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2008 DIGILAW 3915 (MAD)

G. Rajeswaran v. Mrs. Kuppammal & Others

2008-10-29

M.VENUGOPAL

body2008
Judgment :- This civil revision petition is filed by the revision petitioner/proposed party aggrieved against the order dated 12.08.2008 passed in I.A.No.14689 of 2007 in O.S.No.71 of 2006 by the IV Additional Judge, City Civil Court, Chennai in dismissing the application to implead him as a necessary party in the suit etc. 2. The trial Court has passed order in I.A.No.14689 of 2007 in O.S.No.71 of 2006 inter alia observing that the revision petitioner/proposed party is not a necessary party to decide the issues involved in the suit and without impleading him a just and proper decision can be rendered in the suit and resultantly, dismissed the application. 3. According to the learned counsel for the revision petitioner/proposed party, the trial Court has not taken into consideration of the fact that the revision petitioner/ petitioner had filed the suit O.S.No.3392 of 2003 on the file of VII Additional Judge, City Civil Court, Chennai against the 5th and 6th respondents herein for specific performance of Agreement Sale dated 011. 2001 and for a declaration that the sale deed dated 16. 2003 executed by the 5th respondent in favour of 6th respondent is null and void and not binding on the petitioner and further that the trial Court has erred in not taking into account that R1 to R4, who are the plaintiffs in suit O.S.No.71 of 2006 have filed the said suit for declaration that the sale deed dated 16. 2003 (Document No.3330 of 2003) executed by 5th respondent in favour of 6th respondent is null and void etc. and the issues involved in O.S.No.71 of 2006 and O.S.No.3392 of 2003 are identical and any decision in the suit O.S.No.71 of 2006 will have a direct bearing on the suit filed by the revision petitioner viz., O.S.No.3392 of 2003 and therefore, the trial Court ought to have allowed the I.A.No.14689 of 2007 filed for impleading the revision petitioner as proposed party and moreover, the trial Court has misjudged the facts of the case and dismissed the impleading application on mere surmises and therefore, prays for allowing the civil revision petition in furtherance of substantial cause of justice. .4. .4. In the affidavit of I.A.No.14689 of 2007 filed by the revision petitioner/proposed party, it is inter alia averred that the property measuring about 15 cents comprised in Survey No.131/1, New Survey No.131/1C2, T.S.No.15, Block No.19 of Virugambakkam Village, Mambalam-Guindy Taluk, bearing Door No.16, Old No.49, Old Plot No.49, Ottai Pillayar Koil Street, Virugambakkam, Chennai 92, originally belonged to one Lakshmi Ammal and by virtue of Settlement Deed dated 03.06.1968, she settled the same in favour of Gopal Reddy viz., the husband of Mrs.Kanniammal and Selvam equally and thereby Gopal Reddy and Selvam became co-owners each having 50% of undivided share in the said lands of 15 cents and in every inch of the said land both the parties have equal share and that the said Gopal Reddy died intestate on 23.02.1999 leaving behind him, 1) Mrs. Kanniammal, 2) Mrs. Shanthi, 3) Mrs. Dakshayani, 4) Mrs. Jaya, 5)Mrs.Seetha, 6) Selvi Manimekalai, as his legal heirs and they have not effected any partition of the property of 15 cents and by an Agreement dated 011. 2001 the said L.Rs of Gopal Reddy i.e. Mrs. Kanniammal and others entered into an Agreement with the revision petitioner agreeing to sell their undivided half share of lands in the said property, i.e. half share in 15 cents, roughly about 2850 sq.ft. Or thereabouts, for a total sale price of RS.5,00,000/- and received an advance amount of Rs.10,000/- from him etc. 5. It is the further case of the revision petitioner that on 011. 2002 the said L.Rs. of Gopal Reddy executed a General Power of Attorney in his favour authorizing him to sell, mortgage or enter into an agreement of sale and to do all acts necessary to alienate their undivided share in the said property and based on the General Power of Attorney he spent huge amounts and obtained the records and patta for the said property on 24. 2003 and the possession of the property was given to him and on the basis of the Power of Attorney, he entered into an Agreement of Sale of undivided half share in the said property to M/s.R.K.N. Construction on 04. 2003 and the 5th respondent D. Selvam and his children entered into an agreement with him dated 012. 2003 and the possession of the property was given to him and on the basis of the Power of Attorney, he entered into an Agreement of Sale of undivided half share in the said property to M/s.R.K.N. Construction on 04. 2003 and the 5th respondent D. Selvam and his children entered into an agreement with him dated 012. 2002 agreeing to sell their remaining undivided half share in the said property and handed over the possession to him and thus he came into possession of the entire property. Added further, it is the plea of the revision petitioner that the 6th respondent has obtained a sale deed from L.Rs. of Gopal Reddy as if they are the absolute owners of 2850 sq.ft. situate in the western half of the suit schedule property and sold the same for Rs.4,80,000/- as per sale deed dated 16. 2003 bearing Document No.3332 of 2003 of Sub Registrars Office, Virugambakkam which is invalid in law and not binding on him and further that the 6th respondent has purchased the 5th respondents undivided half share in suit schedule property for Rs.7,00,000/-on 16. 2003 as if he has purchased the eastern half of the suit schedule of the property bearing Document No.3329 of 2003 of Sub Registrars Office, Virugambakkam and moreover, the 6th respondent has executed a sale deed in favour of 5th respondent conveying 333 sq.ft of land in the eastern side of schedule of property as per sale deed dated 16. 