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2005 DIGILAW 1436 (MAD)

Lakshmi Theatre v. Narayanasamy Theatre

2005-08-25

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Section 115 C.P.C against the order dated 31.01.2003 passed by the learned Subordinate Judge, Kovilpatti in I.A.No.406 of 2002 in O.S.No.10 of 1999, as stated therein.) This Civil Revision Petition is preferred against the order dated 31.01.2003 of the learned Subordinate Judge, Kovilpatti in I.A.No.406 of 2002 in O.S.No.10 of 1999, dismissing the Petition filed under Order VI Rule 17 C.P.C, declining to amend the name of the Defendant by including the name Sathiyabama. The Plaintiff is the Revision Petitioner. 2. O.S.No.10 of 1999:- The Plaintiff – M/s. Lakshmi Theatre, Kovilpatti has filed the Suit claiming Rs.1,00,000/- (Rupees One Lakh Only) towards Damages and for Defamation. Referring to the number of Agreements between the Parties, the Plaintiff has alleged that in view of the breach of the Contract by the Defendant, the Plaintiff could not release the Film as agreed by them. Originally, the Suit was filed against M/s. Sri Narayanasamy Theatre, Kovilpatti. 3. I.A.No.406 of 2002:- This Application was filed for amending and to include the name of the Defendant. After filing the Suit, the name of the Theatre – M/s. Naarayanasamy Theatre was changed as Sathyabama Theatre represented by its Proprietor – P.S.A.Rajaguru. That Amendment was allowed by the earlier order in I.A.No.261 of 2001. This Application has been filed to Amend and to include the name of the Proprietrix as Jayachandra. According to the Plaintiff, in the Counter Statement filed in I.A.No.261 of 2001, the erstwhile Proprietor Rajaguru has raised the contention that he is not the owner of the Sathyabama Theatre. On enquiry, the Plaintiff came to know that R.Jayachandra – wife of Rajaguru is the Proprietrix of Sathyabama Theatre. This Application has been filed to include the word "Former Proprietor" before the name of P.S.A.Rajaguru and to include the name of R.Jayachandra, the present Proprietrix. 4. The Amendment Application was resisted by the Defendant contending that Jayachandra is not a necessary party. It was further alleged that without issuing Notice to the said Jayachandra, the proposed party cannot be included by filing the Amendment Petition. The Amendment Petition filed to include the name of another Defendant is not maintainable. 5. Learned Subordinate Judge dismissed the Application finding that the Amendment Application filed for impleading another Defendant - Jayachandra is not maintainable. It was further alleged that without issuing Notice to the said Jayachandra, the proposed party cannot be included by filing the Amendment Petition. The Amendment Petition filed to include the name of another Defendant is not maintainable. 5. Learned Subordinate Judge dismissed the Application finding that the Amendment Application filed for impleading another Defendant - Jayachandra is not maintainable. The lower Court observed that without issuing Notice to the proposed party and without knowing the objection of Jayachandra, the Amendment Application to implead the party cannot be ordered. 6. Aggrieved over the order of dismissal of the Amendment Application, the Plaintiff has preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner has contended that the inclusion of the present Proprietrix is only consequential to the earlier Amendment in I.A.No.261 of 2001. It is contended that on changing the name of the Defendant Theatre, the Proprietorship of Jayachandra has been ascertained and her name is to be included as the Defendant. It is further contended that valid objection could not be raised for impleading Jayachandra since her Proprietorship of the Theatre cannot be objected to. 7. Learned counsel for the Respondent / Defendant has submitted that the Application under Order 1 Rule 10(2) C.P.C ought to have been filed to implead Jayachandra as the Defendant. It is further contended that on such Application only after issuance of the Notice to the proposed parties and upon hearing the objections that Application could be allowed. It is further submitted that without filing any Application under Order 1 Rule 10(2) C.P.C straight away the Proprietrix cannot be impleaded as a Defendant by filing the Amendment Application. 8. The Plaintiff – M/s. Lakshmi Theatre has filed the Suit claiming Rs.1,00,000/- towards Damages and Defamation. Originally the Suit was filed against the M/s.Narayanaswamy Theatre represented by its Proprietor – Rajaguru. By the order in I.A.No.261 of 2001, the name of the Defendant Theatre has been amended as Sathiyabama Theatre. According to the Plaintiff, Jayachandra – Wife of P.S.A.Rajaguru is the present Proprietrix and Jayachandra is to be impleaded as the Proprietrix of Sathiyabama Theatre. The Defendant – P.S.A.Rajaguru is also sought to be retained by amending the short cause title and long cause tile as "...Kd;dhs; mjpgh;...". Strangely, a party is sought to be impleaded by filing the Amendment Application. The Defendant – P.S.A.Rajaguru is also sought to be retained by amending the short cause title and long cause tile as "...Kd;dhs; mjpgh;...". Strangely, a party is sought to be impleaded by filing the Amendment Application. Even at the time of changing the Theatre name, the Plaintiff could have changed the name of the Proprietor also. Now, without issuing Notice to the proposed party and upon hearing the objection (if any) by the proposed party, she cannot be brought on record as a Defendant by simple Amendment Application. As observed by the lower Court, before impleading her the proposed party ought to be heard. That opportunity of hearing cannot be shut out on the ground that she is the Wife of the Defendant – Rajaguru. Learned Subordinate Judge has rightly ordered that the proposed party – Jayachandra cannot be impleaded as the Defendant without issuing notice to her and without hearing her objection. 9. The Impugned order does not suffer from any irregularity. It is stated that the proprietorship of the Theatre has been changed in the name of the Defendant's Wife – Jayachandra subsequently. If that be so, it is open to the Revision Petitioner / Plaintiff to make out another Application under Order 1 Rule 10(2) C.P.C for impleading the present Proprietrix viz., Jayachandra. The dismissal of the Application in I.A.No.406 of 2002 and this Civil Revision Petition may not be an impediment for filing any such Application. 10. With the above observation, this Civil Revision Petition is dismissed confirming the order-dated 31.01.2003 of the learned Subordinate Judge, Kovilpatti in I.A.No.406 of 2002 in O.S.No.10 of 1999. In the circumstances of the case, there is no order as to costs.