E. Ramaswami v. XII Assistant Judge, City Civil Court, Madras and others
1994-09-15
S.S.SUBRAMANI, SRINIVASAN
body1994
DigiLaw.ai
Judgment :- Srinivasan, J. This appeal is directed against the dismissal of the writ petition filed by the appellant in limine by a single Judge of this Court. The prayers in the writ petition were as follows: “to issue an appropriate writ, order or direction in the nature of a certiroarified mandamus calling for records: (i) from respondent No.1 relating to E.P.No.2840 of 1984 quash the cryptic order dated 24. 1992 passed by the Xth Assistant Judge, City Civil Court, Madras in E.A.No.2288 of 1992 in E.A.No.4663 of 1985, (ii) from respondent No.2 relating to show cause notice W.D.C.No.D2/PPA/2377/92, dated 3. 1994 and quash the same and direct respondent No.2 to sanction the building plan PPA/D2/2377/1992, dated 30.3.1992; and (iii) direct respondent No.2 herein to make suitable corrections in the site assignment deed in accordance with the order dated 33. 1969 passed in A.R.C.No.147/68-769 by the Co-operative Sub-Registrar and pass any further or other order or orders including one of the costs throughout as this Hon’ble Court may deem fit and thus render justice.” A learned single Judge of this Court dismissed the writ petition as not maintainable. He has written a detailed order giving his reasons therefor. 2. When this appeal came up before the bench to which one of us was a party for admission, prayers 2 and 3 in the writ petition were given up and respondents 2 and 3 in the writ petition were exonerated. The appeal was confined to the first prayer in the writ petition and directed against respondents 1 and 4. The writ appeal was admitted to the limited extent and notice was ordered. 3. After the notice was served the 4th respondent has entered appearance in C.M.P.No.8539 of 1994 which was one for an order of stay restraining the 12th Assistant Judge, City Civil Court, Madras from proceedings with the execution petition in E.P.No.2840 of 1984 in any manner whatsoever till the disposal of the writ appeal and filed a counter-affidavit raising his objections to the maintainability of the writ petition as well as the maintainability of the writ appeal. It must be remembered that the fourth respondent had no opportunity to file counter-affidavit in the writ petition as it was dismissed in limine.
It must be remembered that the fourth respondent had no opportunity to file counter-affidavit in the writ petition as it was dismissed in limine. Hence he availed of the opportunity of filing a detailed counter-affidavit in the C.M.P. and in fact the counter-affidavit reads as if it is filed in the writ appeal itself. 4. In para.16 of the said affidavit it is stated that the writ petition and the appeal are not maintainable inasmuch as the persons who are also parties to the execution application and the execution proceedings are not impleaded in the writ petition or in the writ appeal. The appellant filed a reply affidavit in the said C.M.P. In the reply affidavit the appellant has not chosen to traverse the contents of para.16 of the counter-affidavit filed by the fourth respondent. 5. When the writ appeal was heard at length the counsel appearing for the fourth respondent raised several objections as to the maintainability of the writ petition and consequently the writ appeal. It is not necessary for us to set out all those objections in the view we are taking in this matter. One of the objections pressed by learned counsel for the fourth respondent is that the writ petition is not maintainable for non-joinder of necessary parties. It is pointed out by learned counsel for the fourth respondent that E.A.No.2288 of 1992 in E.P.No.2840 of 1984 the order in which is sought to be quashed by the first prayer in the writ petition was filed by the legal representatives of the deceased decree-holder, R.Vaithilingam. There were eight legal representatives in number who were actually shown in the cause title as petitioners 2 to 9. The order was passed by the City Civil Court, Madras on the application made by the said eight persons and the order was one of status quo. It was that order which was challenged by the appellant in the writ petition and he sought the quashing of the said order. Inspite of the fact that the cause title in the petition as well as the order passed by the executing court discloses all the eight names in the writ petition the petitioner/ appellant chose to implead only the fourth respondent as the party concerned. The other three respondents were officials, the first being the Judge of the City Civil Court.
