Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 562 (MAD)

P. Kalamani v. Mohandoss & Others

2009-02-16

G.RAJASURIA

body2009
Judgment : This civil revision petition is filed against the order dated 10. 2005 passed in I.A.No.1476 of 2005 in O.S.No.235 of 2003 by the III Additional District Munsif Court, Kallakurichi(II Additional District Munsif Judge, III Additional District Judge, Kallakurichi (Full additional incharge). Inveighing the order dated 10. 2005 passed in I.A.No.1476 of 2005 in O.S.No.235 of 2003 by the III Additional District Munsif Court, Kallakurichi(II Additional District Munsif Judge, III Additional District Judge, Kallakurichi (Full additional incharge), this civil revision petition is focussed. 2. A summation and summarisation of facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus:- The revision petitioner, as plaintiff, filed the suit O.S.No.235 of 2003 seeking the following relief: "to grant permanent injunction restraining the defendants, their men and agents from interfering with the possession and enjoyment of the plaintiff in the suit property." During the pendency of the suit, D1-Venkatesan Chettiar died. Whereupon I.A.No.1476 of 2005 was filed by the plaintiff under Order 22 Rule 4 of C.P.C. seeking to implead the LRs of deceased Venkatesa Chettiar by citing R2 to R7 herein as his Legal heirs, in addition to the already existing R1-Mohandoss(D2). The lower Court dismissed the said application on the sole ground that according to Mohandoss(D2), deceased Venkatesa Chettiar, had one other son namely Nithiyanandham, who pre-deceased Venkatesa Chettiar and that Nithiyanandhams legal heirs viz., wife and children are in existence and that they should also be added as LRs of Venkatesa Chettiar, but it was not done so. With that finding, the lower Court dismissed the said application. Being disconcerted and dis-satisfied with the said order of the lower Court, this civil revision petition is focussed by the plaintiff on various grounds. 3. With that finding, the lower Court dismissed the said application. Being disconcerted and dis-satisfied with the said order of the lower Court, this civil revision petition is focussed by the plaintiff on various grounds. 3. The learned counsel for the plaintiff/revision petitioner, placing reliance on the grounds of revision, would develop his argument that the suit itself is for injunction as against father and son, namely, Venkatesa Chettiar (Deceased D1) and his son Mohandoss(D2); consequent upon the death of Venkatesa Chettiar, the plaintiff though fit to implead the deceased D1s existing children, namely, R2 to R7 herein; simply because D2 raised the plea that the legal heirs of deceased Nithiyanandham, who happened to be the son of deceased Venkatesa Chettiar, should also be impleaded, the lower Court unjustifiably dismissed the application; the plaintiff, being dominos litus, is having the right to decide as to who should be added as defendants in an injunction suit and who should not be added; so, when the plaintiff felt that there would be no disturbance from the legal heirs of deceased Nithiyanandham, then he cannot be compelled to add them in an injunction suit. 4. Despite printing the names of the respondents, no one appeared. 5. I could see considerable force in the submission made by the learned counsel for the petitioner/plaintiff that in an injunction suit and that too, when already the original defendant-D2 (the son of deceased D1) is present before the Court and that the plaintiff wanted to add the existing children of deceased Venkatesa Chettiar as LRs of Venkatesa Chettiar, there could have been no hesitation for the Court to allow such an application. The Court cannot observe or hold, mandate or order that the grand children of Venkatesa Chettiar, being class-I heirs of Venkatesa Chettiar, should also be added. Impleadment of the necessary parties will differ from case to case. Blindly in all cases, the Court should not usher in the concept of impleading all legal representatives of deceased in entirety and give direction to the parties to implead all the LRs of the deceased oblivious of the necessity and circumstances. Furthermore, it is not a partition suit as correctly pointed out by the learned counsel for the petitioner. The judgement that would be rendered would be a judgement in personam and not a judgement in rem. Furthermore, it is not a partition suit as correctly pointed out by the learned counsel for the petitioner. The judgement that would be rendered would be a judgement in personam and not a judgement in rem. Hence, in these circumstances, I am of the opinion that the order passed by the lower Court should be interfered with, accordingly it is set aside and consequently the I.A.No.1476 of 2005 shall stand allowed. 6. In the result, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.