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2005 DIGILAW 1122 (MAD)

Rajeswari v. Sellammal, by her Power Agent Selvam

2005-07-20

R.BANUMATHI

body2005
Judgment :- This Civil Revision Petition is directed against the order dated 24.02.2004 passed by the Additional District Munsif, Ariyalur in I.A.No.525 of 2003 in O.S.No.140 of 1999, allowing the Petition filed under Order I Rule 10(2) C.P.C., ordering impleading of Legal Heirs of Mani Padayachi as the Plaintiffs. The Defendant – Rajeswari is the Revision Petitioner. 2. The Parties are related as under:- Mani Padayachi Manicka Padayachi = Sellammal Selvam | | ------------------------------- | | | | Mariyayee Jeeva Chandra Bhuvaneswari | | (Proposed parties) Banu 3. O.S.No.140 of 1999:- Sellammal – Wife of Mani Padayachi represented by her Power Agent – Selvam has filed the Suit for Redemption. Case of the Plaintiff is that her Husband – Mani Padayachi borrowed a sum of Rs.3000/- from the Defendant. In security for the loan, the said Mani Padayachi has mortgaged the Plaint Schedule Properties in S.F.No.208/6 Kilapalavoor Village, Ariyalur Taluk in favour of Defendant – Rajeswari. It was agreed that in lieu of interest, the Defendant to enjoy the usufructs of the Plaint Schedule Property. The Plaintiff has filed the Suit to pass a Preliminary Decree for Redemption of the Mortgage and Bogiyam. 4. The Defendant has filed the Written Statement interalia denying locus standi of the Plaintiff – Sellammal. According to the Defendant, Sellammal was not in the village for about ten years and that she cannot represent Mani Padayachi. Alleged Power of Attorney in favour of Selvam is the concocted one and not the genuine one. The Document is not Bogiyam. Even during the lifetime of Mani Padayachi, the Suit Bogiyam Deed has been discharged in or about August, 1976. Subsequently, the said Mani Padayachi has sold the Super Structure for Rs.10,000/- to the Defendant’s Husband and he intimated the factum of sale to the Devasthanam to transfer the tenancy in favour of Defendant’s Husband. The present service connection also stands in the name of the Defendant’s Husband. Since the Bogiyam had already been discharged, the Plaintiff is not entitled to Suit for Redemption. 5. I.A.No.525 of 2003:- Since the Defendant has raised the plea that the Suit filed by Sellammal is not maintainable and denied her being the legally wedded Wife of Mani Padayachai, the Legal Heirs of Manicka Padayachi, who are the Class II Heirs have filed this Application to implead themselves as the Plaintiffs. 5. I.A.No.525 of 2003:- Since the Defendant has raised the plea that the Suit filed by Sellammal is not maintainable and denied her being the legally wedded Wife of Mani Padayachai, the Legal Heirs of Manicka Padayachi, who are the Class II Heirs have filed this Application to implead themselves as the Plaintiffs. The Respondents / Proposed Parties pleaded to implead themselves as the Plaintiffs to avoid technical difficulty and to avoid multiplicity of proceedings. According to them, by impleading them as the Plaintiffs, the Character of the Suit would not be changed. 6. Opposing the Application for impleading the proposed parties as Plaintiffs, the Defendant has filed the Counter Statement contending that the Suit has not been filed by the Plaintiff as the Legal Heirs themselves. If at all the Legal Heirs of Manicka Padayachi are really interested as the legal representatives of the Deceased – Manicka Padayachi, they have to come forward with a separate Suit. They cannot implead themselves in the Suit as parties. When the Deceased-Manicka Padayachi had sold the property to the Defendant’s Husband, impleading of the Petitioners as parties in the Suit would not serve any purpose. 7. Upon consideration of the averments in the Affidavit and in the counter Statement, learned Additional District Munsif allowed the Petition. In the Written Statement the Defendant objected the locus standi of the Sellammal. Finding that the proposed parties are Class II Heirs – Legal Representatives of Manicka Padayachi, the learned Additional District Munsif held that the proposed parties are entitled to implead themselves as the Plaintiffs in the Suit. It was further held that by impleading the proposed parties as Plaintiffs, no complication would arise and that the nature of the Suit would not be changed. 