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2003 DIGILAW 56 (MAD)

Vijayarajan v. Mariammal

2003-01-20

A.RAMAMURTHI

body2003
Judgment : 1. Heard. By consent of parties, the civil revision petition itself was taken up for final hearing. 2. The defendants to O.S. No. 124 of 2001 on the file of District Munsif Court, Kovilpatti, have filed the revision petition aggrieved against the orders passed in I.A. No. 332 of 2002 filed by the proposed party. 3. The case in brief is as follows:- The proposed third party named Mariammal, who is the wife of the plaintiff Rathinavel Chettiar, filed petition under Order 1, Rule 10 of Code of Civil Procedure to implead her as the 3rd defendant in the suit on the ground that she is a necessary and proper party for effective adjudication. The 1st defendant is her son and the 2nd defendant is the daughter-in-law. Door No. 89/A2 is in the possession of her husband and belongs to him and the house was let out by him. Defendants 1and 2 alone filed a counter alleging that the third party is not a necessary and proper party to decide the matter. 4. Thecourt below, after hearing both parties, allowed the application filed by the third party and impleaded her as 3rd defendant in the suit. Aggrieved against this, defendants 1 and 2 have come forward with the present revision petition. 5. Thepoints that arise for consideration are (1) Whether the proposed party is a necessary and proper party for effective adjudication? (2) Whether the order passed by the court below is proper and correct? 6. POINTS :- It is admitted that the plaintiff in O.S.No. 124 of 2001 filed the suit for permanent injunction relating to the schedule mentioned property. The 1st defendant is the son and the 2nd defendant is the daughter-in-law of the plaintiff. The proposed party is only the wife of the plaintiff and mother of the 1st defendant and mother-in-law of the 2nd defendant. It is not the case of the proposed party that she is the owner of the property. On the other hand, she herself alleged that the property belongs to her husband and in fact, she is supporting the case of the plaintiff. When the third party is not contending that she is entitled to the property, prima facie it is clear that she is not a necessary and proper party. On the other hand, she herself alleged that the property belongs to her husband and in fact, she is supporting the case of the plaintiff. When the third party is not contending that she is entitled to the property, prima facie it is clear that she is not a necessary and proper party. Unfortunately the court below allowed the application on the ground that the wife wants to support the case of the plaintiff. Even if she wants to support the case of the plaintiff, she can be examined as a witness and it is not necessary that she should be impleaded as one of the parties to the suit. 7. The learned counsel for the revision petitioners placed reliance upon the decision reported in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others, 1992 (2) SCC 524 under Order 1, Rule 10 of Code of Civil Procedure. It is settled principle of law that if a person is a proper and necessary party, he can be impleaded, otherwise the application is liable to be dismissed. So far as this case is concerned, there is no material to show that the third party is claiming any independent right and title in the property and, as such, I am of the view that, she is neither necessary nor proper party and hence, the order passed by the court below is liable to be set aside. 8. For the reasons stated above, the civil revision petition is allowed and the order passed by the court below in I.A. No. 332 of 2002 dated 20.9.2002 is set aside and the application is dismissed. No costs. Consequently, CMP No. 18602 of 2002 is closed.