Research › Search › Judgment

Madras High Court · body

2006 DIGILAW 2055 (MAD)

Govindammal & Another v. K. Velmurugan & Others

2006-08-18

S.RAJESWARAN

body2006
Judgment :- (PRAYER: Civil Revision Petition is filed against the order and decretal order dated 07.06.2004 made in I.A.No.255 of 2003 in A.S.No.28 of 2003 on the file of Sub Court, Chidambaram.) This Civil Revision Petition is filed against the order and decretal order dated 07.06.2004 made in I.A.No.255 of 2003 in A.S.No.28 of 2003 on the file of Sub Court, Chidambaram. 2. The respondents 6 and 7 in I.A.No.255 of 2003 in A.S.No.28 of 2003 are the revision petitioners. The first respondent herein filed the suit in O.S.No.99 of 2000 against the respondents 2 to 6 herein and also against the revision petitioners herein for a judgment and decree, declaring that the suit schedule properties are owned by him and also for recovery of possession. The revision petitioners resisted the suit by filing a written statement wherein, it was specifically averred that the seventh respondent in this revision petition should have been added as a necessary party and the suit should be dismissed for non-joinder of necessary parties, i.e., the seventh respondent herein. The Trial Court framed a specific issue as to whether the suit is bad for non joinder of the seventh respondent herein and by Judgment dated 30.01.2003 held, that the suit is bad for not adding the seventh respondent herein as a party in the suit and dismissed the suit. Thus the suit itself was dismissed on the ground that the plaintiff did not add the 7th respondent herein as a party in the suit who is a necessary party. 3. Against the dismissal of the suit, the first respondent herein filed A.S.No.28 of 2003. In I.A.No.255 of 2003 filed under Order 1 Rule 10 of C.P.C., the first respondent herein who is the appellant before the lower Appellate Court, has prayed to add the seventh respondent herein as a party in the appeal proceedings. The lower Appellate Court by an order dated 07.06.2004 allowed the said I.A.No.255 of 2003 and directed the first respondent herein to implead the seventh respondent herein as a necessary party to the appeal proceedings. Aggrieved against the said order dated 7.6.2004, the above Civil Revision Petition has been filed under Article 227 of the Constitution of India. 4. Heard the learned counsel for the revision petitioners and also the learned counsel for the 1st respondent. Aggrieved against the said order dated 7.6.2004, the above Civil Revision Petition has been filed under Article 227 of the Constitution of India. 4. Heard the learned counsel for the revision petitioners and also the learned counsel for the 1st respondent. I have also gone through the affidavit filed in support of this petition and the counter affidavit. The respondents 2 to 7 have been given up by the revision petitioners. 5. It is not in dispute that a specific objection was taken by the revision petitioners in the written statement itself filed before the Trial Court that Pachayammal, the 7th respondent herein is a necessary party and the suit itself is bad for not adding her as a party in O.S.No.99 of 2000. But the first respondent did not take any step to implead the seventh respondent in O.S.No.99 of 2000 and allowed the suit proceedings to continue. Only when the suit was dismissed on the ground that the suit was bad for not adding the seventh respondent as a party, who is a necessary party, as held by the Trial Court, the first respondent, only in the appeal proceedings filed I.A.No.255 of 2003 in A.S.No.28 of 2003 under Order 1 Rule 10 of C.P.C. to implead the said Pachayammal as a respondent in the appeal. No explanation nor any acceptable reasons were given by the first respondent for not adding the said Pachayammal as a party in the suit. The appellate Court observed that having taken an objection for not adding the said Pachayammal as a party in the suit, it is not proper for the revision petitioners to oppose the impleading petition filed by the first respondent in I.A.No.255 of 2003 in A.S.No.28 of 2003. 6. I am unable to accept the reason given by the lower Appellate Court for allowing the I.A.No.255 of 2003. The learned Appellate Court has failed to advert to the fact that the first respondent herein has not come with any acceptable reasons for not adding the seventh respondent as a party in O.S.No.99/2000 even though a specific averment was pleaded by the revision petitioners in the written statement filed by them. The learned Appellate Court has failed to advert to the fact that the first respondent herein has not come with any acceptable reasons for not adding the seventh respondent as a party in O.S.No.99/2000 even though a specific averment was pleaded by the revision petitioners in the written statement filed by them. In such circumstances, there is force in the submissions made by the learned counsel for the petitioners that the first respondent is now trying to fill up the lacuna by impleading the seventh respondent in the appeal, having failed to implead her in the suit before the trial Court. 7. In the result, the order of the lower Appellate Court dated 07.06.2004 is vitiated and is liable to be set aside. Consequently, the Civil Revision Petition is allowed. No costs. C.M.P.No.410 of 2005 is closed.