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2008 DIGILAW 197 (MAD)

T. Ashokan v. Leelavenkatapathy and Others

2008-01-22

K.VENKATARAMAN

body2008
Judgment : The present revision is directed against the order of the learned Principal Subordinate Judge, Erode dated 21.3.2007 made in C.M.A. No. 17 of 2005 reversing the fair and final order of the learned second Additional District Munsif, Erode dated 7.1.2005 made in I.A. No. 741 of 2004 in O.S. No. 668 of 2004. 2. The plaintiff in the above referred suit is the petitioner herein and the 3 party in the said proceedings is the first respondent. The other respondents are defendants 1 to 7. 3. The petitioner herein originally laid the suit in O.S. No. 778 of 2001 before the Subordinate Judge, Erode against the respondents 2 to 8 herein for declaration that the sale deeds dated 8.1.2001 and 9.1.2001 executed by the second defendant as power agent of the first defendant in favour of the defendants 3 to 7 in respect of the suit properties are null and void as against the plaintiff and other creditors of the first defendant and for cost. The said suit has been transferred to the file of the Second Additional District Munsif, Erode and renumbered as O.S. No. 668 of 2004. In the said suit, the first respondent herein being the 3rd party filed an application for impleading him as 8th defendant in the suit. The said application was originally dismissed by the learned Additional District Munsif, Erode by his fair and final order dated 7.1.2005. Aggrieved over the said order, the first respondent herein filed an appeal in C.M.A. No. 17 of 2005 before the learned Principal Subordinate Judge, Erode. The learned Principal Subordinate Judger by his judgment and decree dated 21.3.2007 allowed the appeal and the present revision is directed against the said order. 4. Mr. P. Valliappan, learned counsel appearing for the petitioner contended that as against the order dismissing the application under Order 1Rule 10 C.P.C, Civil Miscellaneous Appeal will not lie and only the revision will lie before this Court. Further, the learned counsel appearing for the petitioner contended that the first respondent is not a proper and necessary party in the suit that has been laid by the petitioner. 5. Further, the learned counsel appearing for the petitioner contended that the first respondent is not a proper and necessary party in the suit that has been laid by the petitioner. 5. Per contra, the learned counsel appearing for the first respondent contended that though originally the application has been filed under Order 1Rule 10 C.P.C, later a memo has been filed before the lower Court for treating the said application under Order 22Rule 10(1)(a) of C.P.C. and hence, the civil miscellaneous appeal preferred against the order of the lower Court is perfectly maintainable. Further, the learned counsel appearing for the first respondent pointed out that the first respondent is not only a proper party but also a necessary party in the suit that had been laid by the petitioner. 6. I have heard the learned counsel appearing for the petitioner, and the learned counsel appearing for the first respondent. The first respondent admittedly filed the application originally under Order 1Rule 10 C.P.C. However, it is the case of the first respondent that later a memo has been filed for treating the application filed under Order 1Rule 10 C.P.C. as an application filed under Order 22Rule 10(1) (a) of C.P.C. The memo said to have been filed by the first respondent is admittedly missing even as per the first respondent. The first respondent in the grounds of appeal before the learned Principal Subordinate Judge, Erode has specifically taken the said point as the ground. Even otherwise, the application that has been filed by the first respondent would very well be taken an application filed under Order 22Rule 10(1)(a) filed by this Court while deciding the revision. If the application is treated as one filed under Order 22Rule 10(1)(a) C.P.C. definitely the civil miscellaneous appeal is maintainable against the order rejecting the said application. 7. The next submission of the learned counsel appearing for the petitioner is that the first respondent/the 3rd party is not a proper and necessary party in the suit that has been laid against the petitioner. But I am unable to accept the said submission of the learned counsel appearing for the petitioner for the sole reason that the petitioner himself filed an application in I.A. No. 1162 of 2001 for impleading the first respondent herein as a party to the suit. But I am unable to accept the said submission of the learned counsel appearing for the petitioner for the sole reason that the petitioner himself filed an application in I.A. No. 1162 of 2001 for impleading the first respondent herein as a party to the suit. Though the said application has been filed later the petitioner has not pursued the said application and laid it to be dismissed for default. The said fact will clearly prove that even the petitioner thought it fit that the first respondent herein is a proper and necessary party to the suit. Furthermore, it has not been shown what prejudice that would be caused to the petitioner by impleading the first respondent herein as a party to the suit. In fact, it would curtail the multiplicity of the proceedings. 8. In view of the reasons stated above, I am not inclined to interfere with the judgment and decree of the learned Principal Subordinate Judge, Erode dated 21.3.2007 made in C.M.A. No. 17 of 2005. In the result, the Civil Revision Petition stands dismissed. However, since the suit is of the year 2001, I direct the learned Additional District Munsif, Erode to take up the suit in O.S. No. 688 of 2004 and dispose of the same as expeditiously as possible preferably on or before 30.4.2008. No costs. Consequently, connected miscellaneous petition is also dismissed.