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2010 DIGILAW 1583 (MAD)

Rohini v. S. Manivel

2010-04-06

M.JAICHANDREN

body2010
Judgment :- This Civil Revision Petition has been filed against the order, dated 18.9.2009, made in I.A.No.325 of 2009, in O.S.No.30 of 2006, on the file of the Additional District Judge, Fast Tract Court-I, Coimbatore. 2. The petitioner in the present civil revision petition had filed I.A.No.325 of 2009, under Order I Rule 10 of the Civil Procedure Code, 1908, praying that the trial Court may be pleased to implead the petitioner, as the third defendant in the said suit. 3. The petitioner, who is the proposed party, had filed the interlocutory application, in I.A.No.325 of 2009, stating that the suit property is an ancestral property of her family. The petitioner, her father Vairamuthu, and her brother Sivaprakasam had constituted a Joint Hindu family. The suit property and certain other properties belong to the joint family. The petitioner got married in the year, 1999. After the Hindu Succession Act, 1956, was amended in the year, 1989, the petitioner has been treated to be on par with her brother Sivaprakasam. As such, the petitioner is entitled to 1/3 rd share in the suit property. 4. The petitioner has further stated that the father of the petitioner, Vairamuthu, without appreciating the fact that the petitioner has a share in the joint Hindu family property, had created a sale deed in favour of the plaintiff, in O.S.No.30 of 2006, on 7.11.2003. The petitioner is deemed to be in joint possession of the suit property. While so, the father of the petitioner had filed the suit for delivery of possession from the second and the third respondents, as though they are in physical possession of the suit property. 5. The suit had been filed, without impleading the petitioner as a party, even though she has equal rights in respect of the suit property. It has also been stated that the petitioner had already filed a suit, in O.S.No.441 of 2009, on the file of the Principal District Judge, Coimbatore, claiming partition in respect of the suit property and certain other properties. Therefore, the petitioner is a necessary party to the proceedings, in O.S.No.30 of 2006. In such circumstances, the petitioner had filed an interlocutory application, in I.A.No.325 of 2009, to implead her, as the third defendant in the suit, in O.S.No.30 of 2006. 6. Therefore, the petitioner is a necessary party to the proceedings, in O.S.No.30 of 2006. In such circumstances, the petitioner had filed an interlocutory application, in I.A.No.325 of 2009, to implead her, as the third defendant in the suit, in O.S.No.30 of 2006. 6. In the counter statement filed on behalf of the first respondent it has been stated that the application filed by the petitioner is an abuse of the process of Court. It has been filed only with a view to harass the first respondent. The petitioner is not entitled to get impleaded as a party to the proceedings in the suit, as she is neither a necessary party, nor a proper party to the suit proceedings. 7. It has also been stated that the first respondent had filed the suit, in O.S.No.30 of 2006, on the file of the District Court, Coimbatore, praying for recovery of possession and for damages against the second and the third respondents. The petitioner is not residing in the suit property, after she had been married, in the year, 1999. The first respondent, being the plaintiff in the said suit, is `Dominus litus’. The averment of the petitioner that she is in joint possession and enjoyment of the property is false. Further, the claim of the petitioner that she is entitled to 1/3 rd share of the suit property is false and untenable. The suit filed by the petitioner, in O.S.No.441 of 2009, on the file of the District Court, Coimbatore, is only an after thought, in order to stall the proceedings in the suit, in O.S.No.30 of 2006. 8. The trial Court, by its order, dated 18.9.2009, had dismissed the interlocutory application filed by the petitioner holding that the petitioner is not a necessary party to decide the issues arising for its consideration. The relief sought for by the petitioner is different from the relief sought for in the suit, in O.S.No.30 of 2006. When the suit filed by the first respondent is for the relief of recovery of possession and for damages, the relief sought for by the petitioner is for 1/3rd share of the suit schedule property. Therefore, the trial Court had held that there is no necessity to implead the petitioner, as the third defendant. 9. When the suit filed by the first respondent is for the relief of recovery of possession and for damages, the relief sought for by the petitioner is for 1/3rd share of the suit schedule property. Therefore, the trial Court had held that there is no necessity to implead the petitioner, as the third defendant. 9. The learned counsel appearing on behalf of the petitioner had submitted that the trial Court had failed to note that the petitioner has a right to get 1/3 rd share in the suit property, as it is a joint family property. The trial Court had erred in holding that the petitioner is, neither a proper party, nor a necessary party to the suit proceedings. The lower Court ought to have considered the fact that the petitioner has filed a suit, in O.S.No.441 of 2009, on the file of the District Court, Coimbatore, for the partition of the suit property. After the Hindu Succession Act, 1956, had been amended in the year, 1989, the petitioner has an equal share in the Hindu joint family property, as that of a son. Therefore, the order of the trial Court, dated 18.9.2009, made in I.A.No.325 of 2009, is liable to be set aside. 10. The learned counsel appearing on behalf of the first respondent had submitted that the petitioner cannot be held to a proper party or a necessary party to the suit proceedings, in O.S.No.30 of 2006. The suit filed by the petitioner, in O.S.No.441 of 2009, before the District Court, Coimbatore, is only the result of an afterthought. The suit filed by the first respondent, in O.S.No.30 of 2006, is only for recovery of possession. Therefore, the trial Court was right in dismissing the interlocutory application filed by the petitioner, as her request for being impleaded, as the third defendant in the suit, is not sustainable. The first respondent, being the plaintiff in the suit, is `dominus litus and therefore, it is for the plaintiff to choose the parties to the suit, as defendants. Since, the application filed by the petitioner is devoid of merits, it is liable to be dismissed. 11. The first respondent, being the plaintiff in the suit, is `dominus litus and therefore, it is for the plaintiff to choose the parties to the suit, as defendants. Since, the application filed by the petitioner is devoid of merits, it is liable to be dismissed. 11. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as prayed for by the petitioner in the present civil revision petition. The petitioner has not been in a position to show that she is a proper or a necessary party to the suit proceedings, in O.S.No.30 of 2006, on the file of the Additional District Judge, Fast Track Court-I, Coimbatore. 12. The suit filed by the first respondent is for recovery of possession and for damages against the defendants. Whereas, the petitioner is seeking 1/3 rd share in the suit property, which is said to be a Hindu joint family property. The trial Court was right in holding that the petitioner is neither a necessary party, nor a proper party in order to decide the issues arising for its consideration in the suit, in O.S.No.30 of 2006. The first respondent, being the plaintiff in the said suit, is `dominus litus. It is for the plaintiff to choose the parties to the suit, as defendants. In such circumstances, the order of the trial Court, dated 18.9.2009, made in I.A.No.325 of 2009, cannot be held to be erroneous or illegal. Accordingly, the civil revision petition is liable to be dismissed, as devoid of merits. Hence it is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.