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2005 DIGILAW 1160 (MAD)

Natarajan & Another v. Bandari Gounder

2005-07-25

R.BANUMATHI

body2005
Judgment :- This revision arises out of the order of the Additional District Munsif, Gingee, made in I.A. No.227/2001 in O.S.No. 600/1995, dismissing the petition filed under Or.1, R.10(2) CPC. The Plaintiffs are the Revision Petitioners. 2. O.S.No.600/1995:- The suit property originally belonged to the family of Ayyakannu Gounder. Genealogy of Ayyakannu Gounder is as under :- 3.The sons and daughters of Ayyakannu Gounder have partitioned the family properties by a Partition Deed dated 14.10.1959. The said Muniammal had executed a Settlement Deed dated 04.03.1962, settling the properties in favour of her daughters. The Settlement Deed executed by Muniammal was acted upon. Pursuant to the Settlement Deed, the second Defendant has no manner of interest or right in the suit property, but has been laying claim over the suit property. Hence claiming that the Plaintiffs are entitled to half share, the Plaintiffs have filed the suit for partition. 4.Denying the right and share of the Plaintiffs, the second Defendant has filed the Written Statement referring to the earlier suit O.S.No.460/1983. According to the second Defendant, the suit O.S.No.460/1983 is the comprehensive suit filed by the second Defendant. In the said suit, the present Plaintiff Lakshmi Ammal and Rukumani Ammal have filed the Written Statement. But they did not further prosecute their defence. The suit O.S.No.460/1983 was decreed in favour of the second Defendant. Pursuant to the Preliminary Decree, the second Defendant had filed I.A.No.899/1993 – Application for passing final decree. The present Plaintiffs are well aware of O.S.No.460/1983. But suppressing the suit O.S.No.460/1983, the Plaintiffs have filed the suit claiming half share in the suit properties. In the Written Statement, the second Defendant has also pleaded that the suit is bad for partial partition and also for non-impleading of necessary parties. 5. I.A.No.227/2001:- The Plaintiff has filed this application under Or.1 R.10(2) CPC to implead the parties stated in the petition. According to the Plaintiff, the proposed parties have purchased portions of the properties from the Plaintiffs and also from the first Defendant. The second Defendant has filed Written Statement raising objection for the said sale in favour of those third parties. Since the second Defendant had raised plea challenging those sale deeds, it is necessary to implead those purchasers, viz., proposed parties as D-3 to D-9. 6.The application was resisted by the second Defendant contending that the application has been filed belatedly. The second Defendant has filed Written Statement raising objection for the said sale in favour of those third parties. Since the second Defendant had raised plea challenging those sale deeds, it is necessary to implead those purchasers, viz., proposed parties as D-3 to D-9. 6.The application was resisted by the second Defendant contending that the application has been filed belatedly. It was further alleged that in the suit O.S.No.460/1983 decree was passed against the Plaintiffs and Lakshmiammal and the Plaintiffs are bound by the same. When that being so, the Plaintiffs cannot seek to implead the proposed parties as Defendants 3 to 9. 7.The trial Court dismissed the petition pointing out that the Plaintiffs have not shown as to how the proposed parties are necessary parties for effective adjudication. The learned District Munsif found that even in the plaint, it has been stated that the Plaintiffs are not claiming partition regarding the properties sold by Lakshmiammal and first Defendant and in view of that definite plea adopted by the Plaintiff, it was found that the proposed parties are not necessary parties and on those findings, the learned District Munsif dismissed the application. 8.Assailing the impugned order, the learned counsel for the revision petitioner has contended that when Lakshmi Ammal has sold the properties to the proposed parties and since the Defendant has raised the plea that the suit is bad for partial partition and non joinder of necessary parties, it is contended that for effective adjudication, the proposed parties are to be impleaded as parties to the suit. The impugned order is assailed contending that the trial Court erred in dismissing the petition on the ground of delay. It is further submitted that the application for impleading the parties could be filed at any stage of proceeding and the impugned order suffers from serious infirmity and is to be reversed. 