Inspite of the fact that the cause title in the petition as well as the order passed by the executing court discloses all the eight names in the writ petition the petitioner/ appellant chose to implead only the fourth respondent as the party concerned. The other three respondents were officials, the first being the Judge of the City Civil Court. We have already pointed out that the respondents 2 and 3 were given up. Thus, the only party, who was a party to the execution application in the writ petition is the fourth respondent. 6. There can be no doubt whatever that the other legal representatives are necessary parties to the writ petition inasmuch as they have obtained an order in their favour from the City Civil Court in the E.A.No.2288 of 1992. The objection taken by the fourth respondent’s counsel is well-founded. Inasmuch as those parties are not impleaded in the writ petition no order can be passed in the writ petition no order can be passed by this court disturbing the order passed by the executing court. Learned counsel for the petitioner/ appellant contends that this court is exercising extraordinary original jurisdiction while dealing with a writ petition and it is not bound by the ordinary rules of procedure as to impleading parties. It is however contended by him that under Rule 6 framed by this Court in the Rules to regulate proceedings under Art.226 of the Constitution this Court is entitled to hear any party who is not impleaded as a party to the writ petition at the stage of hearing. Rule 6 reads as follows: ‘‘At the hearing of the petitioner, any person who desires to be heard in opposition to the petition and appears to the court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with notice, and subject to such conditions as to costs as the court may deem fit to impose." 7. It is therefore, submitted by learned counsel for the petitioner/ appellant that even without impleading the other parties to the execution application the writ petition can go on. Ultimately it is submitted by learned counsel that he is prepared to implead other parties at this stage as parties to the writ appeal.
It is therefore, submitted by learned counsel for the petitioner/ appellant that even without impleading the other parties to the execution application the writ petition can go on. Ultimately it is submitted by learned counsel that he is prepared to implead other parties at this stage as parties to the writ appeal. It is contended that the cause title in the writ petition shows only the 4th respondent and that cause title had to be adopted by him when he filed the writ appeal. 8. We are unable to accept any of these contentions. As pointed out by us, the parties who had secured the order of status quo from the executing court are absolutely necessary parties without whom the writ petition could not have been sustained. In the absence the writ petition was liable to be dismissed for nonjoinder of necessary parties. Not having impleaded them as parties it is not open to the appellant to say that cause title in the writ petition showed only one such party as respondent and he was bound to follow the cause title in the appeal also. It is only the fault of the petitioner in not impleading them as parties. 9. Nor are we able to accept the submission made by learned counsel for the petitioner that he should be permitted to implead those persons at this stage in the appeal. As pointed out by us already, the counter-affidavit was filed by the 4th respondent in the writ petition and that counter-affidavit was filed in the appeal. After receiving the counter-affidavit 17. 1994 the petitioner has chosen to file a long reply affidavit as early as on 28. 1994. Inspite of that the petitioner has not chosen to file any application to implead the other parties as parties to the writ petition or writ appeal till now. Even at this stage he wanted to contend that they are unnecessary parties and the court can pass orders without hearing them. Moreover it is seen that the cause title in the order passed by the executing court and the cause title in the petition filed by the fourth respondent and other legal representatives of the deceased decree-holder clearly shows the names of all the legal representatives of the decreeholder and they are shown as parties to the proceedings.
Moreover it is seen that the cause title in the order passed by the executing court and the cause title in the petition filed by the fourth respondent and other legal representatives of the deceased decree-holder clearly shows the names of all the legal representatives of the decreeholder and they are shown as parties to the proceedings. In such circumstances, there is no justification for the petitioner to contend that he was not aware of the position that they should also be impleaded as parties to the writ petition. 10. In the result, we are of the view that the writ petition is not maintainable for nonjoinder of necessary parties and consequently the order dismissing the writ petition as not maintainable on other grounds is sustained on the above. The writ appeal is dismissed. 11. However, we direct the executing court to take up the execution proceedings in E.P.No.2840 of 1984 and E.A.No.2288 of 1992 immediately for disposal and dispose of the same after hearing both the parties. The final order shall be passed in the said proceeding on or before 310. 1994, and a report shall be sent to this Court.