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2006 DIGILAW 3286 (MAD)

Pichaimani v. C. Selvarani & Another

2006-11-30

K.VENKATARAMAN

body2006
Judgment :- 1. The present Civil Revision Petition is directed against the order of the learned District Munsif-cum-Judicial Magistrate, Natham dated 21.9.2006 made I.A. No.163 of 2006 in O.S. No.26 of 2006. 2. The short matrix of the case is as follows: The first respondent herein has filed the Suit in O.S. No.26 of 2006 on the file of the District Munsif-cum-Judicial Magistrate, Natham against the petitioner for recovery of certain amount on the basis of the promissory note executed by the petitioner herein in favour of the first respondent. In the said Suit, the petitioner being the defendant has filed an Application in I.A. No.163 of 2006 to implead one Chinnappan, the second respondent herein, who is the husband of the first respondent, as a proposed party in the Suit. The said Application has been dismissed by the Court below and the present revision is directed against the said order. 3. The learned counsel for the petitioner has strenuously contended that the petitioner being the defendant in the said Suit has filed a written statement stating that he has not borrowed any amount from the first respondent herein/plaintiff and the transaction was only between the petitioner and the second respondent herein/the proposed party, namely, the husband' of the plaintiff. Hence, according to the learned counsel for the petitioner, the husband of the plaintiff is a proper and necessary party to be impleaded in the Suit that has been laid by the first respondent/wife for recovery of money. In the affidavit in support of the Application under Order 1, Rule 10, C.P.C. the petitioner has averred that the petitioner has not borrowed any amount from the first respondent and the entire transaction was only with her husband, the second respondent herein and that the entire amount borrowed from the second respondent has been settled. Hence, the second respondent is a proper and necessary party to the said Suit. The learned counsel for the petitioner has further contended that the proposed party, the second respondent herein, has accepted that he used to lend money to the petitioner and hence, the second respondent has to be made as a party to the Suit that has been laid by the first respondent. 4. The learned counsel for the petitioner has further contended that the proposed party, the second respondent herein, has accepted that he used to lend money to the petitioner and hence, the second respondent has to be made as a party to the Suit that has been laid by the first respondent. 4. Further, the learned counsel has relied upon the following decisions in support of his contention that the second respondent should be made as a party to the Suit: (1) Zebee Polymers And Catons v. Balussery Polymers Pvt. Ltd., 1990 (2) LW 567 ; (2) Parthasarathi v. Dharmalingam, 89 LW 183; (3) Victory Laminations v. Plastolites Industries and others, AIR 1982 Mad. 243 ; (4) Rangaswami Gounder v. Ramaswami Gounder, AIR 1971 Mad. 328 ; (5) Parasmal Chordia v. Rajalakshmi Ammal & Another, AIR 1970 Mad. 47 ; (6) S. Subbulal Sahib v. N. Perianna Pillai, 1970 LW 493 (7) P.S. Pattabhiraman and others v. Ganapathy Kannappa Mudali and others, AIR 1962 Mad. 202 ; 5. I have heard learned counsel for the petitioner and the respondents. 6. I am unable to accept the said argument of the learned counsel for the petitioner for the simple reason that the first respondent has laid the Suit against the petitioner for recovery of certain amount due on the promissory note executed by the petitioner in favour of the first respondent. In such a Suit, it has to be considered whether the petitioner has borrowed the money from the first respondent or not; and whether the petitioner has executed the suit promissory note in favour of the first respondent or not. For that purpose, the second respondent being the husband of the first respondent need not be added as a party. 7. Furthermore, the learned counsel for the petitioner may not be right in saying that the proposed party has admitted the fact of lending of money to the petitioner. and hence, he should be impleaded as a party. The second respondent, the proposed party, has clearly stated in the counter to the said application that he used to lend small, amounts to the petitioner and the petitioner has repaid the same. In view of such honest repayments, the petitioner has borrowed a sum of Rs.50,000/- from his wife, the first respondent herein, on 2.4.2000 and executed the promissory note in her favour. In view of such honest repayments, the petitioner has borrowed a sum of Rs.50,000/- from his wife, the first respondent herein, on 2.4.2000 and executed the promissory note in her favour. This statement made by the second respondent in his counter cannot be said to be an admission made by the second respondent that the money on the promissory note has been lent by him. 8. The party can be impleaded only when there is a cause of action against him and where his presence is necessary for complete and effectual adjudication of the dispute involved in the Suit. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made, but whose presence is necessary for a complete and final decision on the question involved in the proceeding. Furthermore, a person may be added in a Suit only if he or she ought to have been joined as plaintiff or defendant, and is not joined so and the issue is that whether enforceable legal right of such party would be affected. A party to the litigation is not entitled to use the provisions of Order 1, Rule 10, C.P.C. to implead a person just for the purpose of eliciting a statement from him in whatever form so as to make use of the same as a piece of evidence. In Somasundaram Chettiyar and others v. Balasubramanian, 1998 (1) CTC 626 , this Court has held as follows: "A person does not become a necessary party merely because he has some evidence relevant to the case on hand. A necessary witness is different from a necessary party." 9. Thus, on the pleadings that have been raised by the petitioner in the affidavit in support of his application under Order 1, Rule 10, C.P.C., the petitioner has not made out a case that the second respondent is a proper and necessary party for adjudicating the Suit between the petitioner and the first respondent. As said already, the Suit has been laid by the first respondent on the basis of the promissory note executed by the petitioner in favour of the first respondent and hence, the issue that has to be decided is whether the petitioner, has executed the suit promissory note in favour of the first respondent after receiving the money or not. As said already, the Suit has been laid by the first respondent on the basis of the promissory note executed by the petitioner in favour of the first respondent and hence, the issue that has to be decided is whether the petitioner, has executed the suit promissory note in favour of the first respondent after receiving the money or not. The decisions cited by the learned counsel for bearing on the facts and circumstances of the case on hand. Hence, I am not dealing with each and every case cited by the learned counsel for the petitioner. 10. In the result, the order of the learned District Munsif-cum-Judicial Magistrate, Natham dated 21.9.2006 made in I.A. No. 163 of 2006 in O.S. No.26 of 2006 is hereby confirmed. The Civil Revision Petition stands dismissed. Consequently, C.M.P. No.1 of 2006 is closed. However, there is no order as to costs.