8. Aggrieved over the order of allowing impleading the proposed parties as Plaintiffs, the Defendant has preferred this Civil Revision Petition. Assailing the Impugned Order, learned counsel for the Revision Petitioner submitted that Class II heirs cannot be ordered to be impleaded. It is submitted that the Trial Court erred in coming to the conclusion that the proposed parties are necessary parties for effective adjudication. 9. Countering the arguments, learned Counsel for the Respondents / Proposed Parties has submitted that in view of the technical objections raised in the Written Statement, the proposed parties being the Class II heirs (Children of Manicka Padayachi) are entitled to implead themselves. 9. Countering the arguments, learned Counsel for the Respondents / Proposed Parties has submitted that in view of the technical objections raised in the Written Statement, the proposed parties being the Class II heirs (Children of Manicka Padayachi) are entitled to implead themselves. It is submitted that in any case, if it is found that Sellammal is not the Wife of Mani Padayachi, the proposed parties are necessary parties to conduct the Suit. It is further submitted that when the Court has exercised the discretion in ordering impleading of the proposed parties, the High Court cannot interfere with the proper exercise of discretion. 10. The short point that arises for consideration is whether the lower Court was right in ordering impleading of Legal Heirs of Manicka Padayachi (Class II Heirs) as the Plaintiffs in the Suit and whether the impleading order suffers from any jurisdictional error. 11. Order I Rule 10(2) C.P.C confers a very wide discretion upon the Court in the matter of addition or striking out the parties. If a person is vitally interested in the litigation, and if any decree might affect his interest, he may apply to be added as the parties. Admittedly, the proposed parties are the Class II Heirs of Manicka Padayachi. In the Written Statement, the Defendant has raised the plea that Sellammal has no locus standi to represent estate of Deceased-Manicka Padayachi. According to the Defendant, Sellammal is not in the Village for the past ten years and that the Defendant has denied the Power of Attorney in favour of Sellammal. In view of such technical objection raised regarding the locus standi of Sellammal, impleading of Class II heirs of Manicka Padayachi is necessary. In order that a party may be added as a party to the Suit, they should have legal interest in the subject matter of the litigation. The proposed parties being the Legal Representatives of Manicka Padayachi (who is the Brother of Mani Padayachi) being Class II Heirs have legal interest. The Defendant has also raised the plea that the Mortgage – Bogiyam had already been discharged in or about 1976 August and they also claimed that the super structure had already been sold to the Defendant’s Husband for Rs.10,000/-. The result of the Suit would have a direct bearing upon the proposed parties. The Defendant has also raised the plea that the Mortgage – Bogiyam had already been discharged in or about 1976 August and they also claimed that the super structure had already been sold to the Defendant’s Husband for Rs.10,000/-. The result of the Suit would have a direct bearing upon the proposed parties. Since the proposed parties have a legal interest, it is just and necessary that they are to be impleaded as the Plaintiffs. 12. Learned counsel for the Revision Petitioner has contended that Class II Heirs cannot be ordered to be impleaded. This contention has no merits. When the Defendant has set forth a defence, challenging the status of legally wedded wife Sellammal, the estate of Manicka Padayachi is to be represented by next heirs viz., Class II heirs. In the facts and circumstances of the case, the learned Additional District Munsif rightly found that the proposed parties are necessary parties and properly exercised the discretion in ordering impleading of the proposed parties. The Impugned Order does not suffer from any infirmity warranting interference. This Civil Revision Petition has no merits and is bound to fail. 13. For the foregoing reasons, the order dated 24.02.2004 passed by the Additional District Munsif, Ariyalur in I.A.No.525 of 2003 in O.S.No.140 of 1999 is confirmed and this Civil Revision Petition is dismissed. Consequently, the connected C.M.P.No.7518 of 2004 is also dismissed. In the facts and circumstances of the case, there is no order as to costs.