the plaintiff that unless a finding is entered into by the court on the issue regarding non-joinder, the petitioner/plaintiff will not be able to cure the defect if any and that therefore, the impugned order Ext. P3 be set aside and the court below be directed to enter a finding as to whether the suit is bad for non-joinder of necessary parties considering it as a preliminary issue.