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2010 DIGILAW 5166 (MAD)

M. K. M. Mohammed Nazar v. R. A. Venugopal (Died)

2010-11-26

T.RAJA

body2010
Judgment : 1. The present civil revision petition is directed against the order passed by the learned Additional District Munsif Court, Nanguneri in I.A. No. 615 of 2004 in O.S. No. 939 of 1996, dated 31.12.2004, whereby the prayer for impleading the defendants 4 and 5 in the said suit was allowed and that order is under challenge. 2. Mr. C. Karthick, learned counsel appearing for the petitioners has assailed the said order on the ground that the Trial Court erred in law in allowing the impleading petition, for the reason that when the trial of the suit was already completed, the impleading application came to be filed at the stage of argument, is only for the purpose of dragging the matter. But overlooking that tactics employed by the respondents, the trial Court wrongly allowed the impleading application at the belated stage, as a result grave prejudice caused to the petitioners/plaintiffs herein. 3. It was also contended that there was no cause of action as against the respondents for filing the application for implement, if at all they are aggrieved they should have laid independent and separate suit. Without going for filing a separate suit, the impleading application, that too, after the trial was over, should not have been entertained by the trial Court. In support of his claim, he has also relied upon the judgment of this Court in Somasundaram Chettiar and Another v. Balasubramaniam (1998) 2 MLJ 562 : 1998 (1) L.W. 772 for the proposition that no application for implement should be allowed long after the filing of the written statement by the defendant, that too, after the completion of the trial and also relied upon the another judgment in Ramesh Hiranand Kundanmal v. Municipal Corpn, of Greater Bombay (1992) 2 MLJ 55 : 1992 (2) L.W. 720, wherein the apex Court has held that application by a third party under Order 1 Rule 10 to implead himself as a party should be refused, if the intervenor has no cause of action against the plaintiff relating to the subject matter of the existing action. For this reason, sought for setting aside the impugned order by allowing the present Civil Revision. 4. For this reason, sought for setting aside the impugned order by allowing the present Civil Revision. 4. On the other hand, the learned counsel appearing for the respondents whose application was allowed by the Trial Court for impleading them as one of the necessary parties submitted that they are got substantial interest in the suit filed by the plaintiffs in O.S. No. 939 of 1996, since the petitioners/plaintiffs herein have failed to implead them as necessary parties, after coming to know that the said suit is pending on the file of District Munsif Court, Valliyoor, they have filed the present application for implement. 5. It was also contended that the plaintiffs ‘ property bearing survey No. 177/B2 admeasuring 2.69 acres belong to the family of the petitioners herein and the deceased brother Kumarasamy Naidu and the Ramamoorthy Naidu and the present respondents ‘ mother Tmt. Guruvachiammal purchased ½ share from all the sharers by sale deeds, dated 5.1.1946, 6.5.1946 and 2.7.1946. Thereafter, the impleading applicant/respondent no. 1 herein and the deceased brothers Kumarasamy Naidu and Ramamoorthy Naidu already succeeded the properties devolved from the first petitioner ‘ s father. The first petitioner ‘ s mother Guruvachiammal relinquished her rights in favour of his sons namely the respondents herein and the two deceased brothers through registered release deeds. Since the plaint schedule properties in survey No. 177/B2 admeasuring 2.69 acres is covered under the said Sale deeds of the respondents mother and patta was also granted after subdivision in respect of S. No. 177/B2 to the impleading petitioners/respondents and their brothers in T.R. No. 454 of 1977, dated 30.6.1969. Thereafter, the impleading applicants/respondents herein are in joint enjoyment and possession. Therefore, it was contended that the impleading application was rightly allowed and such an order need not be interfered with by this Court. On that basis, grayed for dismissal of the Civil Revision Petition. 6. Heard the learned counsel appearing for the petitioners as well as the learned counsel appearing for the respondents. 7. When the plaintiffs/petitioners herein filed a suit for declaration and injunction, in respect of suit property situated in S. No. 177/B2 having an extend of 3.11 cents (1.26 hectares), it was a case of the impleading parties that they have given a representation to the Tahsildar, Nanguneri, requesting the Tahsildar to rectify the mistakes occurred in the Revenue Records. 7. When the plaintiffs/petitioners herein filed a suit for declaration and injunction, in respect of suit property situated in S. No. 177/B2 having an extend of 3.11 cents (1.26 hectares), it was a case of the impleading parties that they have given a representation to the Tahsildar, Nanguneri, requesting the Tahsildar to rectify the mistakes occurred in the Revenue Records. After perusing all the connected documents, the Tahsildar passed a comprehensive Order in C. 2444 of 2001, dated 24.9.2001, mentioned in Survey number comprising of 2 Acre and 69 Cents in Alangulam Village in Patta No. 913, which belongs to the impleading applicants/respondents herein and their brothers. Further, in the said order also, it was stated that a mistake in the extent ordered to be rectified. Therefore, the plaintiffs and the defendants in the suit are strangers to the suit property and behind the back of the impleading applicants, it was alleged that the plaintiffs and the defendants are fighting as though the properties belonged to them. Naturally, it is the duty of the trial Court to entertain the grievance of the applicants by allowing them to be a part of the proceedings. Accordingly, the Trial Court has allowed the impleading application holding that if any decree is passed, it will cast a cloud on the title to the property belonged to impleading applicants/respondents herein. Such an order according to him cannot be found fault with. 8. In respect of the citation referred by the learned counsel appearing for the petitioners, the Apex Court in the case of Ramesh Hiranand Kundanmal v. Municipal Corpn. of Greater Bombay (supra), has held that the person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. Further, it has been held that the line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. 9. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. Further, it has been held that the line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. 9. On the basis of the ratio when I look at the interest shown by the impleading applicants/respondents herein before the Trial Court, I am of the view that the impleading parties have got substantial interest in the suit property. Therefore, I do not find any infirmity in the order joining them as necessary parties in the pending suit. Sub-Rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiffs to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1, Rule 10, which provides only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. 10. Therefore, the decision cited by the learned counsel appearing for the petitioner does not give any help to the petitioner to set aside the impugned order challenged in the present revision. Similarly, in the second judgment relied on by the learned counsel appearing for the petitioners in Somasundaram Chettiar and Another v. Balasubramaniam (supra) also hold thus: It is settled law that the plaintiff may choose to implead only those persons as defendants against whom he wishes to proceed with. However, it is open to the Court to add, at any stage of the suit, a necessary party in order to enable the Court to effectively and completely adjudicate upon the questions involved in the suit. However, it is open to the Court to add, at any stage of the suit, a necessary party in order to enable the Court to effectively and completely adjudicate upon the questions involved in the suit. Thus, the question of impleadment of party has to be decided under Order 1 , Rule 10, C.P.C. which provides that only a necessary or proper party may be added. Therefore, the second decision relied on by the counsel appearing for the petitioner in my view is also not in favour of him. In any event, the impugned order permitting the impleading applicants/respondents herein joining them as necessary parties would not cause any prejudice to the parties in the pending suit. Further, in view of the pendency of the matter for long time, a direction should be given to the Trial Court, the reason being the suit was filed in the year 1996, of course I.A. was filed after nine years, however I.A. has been allowed. Therefore, the trial Court is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order. With the above observation, the civil revision petition is dismissed. Consequently, connected miscellaneous petition is dismissed. No costs.