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2008 DIGILAW 3949 (MAD)

P. Kuppusamy v. T. R. Thangavelu & Another

2008-10-30

M.VENUGOPAL

body2008
Judgment :- The civil revision petitioner/proposed party has filed the present civil revision petition aggrieved against the order dated 12.02.2008 in I.A.No.1058 of 2007 in O.S.No.367 of 2004 passed by the District Munsif, Tiruchengodu in dismissing the impleading application filed under Order 1 Rule 10 of Civil Procedure Code. 2. The revision petitioner/proposed party has filed I.A.No.1058 of 2007 before the trial Court inter alia stating that during the pendency of the suit O.S.No.367 of 2004, the plaintiffs have sold the suit property for valid consideration suppressing the pendency of the suit during the life time of the first plaintiff through a registered sale deed dated 16.07.1997 and that after purchase he is in possession and enjoyment of the suit property and during the life time of first plaintiff the revision petitioner has not taken steps to implead himself as a party to the suit, since the plaintiffs have effectively prosecuted the suit and that after the intestate the death of the first plaintiff Chellamuthu on 30.04.2006 his legal heirs do not evince any interest to safeguard his interest in the suit property and that the second plaintiff is also not showing keen interest in the suit and hence, to protect his interest in the suit property permission may be accorded to him to implead himself as one of the plaintiffs along with the existing plaintiff in the above suit so as to protect his interest in the suit property. 3. The first respondent/second plaintiff has filed a counter by taking a plea to the effect that the petition filed by the revision petitioner is not maintainable as the same is not properly framed and that the revision petitioner herein was already recognized by the trial Court as a Power of Attorney Agent of the plaintiffs and that he cannot file this application as a proposed party and that application is not maintainable and as a Power of Attorney Agent of the plaintiffs he cannot project an application seeking an order from the Court against his own self and without impleading the legal heirs of the deceased first plaintiff, the application is not maintainable and therefore, prays for dismissal of the application. 4. 4. After contest, the trial Court has dismissed the I.A.No.1058 of 2007 specifically observing that the cause of action for the original suit and this petition is different, the petitioner herein played all kind of role from the beginning to till date. Since the cause of action entirely is different, it will change the nature of the suit if the petition is allowed. Hence, the petitioner herein is not entitled to implead himself as a plaintiff in the present suit. If at all he has any cause of action to sue against the 3rd respondent/3rd defendant, he can file fresh suit and resultantly, dismissed the said application. 5. It is to be noted that whether a person is a necessary or a proper party, a specific finding has to be given by the trial Court and rendering such a finding is a condition precedent to the exercise of the jurisdiction under Order 1 Rule 10 of Civil Procedure Code. It is true that the aim of the Order 1 Rule 10 of Civil Procedure Code is to prevent plurality of actions though it may incidentally have that effect. Admittedly, the person to be joined must be one whose presence is necessary as a party, it is, therefore, necessary that an individual must be legally or directly interested in the action, i.e. he can say that the litigation may lead to a result which will affect him legally i.e. by curtailing his accrued legal rights if any. 6. The trial Court merely observing that the cause of action is entirely different, it will change the nature of the suit if the petition is allowed etc., will not suffice to dismiss the I.A.No.1058 of 2007. When the revision petitioner comes out with a definite plea that his interest in the suit property is to be protected, then it is incumbent on the trial Court to render a specific finding as to whether the revision petitioner is a necessary party or not to protect his interest. In the instant case, such a finding is lacking. 7. Further, this Court is of the considered opinion that the trial Court has not appreciated the scope and ambit of Order 1 Rule 10 of Civil Procedure Code in proper perspective and resultantly, the trial Court has dismissed the I.A.No.1058 of 2007 without costs. In the instant case, such a finding is lacking. 7. Further, this Court is of the considered opinion that the trial Court has not appreciated the scope and ambit of Order 1 Rule 10 of Civil Procedure Code in proper perspective and resultantly, the trial Court has dismissed the I.A.No.1058 of 2007 without costs. Therefore, this Court, without going into the merits of the case and sitting in revision, allows the civil revision petition and sets aside the order dated 12.02.2008 passed by the trial Court in I.A.No.1058 of 2007 in the interest of justice. Resultantly, the Civil Revision Petition is allowed. The order passed by the trial Court in I.A.No.1058 of 2007 in O.S.No.367 of 2004 dated 12.02.2008 is set aside. The trial Court is directed to deal with the I.A.No.1058 of 2007 afresh considering the scope of Order 1 Rule 10 of Civil Procedure Code in proper perspective and to dispose of the said I.A. within a period of two weeks from the date of receipt of copy of this order, uninfluenced by any of the observations made by this Court in this revision. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.