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2008 DIGILAW 4612 (MAD)

D. Murthy v. Maruthambal & Others

2008-12-11

M.VENUGOPAL

body2008
Judgment :- 1. This Civil Revision Petition is filed at the instance of the petitioner/plaintiff against the Order dated 18.08.2006 made in I.A.No.279 of 2005 in O.S.No.119 of 2003 by the learned Sub Judge, Attur in dismissing the application filed by the plaintiff in the suit under Order I, Rule 10 of C.P.C. praying the permission of the Court to implead the proposed party Sella Karruppa Udaiyar as 5th defendant in the suit. 2. The trial Court, while passing orders has inter alia observed that "Sale Agreement dated 16.07.2001 has been entered into between the civil revision petitioner and the first respondent and her children and that by not impleading the proposed party as 5th defendant in the suit will not be in any way affected and has resultantly dismissed the impleadment application. 3. The learned counsel appearing for the revision petitioner contends that the order passed by the trial Court in I.A. 279 of 2005 in dismissing the application is contrary to law and improper one and that the trial Court ought to have seen that the proposed party is necessary party for determination of the real matter in controversy and that the trial Court has not taken note of the fact that O.S.No.15 of 2004 was filed by the proposed party against the first defendant in the suit in question, seeking declaration of his title in respect of the very same property, the proposed party and the first defendant ought to have taken steps to implead the civil revision petitioner/plaintiff in that suit and further the sale agreement dated 16.07.2001 is much latter that than the two alleged sale deeds in favour of the first defendant and that under these circumstances, the proposed party is proper and necessary party and without his presence no proper conclusion could be arrived at in the present suit in O.S.No.119 of 2003 pending on the file of the District Munsif, Attur and therefore, prays for allowing the civil revision petition. 4. The learned counsel appearing for the revision petitioner/plaintiff further informs this Court that the Gift Deed dated 22.04.1999 has been cancelled by the plaintiff in O.S.15 of 2004, who is the proposed party herein. 5. 4. The learned counsel appearing for the revision petitioner/plaintiff further informs this Court that the Gift Deed dated 22.04.1999 has been cancelled by the plaintiff in O.S.15 of 2004, who is the proposed party herein. 5. Contending contra, the learned counsel appearing for the respondents 1 to 5 submits that the proposed party/5th respondent is not a necessary and proper party and that the trial Court has assigned cogent and convincing reasons while dismissing the impleading application and therefore, prays that this Court need not interfere with the orders passed by the trial Court at this stage sitting in revision. 6. This Court has paid its due consideration to the arguments advanced by the learned counsel appearing for the parties and noticed their respective contentions. 7. The learned counsel appearing for the revision petitioner cites a decision in Kasturi v. Iyyamperumal and others, 2005 (2) CTC 676, wherein the Honble Supreme Court has inter alia held that whether the party is necessary has to be determined by applying following tests (i) there must be a right to some relief against such party in respect of controversies involved in the proceedings; (ii) no effective decree can be passed in the absence of such party; (iii)there must be a right to some relief against such party in respect of controversies involved in the proceedings; (iv) no effective decree can be passed in the absence of such party. 8. The learned counsel for the respondents 1 to 5 relies on the decision in Anil Kumar Singh v. Shivnath Mishra alias Gadasa Guru (1995) 3 Supreme Court Cases 147, whereby and whereunder the Honble Supreme Court has held that "the respondent is neither a necessary party nor a proper party, hence need not be impleaded under Order I, Rule 10(2)of CPC". 9. In the aforesaid decision, it is held among other things that in a suit for specific performance of contract of agreement for sale in respect of immovable property, the respondent is not a party to the contract sought to be impleaded as a party and therefore, the respondent is not entitled to join as defendant under Order I, Rule 3 of CPC. 10. It is to be noted that Order I, Rule 3 of CPC is not applicable to the suit for specific performance. 11. 10. It is to be noted that Order I, Rule 3 of CPC is not applicable to the suit for specific performance. 11. The learned counsel for the respondents 1 to 5 also cites another decision in Kasturi v. Iyyamperumal and others (2005) 6 Supreme Court Cases 733, wherein the Honble Supreme Court has held that the person who claims independent title and possession adversely to title of vendor is not a necessary party, since an effective decree can be passed in his absence and no relief can be claimed against such party. It is further held that it is only the parties to the contract or parties claiming under or a person who had purchased the contracted property from the vendor with or without notice of the contract are necessary parties. 12. It can not be again said that the plaintiff is Dominus litis in a Civil Suit. However, the said doctrine is not an absolute rule in the considered opinion of this Court. Equally, the concept of Dominus litis cannot be stretched too far. It is always open to the Court to add any person as necessary party in the suit to enable the Court to effectively resolve the question involved in the suit. For exercise of discretionary power under Order I, Rule 10 of CPC, court of law is to come to a definite conclusion that a party is a necessary or proper party. Of course, the array of necessary party will depend on facts and over all assessment of each and every case that comes up for consideration. As a matter of fact, an individual ought not to be added as party because he will be incidentally affected by the judgement. The power of a court to implead a party to a proceeding cannot depend solely on the issue whether the right of a person may be affected if he is not impleaded as a party. Such right also includes an enforceable legal right. 13. The power of a court to implead a party to a proceeding cannot depend solely on the issue whether the right of a person may be affected if he is not impleaded as a party. Such right also includes an enforceable legal right. 13. As far as the present case is concerned, in as much as the sale agreement dated 16.07.2001 has been entered into between the revision petitioner /plaintiff and the first respondent and her children, this Court is of the considered view that the proposed party/5th defendant is neither a necessary nor proper party and even in his absence the suit can be decided based on the available materials on record to resolve the controversy in issue and in that view of the matter, the trial Court has exercised its discretion in proper and reasonable way and resultantly, the Civil Revision Petition is hereby dismissed. 14. In the result, the Civil Revision Petition is dismissed. The order dated 18.08.2006 made in I.A.No.279 of 2005 in O.S.No. 119 of 2003 on the file of the Sub Judge, Attur stand confirmed for the reasons assigned above. Having regard to the facts and circumstances of the case, there will however, be no order as to costs.