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2010 DIGILAW 5264 (MAD)

C. Ramasamy v. S. S. Chinnusamy

2010-12-02

S.PALANIVELU

body2010
Judgment :- 1. The petitioners are third parties to the suit in O.S.No.200 of 2008 on the file of the Principal District Munsif, Bhavani. The suit has been filed by the respondents who are four in numbers for a declaration that re-survey undertaken by the defendants 1 to 3 who are Government Officials with respect to re-survey No.95 and 96 in Kilvani Village, Bhavani Taluk is not valid and also for a permanent injunction restraining the defendants from enjoying the properties by taking their cattle, tractor, lorry, etc., by constructing drainage nor putting up electric posts or by any other means. 2. Pending the trial of the suit, these petitioners filed application in I.A.No.1233 & 1234 of 2008 under Order 1 Rule 10(2) and Section 151 of CPC for impleading them as party defendants. 3. In the affidavit, they have alleged that the suit property is a cart-track which is a Government poromboke pathway through which the village people have been going to Bhavani river and burial ground for over 100 years, that neither the respondents nor their forefathers had been exercising any right, that the petitioners are proper and necessary parties to the suit and in their presence, the rights of the parties may be adjudicated. 4. In the counter, it is stated that it is false to state that Survey No.95 & 96 is consisting of a Government poromboke pathway, that it is incorrect to state that it is being enjoyed by the public as a public pathway for over 100 years to reach Bhavani river and burial ground, that the suit is against the Government officials and that the petitioners are not proper parties nor necessary parties to the suit. 5. After hearing both sides, the learned District Munsif, Bhavani dismissed the application by observing that there is no relief prayed for against these petitioners and hence they are not necessary parties to the suit. The said order is under challenge before this Court. 6. 5. After hearing both sides, the learned District Munsif, Bhavani dismissed the application by observing that there is no relief prayed for against these petitioners and hence they are not necessary parties to the suit. The said order is under challenge before this Court. 6. The learned counsel for the petitioner Mr.N.Manoharan would submit that in as much as the suit property is a public pathway commonly used by the village people to reach Bhavani river and burial ground, since the petitioners are also utilising the said pathway like other people, their presence in the suit is very much essential, whatever decision rendered in the suit has to be done in the presence of the petitioners, that in case if the suit is decreed in favour of the plaintiffs, these petitioners common interest will be much prejudiced. 7. Contending contra, the learned counsel for the respondents Mr.Selvathirumurugan would contend that there is no justification on the part of the petitioners to seek impleadment in the suit, that they are neither necessary nor proper parties to the suit, tht the frame of the suit and the pleadings embodied therein would candidly indicate that the relief prayed for is purely against the Government and any member of public much less the petitioners would get prejudiced by the judgment rendered in this case, that the plaintiffs have challenged the action of the Government officials in not following the proper procedure in the statute and it is a dispute purely between the plaintiffs and the Government in which the petitioners have no role to play and that their impleadment is not at all required in the case. 8. The learned counsel for the petitioners placed reliance upon a decision of this Court reported in 2007 (2) CTC 73 [Krishnan v. Rathinavel Naicker] wherein V.Ramasubramaniam,J., after analysing the subject on record with reference to various judgments of the Supreme Court and this Court, formulated following guidelines before impleading the party into a suit. 17. 8. The learned counsel for the petitioners placed reliance upon a decision of this Court reported in 2007 (2) CTC 73 [Krishnan v. Rathinavel Naicker] wherein V.Ramasubramaniam,J., after analysing the subject on record with reference to various judgments of the Supreme Court and this Court, formulated following guidelines before impleading the party into a suit. 17. In a nut shell, the tests to be applied for determining the right of a party to implead another, in a pending Suit or other proceeding, may be crystallized into the following categories: (a) If without his presence no effective and complete adjudication could be made; (b) If his presence is necessary for a complete and effectual adjudication of the dispute though no relief is claimed against him; (c) If there is cause of action against him; (d) If the relief sought in the Suit or other proceedings is likely to be made binding on him; (e) If the ultimate outcome of the proceedings is likely affect him adversely; (f) If his role is really that of a necessary witness but is sought to be camouflaged as a Necessary party; 9. Indicating Point Nos.(b) and (e) of the above said guidelines, the learned counsel would state that if the case was decided in the absence of the petitioners, their interests will be affected. He also garnered support from a decision of the Supreme Court reported in 2010 7 SCC 417 [Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd.] in which their Lordships have dealt with importance of proper party and necessary party and the implication of their absence and impleadment in a suit. Following is the relevant portion of the judgment. 