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Judgment
Petitioner who is the first appellant in AS No.161 of 2014 before the II Additional District Judge, Kollam has filed this OP challenging Ext.P5 order
dated 13.12.2017 passed by the appellate court. He sought to delete appellants 2 to 6 in the appeal contending that they have become unnecessary
parties to the suit as well as appeal. The court below did not accept the contention and dismissed I.A No.1892 of 2017 by the impugned order.
Suit was filed for recovery of possession and other reliefs. During the course of the trial, some of the plaintiffs in the suit passed away. Their death
was not timely brought to the notice of the trial court. It is a fact that first plaintiff filed the suit on his behalf as well as plaintiffs 2 to 6 representing
them as their power of attorney holder. The proof affidavit filed by first plaintiff was on his behalf as well as co-plaintiffs whom he represented as
their power of attorney holder. The court below having taken notice of the fact that the affidavit was filed on behalf of the dead persons also,
dismissed the suit. AS No.161 of 2014 was filed challenging the decree and judgment dismissing the suit.
During the pendency of the appeal, it was pointed out by the learned counsel for the respondents that the deceased plaintiffs were again made
parties to the appeal and legal representatives of the deceased were not brought on record. When this was pointed out, the first appellant filed
I.A.No.1892 of 2017 seeking to delete appellants 2 to 6 from the party array. The deletion was apparently sought on the ground that the first appellant
(first plaintiff) alone had claimed title over the suit property and sought recovery of possession and other reliefs though co-plaintiffs were also
represented in the suit. Going by the plaint contentions also, it appears that the first appellant alone asserted exclusive title in respect of the property
and claimed the reliefs. In that factual scenario, it goes without saying that appellants 2 to 6 (plaintiffs 2 to 6) are no longer necessary parties either in
the appeal or in the original suit.
The court below seems to have taken a view that even to seek deletion of parties also, the legal representatives ought to came on record. This view
appears to be rather fallacious. Once it is shown that first appellant alone has claimed title over the property and is entitled to sue for recovery,
presence of other appellants in the suit is quite unnecessary. In my view, the court below took a wrong view of the matter and passed the impugned
order. Even otherwise, the deletion of co-appellants should be accepted as made at first appellant's own risk.
In the result, OP succeeds and the impugned order is set aside. The courts below will permit first appellant/first plaintiff to delete appellants 2 to 6
(plaintiffs 2 to 6) from the appeal/suit and proceed with the appeal/suit. This being an old appeal of 2014, there will be a direction to the appellate court
to dispose of the appeal within a period of three months from the date of receipt of a certified copy of this judgment.