G.Girish, J.
1. The orders passed by the 1st Additional Munsiff, Neyyattinkara directing the impleadment of additional 3rd defendant in O.S.No.743/1996 and O.S.No.482/1996 are under challenge in these writ petitions filed under Article 227 of the Constitution of India.
2. The petitioner was the 2nd plaintiff in the aforesaid suits. Since she died during the course of proceedings in these Original Petitions, her daughter has been impleaded as the 2nd additional petitioner.
3. The original petitioner and her mother had instituted O.S.No.482/1996 before the Munsiff’s Court, Neyyattinkara against the Indian Tourism Development Corporation and its General Manager claiming the reliefs of declaration of easement right and injunction in respect of plaint C schedule pathway existing through plaint B schedule property, which belonged to the above Corporation, leading to plaint A schedule property belonging to them. Lateron, O.S.No.743/1996 was also instituted for the relief of permanent prohibitory injunction in respect of the same plaint C schedule pathway alleging that the defendants therein caused obstruction to the user of the said pathway. When the aforesaid suits were taken up for trial in the special list, counsel for the defendants sought adjournment and filed an application to remove the case from the special list. The learned Munsiff rejected the above request and proceeded with the trial without the participation of the defendants and decreed both the suits in favour of the plaintiffs. The above decree was challenged in appeal before the Sub Court, Neyyattinkara by the Kovalam Hotels Pvt. Ltd which claimed to have purchased the plaint B schedule property from the Indian Tourism Development Corporation. In the aforesaid appeal, the appellants therein filed I.A.No.213/2015 to receive certain additional documents in evidence. The learned Sub Judge dismissed the said application stating the reason that it was not permissible under Order XLI Rule 27 of the Code of Civil Procedure, and consequently dismissed the appeals as well. The Kovalam Hotels Pvt. Ltd challenged the above dismissal of the appeals by filing R.S.A.Nos.215/2006 and 349/2006 before this Court. As per the judgment dated 19.03.2012, a learned Single Judge of this Court allowed the second appeals and remitted both the suits to the Trial Court for considering the scope of impleadment of the appellants thereunder (Kovalam Hotels Pvt. Ltd.) and to permit them to file written statement and to produce evidence, if such impleadment is made. Accordingly, impleading applications were filed as I.A.Nos.2726/2012 and 2727/2012 for the impleadment of Kovalam Resort Pvt.Ltd as additional 3rd defendant in the aforesaid suits. In the above impleadment applications, it was contended that plaint B schedule property, which originally belonged to ITDC, was transferred to the Kovalam Hotels Pvt. Ltd in the year 2002 and that, by virtue of share transfer and amalgamation in the years 2005 and 2007, the Kovalam Hotels Pvt. Ltd merged with Hotel Leela Venture Ltd. and that the above amalgamation was approved by the Bombay High Court as per order dated 02.11.2007. Lateron, the properties including plaint B schedule property were stated to have been transferred to Kovalam Resort Pvt. Ltd on 01.09.2011 and that the said scheme of arrangement was said to have been approved by the Bombay High Court on 24.02.2012. Accordingly, it was requested that the Kovalam Resort Pvt.Ltd has to be impleaded as the additional 3rd defendant in those suits. As per orders dated 19.09.2012, the learned 1st Additional Munsiff, Neyyattinkara allowed I.A.Nos.2726/2012 and 2727/2012, and directed the impleadment of the Kovalam Resort Pvt. Ltd as the additional 3rd defendant in those suits. The above orders were challenged by the petitioner (2nd plaintiff in the suits) before this Court by filing O.P.(C) Nos.3826 and 3833 of 2012. It was contended in the above original petitions that the learned Munsiff ordered impleadment of the additional 3rd defendant in the absence of any material showing the right and interest of the additional 3rd defendant in the plaint B schedule property. As per judgment dated 30.01.2013, a learned Single Judge of this Court allowed the Original Petitions and remitted back I.A.Nos.2726 and 2727 of 2012 to the Munsiff’s Court, Neyyattinkara for fresh decision after giving opportunity to the proposed additional 3rd defendant to produce materials to show that prima facie they are having interest in the property involved in the dispute. Thereafter, as per order dated 14.03.2013 in R.P.No.218/2013, the learned Single Judge made the clarification that, if the proposed additional 3rd defendant had already produced any material before the Trial Court, the same shall also be considered along with the additional documents being produced, while deciding the applications for impleadment. Accordingly, the matter was again considered by the 1st Additional Munsiff, Neyyattinkara and passed orders dated 08.01.2015 in I.A.Nos.2726/2012 and 2727/2012 directing the impleadment of Kovalam Resort Pvt. Ltd as the additional 3rd defendant. The aforesaid orders are under challenge in the present Original Petitions.
