S. Duraisamy & Others v. Nellappagounder Erode District & Others
2009-12-10
P.P.S.JANARTHANA RAJA
body2009
DigiLaw.ai
JUDGMENT The petitioners are the plaintiffs and the respondents are the defendants in the suit. The petitioners/plaintiffs filed a suit in O.S.No.391/2004 before the Principal Subordinate Judge, Erode seeking to direct division of the suit properties into three equal shares by metes and bounds and with reference to good and bad soil and allot one such share to the plaintiffs and the 5th defendant jointly and put them in separate possession; to appoint a commissioner to divide the suit properties; to restraining the defendants, their men and agents etc., from in any way and in any manner either alienating or encumbering the suit properties till final partition is effected by means of permanent injunction; to direct the defendants 1 to 4 to pay the cots of the suit to the plaintiffs; The respondents/defendants filed a written statement denying all the allegations and stated that the plaint is devoid of merits and the same should be dismissed with costs. Subsequently, the respondents/defendants filed the additional written statement, stating that the petitioners/plaintiffs are having knowledge about the alienations and the said alienations are binding upon the plaintiffs and they failed to implead alienees of the property and hence, the present suit is bad for non-joinder of proper and necessary parties and the same is liable to be dismissed at threshold without going into merits of the case. The said additional statement was filed on 112. 2005. Subsequently, the petitioners/plaintiffs filed an application in I.A.No.698/2009 stating that in consequence of additional written statement filed by the respondents/defendants, the proposed parties/respondents 8 and 9 are purchasers of the suit property from the defendants and without impleading them, the suit is bad for non-joinder of necessary parties. Therefore, the present application is filed to implead the proposed parties in the suit. The respondents/defendants also filed a counter, stating that it was filed very belatedly. At that time, the arguments has completed and the suit is reserved for orders. Therefore, it is stated that the application may be dismissed without costs. After hearing the arguments advanced by both the parties, the trial Court dismissed the application on the ground that it was filed belatedly and also the petitioners/plaintiffs ought to have filed it earlier. Aggrieved by that order, the petitioners/plaintiffs filed the present civil revision petition. 2.
Therefore, it is stated that the application may be dismissed without costs. After hearing the arguments advanced by both the parties, the trial Court dismissed the application on the ground that it was filed belatedly and also the petitioners/plaintiffs ought to have filed it earlier. Aggrieved by that order, the petitioners/plaintiffs filed the present civil revision petition. 2. The learned counsel appearing for the petitioners/plaintiffs submitted that the trial Court is wrong in refusing to implead the proposed parties as defendants, which is against law and the trial Court ought to have considered that the contesting defendants have filed the additional written statement questioning the maintainability of the suit on the ground of non joinder of necessary parties. He further submitted that the proposed parties of the purchasers of the suit property and therefore, they are the necessary parties. It is also further submitted that the trial Court failed to note that in the event of not impleading the proposed parties, the issue involved in the suit can be given quietus and otherwise, the meritorious matter will be rejected on some technical ground. Also, the proposed parties have substantial interest over the subject matter in the issue. Therefore, they are necessary parties. Also, relied on the Judgment of this Court in the case of BALAMANI AND ANOTHER Vs S.BALASUNDARAM reported in 2009 (3) CTC 760 . Therefore, the order passed by the trial Court is not in accordance with law and the same has to be set aside. 3. Learned counsel appearing for the respondents/defendants submitted that the petitioners/plaintiffs filed an application only in the belated stage for impleading them in the suit. The witnesses were examined and arguments were completed and only at that time, the petitioners/plaintiffs have filed an application. Therefore, the order passed by the trial Court is in accordance with law and the same should be confirmed. 4. Heard the counsel appearing on either side and perused the material available on record. There is no dispute that the suit was filed in the year 2004. The respondents/defendants 2 to 4 have filed the written statement on 01.04.2005 and taken specific plea of non joinder and subsequent to that, the petitioners/plaintiffs also sent legal notice dated 20.06.2005 to the respondents/defendants as well as the proposed parties. Even after that, no steps were taken to implead the parties.
The respondents/defendants 2 to 4 have filed the written statement on 01.04.2005 and taken specific plea of non joinder and subsequent to that, the petitioners/plaintiffs also sent legal notice dated 20.06.2005 to the respondents/defendants as well as the proposed parties. Even after that, no steps were taken to implead the parties. Also, it is to be noted that the respondents/defendants 2 to 4 filed additional written statement on 112. 2005 by furnishing details of the necessary parties. Thereafter, on 112. 2005, the petitioners/plaintiffs have filed a reply statement for the additional written statement. Even after that, no steps were taken to implead the parties. Therefore, the purchase made by the proposed parties are known to the petitioners/plaintiffs as early on 01.04.2005, because it is obvious that they are not necessary party to the suit, the petitioners/plaintiffs have not taken any diligent steps to implead as parties in the suit. It is also further to be noted that the evidence and arguments were completed on both the sides on 06.08.2009 and the suit also reserved for pronouncing judgment on 12.08.2009. While so, on 08.08.2009, the petitioners/plaintiffs have filed an application in I.A.No.698/2009 to re-open the case for the purpose of further arguments and adducing further evidence and the same was allowed on 10.08.2009 and the same was adjourned to 11.08.2009 for adducing further evidence and hearing further arguments. Only at that stage, the present I.A. was filed that the proposed parties are purchased the suit property from the respondents/defendants and they have to be impleaded in the suit. The learned counsel appearing for the petitioners/plaintiffs unable to explain the delay and the steps which they have not taken for filing the same. Only after the matter was posted for pronouncing judgment, the present application was filed for impleading proposed parties. The case law relied by the learned counsel appearing for the petitioners in the case of BALAMANI AND ANOTHER Vs S.BALASUNDARAM reported in 2009 (3) CTC 760 as cited supra has no relevant to the facts and circumstances of the case and in that case, one of the co-sharer was not made as a party. Therefore, the court held that the co-sharer is a necessary and proper party. In view of the same, the said judgment is not helpful to the petitioners.
Therefore, the court held that the co-sharer is a necessary and proper party. In view of the same, the said judgment is not helpful to the petitioners. Also, the Apex Court considered the scope of powers under Article 227 of the Constitution of India in the case of MS.CELINA COELHO PEREIRA AND OTHERS V. ULHAS MAHABALESHWAR KHOLKAR AND OTHERS reported in 2009(13) Scale 487 , wherein it has been held as follows: "32. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta and another, this Court held: "The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts." 33. In State through Special Cell, New Delhi V. Navjot Sandhu alias Afshan Guru and others this Court explained the power of the High Court under Article 227 thus: "Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”.
It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”. 34. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, State of Maharashtra V. Milind & others, Rajneet Singh V. Ravi Prakash, came to be considered by this Court in the case of Shamshad Ahmad & Ors. v. Tilak Raj Bajaj, (deceased) through LRs. And others and this Court held: "Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law." After taking note of the principles enunciated above, the order passed by the trial Court is in accordance with law. Under these circumstances, I dont find any error or illegality in the order of the trial Court so as to warrant interference of the order of the trial Court. It is a question of fact. It is not a perverse order and the finding rendered by the trial Court is based on the valid material and evidence. Therefore, the order passed by the trial Court is hereby confirmed. 6. In the result, the Civil Revision Petition is dismissed. No Costs. Consequently, connected miscellaneous petitions are closed.