2003 bearing Document No.3330 of 2003 of Sub Registrars Office, Virugambakkam and the same is not binding and hence, he has filed the suit for declaration that the sale deed dated 16. 2003 is not binding on him and that the collusion between the respondents is clear in not adding R.K.N. Construction as necessary defendants in the suit O.S.No.71 of 2006 and unless he and the said M/s. R.K.N. Construction has made as necessary parties, they will be put to very much loss and hardship and therefore, the application to implead him as a necessary party has been projected before this Court. .6. .6. In the counter filed by the 4th defendant on behalf of the respondents R1 to R3/plaintiff 1 to 3, it is among other things stated that the 5th respondent/first defendant without their knowledge and consent has sold the schedule B property and he has not obtained their signatures in the sale deed executed in favour of the 6th respondent/second defendant and that they have challenged the sale and filed the suit to declare the sale effected by the 5th respondent in favour of the 6th respondent as null and void with regard to sale deed dated 16. 2003 and that the 5th respondent sold the property on 16. 2003 to the 6th respondent and that has been challenged by way of filing of the suit and once the sale was effected, the agreement executed by the 5th respondent dated 12. 2002 is unenforceable in law and if the petitioner having an agreement executed by the 5th respondent dated 12. 2002 then he ought to have challenged the sale effected by the 5th respondent in favour of the 6th respondent on or before 16. 2006 and that the present petition has been filed on 38. 2007 which is totally time barred and that the petitioner is an unnecessary party to the proceedings and the relief claimed by both the parties are totally different and that the revision petitioner has filed a suit for specific performance and they are filed a suit to set aside the sale and therefore, there is no necessity to implead the petitioner as a party to the suit O.S.No.71 of 2006 pending on the file of IV Additional Judge, City Civil Court, Chennai and consequently, pray for dismissal of the I.A.No.14689 of 2007. 7. The revision petitioner/petitioner/plaintiff has filed a suit O.S.No.3392 of 2003 on the file of VII Additional Judge, City Civil Court, Chennai praying for a judgment and decree directing all the defendants to specifically perform their part of the contract under the Agreement of Sale dated 11. 2001 by executing and registering the sale deed in favour of the plaintiff for the undivided half share in the suit A schedule property i.e. vacant land measuring about 2850 sq.ft. on a date to be fixed by this Court etc. In the said suit the revision petitioner/petitioner/plaintiff has also sought the other following reliefs: 1. Declaring that the sale deed dated 16. on a date to be fixed by this Court etc. In the said suit the revision petitioner/petitioner/plaintiff has also sought the other following reliefs: 1. Declaring that the sale deed dated 16. 2003 executed by the seventh defendant in favour of the eight defendant bearing Document No.3330 of 2003 registered in the Sub Registrars Office of Virugambakkam is not valid in law and not binding on the plaintiff. .2. Declaring that the sale deed dated 16. 2003 bearing Document No.3329 of 2003 registered at the Sub Registrars Office of Virugambakkam, executed by the eight defendant in favour of seventh defendant, is not valid in law and not binding on the plaintiff. 3. Declaring that the sale deed dated 16. 2003 bearing Document No.3332 of 2003 registered at the Sub Registrars Office of Virugambakkam, executed by the defendants 1 to 6 in favour of seventh defendant, is not valid in law and not binding on the plaintiff. 8. The respondents 1 to 4 (in revision)/plaintiffs have filed a suit O.S.No.71 of 2006 on the file of IV Additional Judge, City Civil Court, Chennai praying for a judgment and decree against the 5th and 6th respondents/defendants to declare that the sale deed Document No.3332 of 2003 dated 16. 2003 registered in the office of Sub Registrars Office, Virugambakkam executed by the first defendant in favour of the second defendant in regard to B schedule property as null and void and order delivery of vacant possession of suit property to plaintiffs and for a permanent injunction restraining the defendants, their agents, men etc. from putting up any construction, alienation, in regard to A schedule property. 9. It appears that the revision petitioner/proposed party filed Tr.O.P.No.302 of 2007 on the file of Principal Judge, City Civil Court, Chennai to transfer the suit O.S.No.71 of 2006 pending on the file of IV Additional Judge, City Civil Court, Chennai to the file of VII Additional Judge, City Civil Court, Chennai for joint trial along with O.S.No.3392 of 2003 and the same has been dismissed on 24. 2008 assigning the reason that the cause of action on the parties are different in both the suits and there cannot be any common issues involved to order joint trial and that in O.S.No.3392 of 2003, the trial has commenced and it is in the midst of examination of plaintiff side evidence and whereas in O.S.No.71 of 2006 the application in I.A.No.14689 of 2007 to implead the petitioner as party is pending for enquiry etc. .10. According to the learned counsel for the revision petitioner/petitioner, the observation of the trial Court in its order passed in I.A.No.14689 of 2007 to the effect that the petitioner has not taken any steps to set aside the sale based on Document No.3332 of 2003 is factually incorrect and this has resulted in a wrong order of dismissal being passed by the trial Court in dismissing the said interlocutory application and that the trial Court has not taken into consideration of an important fact that the revision petitioner has already amended the plaint in O.S.No.3392 of 2003 to declare the sale deed dated 16. 