4. According to the petitioner, the Trial Court went wrong in allowing impleadment on the basis of the finding that the copy of the thandaper account produced by the proposed additional 3rd defendant showed the existence of plaint B schedule property in the name of the above proposed additional defendant. It is also contended that the District Collector, Thiruvananthapuram, as per the proceedings B17-83060/12 dated 13.05.2013, wrongly permitted mutation of the properties including plaint B schedule property in the name of the proposed additional 3rd defendant without being convinced about the payment of stamp duty for the above conveyance. Thus, it is contended that the learned Munsiff went wrong in arriving at the finding that the plaint B schedule property belonged to the proposed additional 3rd defendant.
5. The respondent (proposed additional 3rd defendant in the suits before the Trial Court) filed counter affidavit stating that they have already remitted the necessary stamp duty and penalty, as required by law, and hence there is absolutely no basis for the challenge raised by the petitioner in this regard. Exts.R1(a), R1(b) and R1(c) are relied on by the respondent in support of the above contention.
6. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
7. As already stated above, O.S.Nos.743/1996 and 482/1996 in which the Kovalam Resort Pvt. Ltd is sought to be impleaded as additional 3rd defendant, are suits related to the easement right of the plaintiff (petitioner in these original petitions) over the plaint C schedule way which existed through the plaint B schedule property. Originally, the plaint B schedule property, which is the servient tenement, belonged to the Indian Tourism Development Corporation represented by its General Manager, who were arraigned as defendants 1 and 2 in O.S.Nos.482/1996 and 743/1996. The plaint B schedule property, along with the other properties of the ITDC, are said to have been transferred to the Company by name Kovalam Hotels Pvt. Ltd, by the time when the aforesaid suits happened to be decreed without the defendants participating in the trial. The efforts made by Kovalam Hotels Pvt. Ltd to challenge the decrees before the Sub Court, Neyyattinkara were in vain. It is in the above circumstances that the Kovalam Hotels Pvt. Ltd filed R.S.A.Nos.215/2006 and 349/2006 before this Court against the dismissal of the appeals by the Sub Court, Neyyattinkara. As already stated above, the above second appeals were allowed by this Court and the matter was remanded to the Trial Court with specific direction to accord permission to the appellant in the second appeals to file impleadment applications. However, in the meanwhile, the Kovalam Hotels Pvt. Ltd got merged with Kovalam Resort Pvt. Ltd consequent to the amalgamation of the said companies. The scheme of arrangement pertaining to the above amalgamation was approved by the Bombay High Court on 24.02.2012. It is under the above circumstances that I.A.Nos.2726/2012 and 2727/2012 were filed by the Kovalam Resort Pvt. Ltd for getting their impleadment as additional 3rd defendant in the suits. The orders passed by the 1st Additional Munsiff, Neyyattinkara on 19.09.2012 allowing the impleadment, as prayed for in the aforesaid applications, were again challenged by the petitioners in these Original Petitions by filing O.P.(C) Nos.3826 and 3833 of 2012 contending that the proposed additional 3rd defendant had not produced the necessary materials before the Trial Court to establish their right or interest over the plaint B schedule property. The above Original Petitions were disposed of by this Court by remitting the matter again to the Trial Court with a direction to permit the production of documents in support of the plea for impleadment. The judgment in the above regard was further clarified vide orders passed in the review petitions making it clear that the documents already produced before the Trial Court, as well as the documents being produced by the parties, are to be considered by the Trial Court while deciding the applications for impleadment.