9.The short point arises for consideration is whether the proposed parties are proper and necessary parties and whether the impugned order declining to implead the proposed parties suffers from material irregularity warranting interference ? 10.In the Written Statement of the second Defendant, the defence of partial partition and non-impleading of necessary parties had been taken, as is seen from the following : Written Statement of D-2 was filed on 6.1.1995. 10.In the Written Statement of the second Defendant, the defence of partial partition and non-impleading of necessary parties had been taken, as is seen from the following : Written Statement of D-2 was filed on 6.1.1995. Though the above plea has been set-forth in the Written Statement, no immediate steps had been taken to implead the necessary parties. The case was posted in the special list. Only at that stage, the application for impleading the parties was filed on 13.02.2001. It is relevant to note that in the application in I.A.No.227/2001, the proposed parties are not shown as the Respondents. The petition belatedly filed without showing the proposed parties as Respondents is not maintainable even on that score. 11.Already in O.S.No.460/1993, the entire dispute between the parties had been raised. In the plaint, the Plaintiffs have clearly stated that the Plaintiffs are not claiming any right regarding the properties sold by Lakshmiammal and the first Defendant. Averments in the Plaint reads : Also, the Plaintiff is not right in seeking to implead those parties who are said to have purchased the portions of the properties from Lakshmiammal from the first Defendant. In view of the definite plea set forth in the plaint, the proposed parties are neither necessary parties nor proper parties. 12.As noted earlier, the second Defendant has put-forth the defence that the suit is bad for partial partition and not impleading of necessary parties. On the strength of that defence plea put-forth by the second Defendant, the Plaintiffs cannot abandon their case and adopt the defence plea, that too six years after the filing of the Written Statement. Yet another reason is also to be pointed for declining to implead the proposed parties. O.S.No.460/1983 was filed by the second Defendant against the Plaintiffs and Rukamaniammal and Lakshmiammal. Rukmaniammal and Lakshmiammal have filed the Written Statement which was adopted by other Defendants in that suit. Thereafter, when the suit was posted in the list on 14.4.1998, the Defendants thereon did not pursue the matter. The said suit was decreed in favour of the second Defendant/Plaintiff in O.S.No.460/ 1983. Though the Plaintiffs were parties in O.S.No.460/1983, the Plaintiffs have not chosen to mention the earlier suit. There is every reason to presume that the petition has been filed to delay the trial proceedings. 13.Yet another reason is to be pointed out. The said suit was decreed in favour of the second Defendant/Plaintiff in O.S.No.460/ 1983. Though the Plaintiffs were parties in O.S.No.460/1983, the Plaintiffs have not chosen to mention the earlier suit. There is every reason to presume that the petition has been filed to delay the trial proceedings. 13.Yet another reason is to be pointed out. Section 12 of the CPC Amendment Act 1999 has deleted clause (b) of the proviso to Section 115(1) CPC. The said clause (b) was an exception to the bar on High Court's power under Section 115 to vary or reverse any order made, or any order deciding an issue in the course of a suit or other proceeding. By virtue of Section 115(1)(b) CPC, the bar was not applicable and a revision petition could lie where the order if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. This provision viz., Section 115(1)(b) CPC has been omitted by the present amendment. 14.The effect of deletion of Clause (b) of proviso is that the revisional jurisdiction in respect of an interlocutory order passed in a proceeding is curtailed. The Revision Petitioner has not made out a justifiable ground warranting interference. The impugned order does not suffer from any illegality, warranting interference. This revision has no merits and is bound to fail. 15.For the foregoing reasons, the order made in I.A. No.227/2001 in O.S.No.600/1995 (dated 24.10.2002), by the Additional District Munsif, Gingee is confirmed and this revision is dismissed. Consequently C.M.P.No.19037/2002 is also dismissed. In the circumstances of the case, there is no order as to costs.