2003 Document No.3332 of 2003 as null and void. 11. According to the respondents 1 to 3, already in suit O.S.No.71 of 2006 three witnesses have been examined on the side of plaintiffs and that one witness P.W.2 already examined has expired and at a belated stage the revision petitioner has filed I.A.No.14689 of 2007 and that the trial Court has correctly dismissed the impleading application and in the interest of justice the said order need not be interfered by this Court at this stage. 12. The learned counsel for the 6th respondent submits that the revision petitioner/proposed party in presenti has no right based on an unregistered agreement dated 012. 2002 entered into between him and the 5th respondent Selvam and his children and further that he is not enforcing the agreement dated 012. 2002 and moreover, as per Article 54 of the Limitation Act, the I.A.No.14689 of 2007 filed by the revision petitioner is barred in law since one has to enforce his right within three years from the date of agreement or within three years from the date of cause of action which has arisen in the matter and since the application I.A.No.14689 of 2007 has been filed belatedly, the same has been rightly dismissed by the trial Court. .13. .13. It is to be borne in mind that the power of a Court to add a party to a proceeding cannot depend solely on the question whether he has an interest in the suit property. An important question that arises for ones rumination is that whether the right of a person may be affected if he is not added as a party, however, it is to be noted that such right, will include necessarily an enforceable legal right, in the considered opinion of this Court. The main aim of Order 1 Rule 10 C.P.C. is to prevent plurality of actions, though it may have incidental effect. The only reason which makes it necessary to add a person a party to an action is that he will abide by the result of the action and the question to be settled. Resultantly, without that persons presence the matter cannot be completely and finally adjudicated upon. Logically, the said person must be directly or legally interested in the action. As a matter of a fact, a person who is neither as a necessary or a proper party cannot be allowed to be a party. Subject to the Provisions of the Limitation Act, 1963, a person may be added as a party to the suit at any stage of the suit, i.e. even during the course of arguments, even at the time of passing of the decree etc. It is true that a plaintiff cannot be compelled to file a case against a person whom he does not claim any relief. The theory of dominus litus should not be over stretched in the matter of impleading of parties. In as much as, it is the duty of the Court to ensure that if for deciding the real matter in dispute, an individual is a necessary party, the Court can order such person to be impleaded. It is an axiomatic fact and law that it is open to a Court of law to add any person as a necessary party in the suit to enable the Court to effectively determine the question involved in the suit. However, the Court has to come to a definite conclusion that the party is a necessary or proper party and the judicial discretion has to be exercised by a Court of law based on the facts and circumstances of a case. 14. However, the Court has to come to a definite conclusion that the party is a necessary or proper party and the judicial discretion has to be exercised by a Court of law based on the facts and circumstances of a case. 14. As far as the present case is concerned, in O.S.No.71 of 2006 on the file of IV Additional Judge, City Civil Court, Chennai, on the side of plaintiffs, three witnesses have been examined and reportedly P.W.2, who has examined already, has died. It is not known as to why the revision petitioner has not enforced his alleged right under the unregistered agreement dated 012. 2002 entered into by him with the 5th respondent D. Selvam and his children. Obviously, he has no right in presenti in the matter in issue. Moreover, it cannot be lost sight of that as per Article 54 of the Limitation Act, one has to enforce the said agreement within three years from the date of agreement or within three years from the date of cause of action which has arisen in the matter. The application I.A.No.14689 of 2007 filed by the revision petitioner is highly belated. Furthermore, the cause of action in both the suits are quite different, in the considered opinion of this Court. 15. Suffice it to state that on the basis of the facts and circumstances of the present case on hand, this Court is of the considered view that revision petitioner is not a necessary and proper party and in his absence a comprehensive, complete and a conclusive decision can be arrived at safely in the suit in O.S.No.71 of 2006 on the file of IV Additional Judge, City Civil Court, Chennai and in any event, a party cannot be thrust on an unwilling plaintiffs since the law does not provide for the same and viewed in this perspective, the civil revision petition fails and accordingly, the same is hereby dismissed in the interest of justice. In fine, the Civil Revision Petition is dismissed. The order passed by the trial Court in I.A.No.14689 of 2007 in O.S.No.71 of 2006 dated 12.08.2008 is affirmed by this Court for the reasons assigned in this revision. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.