8. The impugned orders passed by the 1st Additional Munsiff, for a second time, on the impleadment applications I.A.Nos.2726/2012 and 2727/2012 would reveal that the said court arrived at the finding regarding the right of ownership of the proposed additional 3rd defendant (Kovalam Resort Pvt. Ltd) over the plaint B schedule property on the basis of the thandaper account as well as the copy of the proceedings of the District Collector which revealed that the mutation of plaint B schedule property was made in favour of the proposed additional 3rd defendant after conducting enquiry. The Trial Court also reposed upon the order of the Bombay High Court in Scheme Petition No.39/2012 for arriving at the conclusion that the plaint B schedule property was now under the ownership of the proposed additional 3rd defendant.
9. Taking into account the nature of the challenge raised by the petitioners in these Original Petitions about the failure of the proposed additional 3rd defendant to remit the necessary stamp duty for the conveyance of the properties of Kovalam Hotels Pvt. Ltd in favour of Kovalam Resort Pvt. Ltd, consequent to the amalgamation approved by the Bombay High Court, the respondents in these Original Petitions have produced Annexure R1(a) - copy of the chalan receipt in respect of the remittance of stamp duty of Rs.1,74,99,998/-, Annexure R1(b) - showing the remittance of stamp duty of 1,74,99,997/- and Annexure R1(c) - revealing the remittance of penalty Rs.1,19,00,000/-, and pointed out that the entire stamp duty along with penalty, for the delay in remittance of stamp duty, have been paid by the proposed additional 3rd defendant, and hence there is absolutely no basis for the challenge raised by the petitioner. It is further argued by the learned Senior Counsel representing the respondent that, it is after taking note of the above remittance of stamp duty and penalty that the District Collector, Thiruvananthapuram initiated proceedings for effecting mutation of the property in the name of Kovalam Resort Pvt. Ltd.
10. At this juncture, it is pointed out by the learned counsel for the petitioners that the District Collector omitted to take note of the relevant provisions envisaged under section 2(d) of the Kerala Stamp Act which requires the payment of stamp duty in Kerala for conveyance which include deed of amalgamation of two or more companies, and hence no legal sanctity could be attributed to the proceedings initiated by the District Collector directing the mutation of the plaint B schedule property in the name of Kovalam Resort Pvt. Ltd. As rightly pointed out by the learned Senior Counsel for the respondent, the argument advanced in the above regard is prima facie untenable since it could be seen that it was only after the amendment of the Kerala Stamp Act vide KG Ext.No.1960 dated 13.11.2016 that a deed of amalgamation of two or more companies was included under the definition of conveyance under the Kerala Stamp Act. As the transactions in connection with the amalgamation of Kovalam Hotels Pvt. Ltd, with Kovalam Resort Pvt. Ltd and the consequent passing over of the assets, took place long before 13.11.2016, it cannot be said that the parties concerned are bound to remit stamp duty for the same as per the provisions of Kerala Stamp Act.
11. Going by the provisions contained in Order I Rule 10 Sub Rule (2) of the Code of Civil Procedure, impleadment of parties could be ordered if it is shown that the presence of such persons in the party array is necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. As far as the present case is concerned, it could be seen from the records that the Kovalam Resort Pvt. Ltd is the present owner of the plaint B schedule property which is the servient tenement upon which the plaintiff claims easement right over the way existing through it. That being so, it is not possible to adjudicate the suits effectually and completely without the joinder of the Kovalam Resort Pvt. Ltd in the party array. If at all the petitioner is having any objection as regards the procedures followed by the District Collector, Thiruvananthapuram in effecting mutation of the plaint B schedule property in the name of Kovalam Resort Pvt. Ltd., she has to challenge the said procedures before the appropriate forum as per the relevant provisions of law applicable in that matter. At any rate, there is absolutely no scope for deciding a challenge in the above regard in petitions filed under Article 227 of the Constitution of India challenging the legality of the orders of impleadment passed by the Munsiff’s Court.
12. As a conclusion to the above discussion, I find no reason to interfere with the impugned orders passed by the 1st Additional Munsiff, Neyyattinkara on 08.01.2015 in I.A.Nos.2726/2012 and 2727/2012 directing the impleadment of the Kovalam Resort Pvt. Ltd as additional 3rd defendant in O.S.Nos.482/1996 and 743/1996.
In the result, both these Original Petitions stand dismissed. Being litigations of the year 1996, the learned Munsiff dealing with the trial shall give top priority for the expeditious disposal of these suits.