15. A "necessary party" is person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "property party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. A "property party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such a person a necessary party or a proper party to the suit for specific performance. 10. The learned counsel for the petitioner would draw attention of this Court to a writ proceeding taken by the 3rd plaintiff by name S.Balasubramaniam. He filed W.P.No.23933 of 2008 and the Honble First Division Bench of this Court on 06.11.2008 dismissed the writ petition. The prayer contained there is for issuance of a writ of mandamus forbearing the respondents not to construct the burial round on the banks of Bhavani River near by the petitioners land situated in Survey Nos.94/1, 98/1, 98/2 and 98/3 of Sennimalaigoundan Pudur, Keelvani Village, Bhavani Taluk, Erode District. The properties in the civil suit and the writ proceedings are entirely different and the reliefs prayed for in both the suit and the writ are also different. 11. The learned counsel for the respondents/plaintiffs placed reliance upon the following decisions - [1] AIR 1996 MADRAS 43 (DB) [The Film Federation of India v. Union of India and others] [2] 1997 2 LW 691 [R.R.Square et. v. Mrs.Shobalatha Debi] [3] 2005 6 SCC 733 [Kasturi v. Iyyamperumal] [4] 2009 (2) CTC 697 [Leelavathi v. Sri Venkateswara Finance] [5] AIR 1976 AP 182 [B.Somaiah and another v.Smt.Amina Begum] [6] AIR 1998 RAJASTAN 128 [Girdhari Lal v. Nagar Parishad and another] [7] AIR 1985 DELHI 353 [Smt.Tulsi Devi and another v. Municipal Corporation of Delhi and another] 12. v. Mrs.Shobalatha Debi] [3] 2005 6 SCC 733 [Kasturi v. Iyyamperumal] [4] 2009 (2) CTC 697 [Leelavathi v. Sri Venkateswara Finance] [5] AIR 1976 AP 182 [B.Somaiah and another v.Smt.Amina Begum] [6] AIR 1998 RAJASTAN 128 [Girdhari Lal v. Nagar Parishad and another] [7] AIR 1985 DELHI 353 [Smt.Tulsi Devi and another v. Municipal Corporation of Delhi and another] 12. In the case of Film Federation of India, cited supra, a Division Bench of this Court has observed as follows Where the validity of a statue, Copyright (Amendment) Act, 1984 in the instant case, is challenged a private litigant who happened to be the beneficiary of the policy envisaged under the Act cannot be allowed to be joined as party because what is sought to be done is not to put the law in motion but to make an attempt to defend a legislation, to which Govt. alone was necessary party to support its own legislation. 13. Relying upon the above said decision, the learned counsel for the respondent/plaintiff would say that the plaintiffs are challenging the procedure adopted by the Government officials in not issuing any notice under Section 9(2) of the Tamil Nadu Survey and Boundaries Act and the said decision is applicable to the case. Going by the allegations in the plaint, it is learnt that during the re-survey, the plaintiffs were not issued with notice under Section 9(2) of the Tamil Nadu Survey and Boundaries Act and they came to know about the change of nomenclature of the suit property as "Government poromboke cart-track" only after receiving the re-survey in the year 2008 in the month of April when the revenue officials came and inspected the property. In this context, the particulars of the prayer incorporated in the plaint are also relevant. A declaration is sought for to make the re-survey invalid with respect to Survey No.95 & 96 for non-compliance of Section 9(2) of the above said Act and for a permanent injunction in favour of the plaintiffs. It is for the Government to agitate the claim and establish before the Court about their adopting the procedure in the re-survey process as valid. In this process, the petitioners have no role to play. 14. In the other decisions relied upon by the learned counsel for the respondents, the importance of impleadment of parties under Order 1 Rule 10(2) of CPC have been discussed. In this process, the petitioners have no role to play. 14. In the other decisions relied upon by the learned counsel for the respondents, the importance of impleadment of parties under Order 1 Rule 10(2) of CPC have been discussed. The gist of the principles laid down therein are to the effect that the provisions dealt with two types of cases only; one is where the applicant ought to have been joined as plaintiff or defendant and is not so joined, meaning thereby that he is a necessary party for proper adjudication of the suit. The other is, where without his presence the question in suit cannot be completely and effectually adjudicated upon. 15. The Court has to weigh the role to be played by the proposed parties who seek to be impleaded in a suit with reference to their rights. If the Court feels that without their presence nothing could be adjudicated, then they are necessary parties and their presence can be decided to be essential. On the other hand, if the Court deems fit that a party whose presence alone is necessary and no relief need to be accorded to the said party, then such party is a proper party and he may be added as a party. If the Court reaches a conclusion that presence of the proposed party is not at all necessary for adjudication of the claims of the parties in the suit, then he is neither a necessary party nor a proper party and there is no need to implead him. 16. Adverting to the facts of the present case, it is the claim of the petitioners that they are using the suit cart-track like other village people and in case if the title of the property is declared in favour of the plaintiffs by the Court, then, they will be much prejudiced. The contention could not be countenanced for the reason that the plaintiffs have agitated the procedure adopted by the Government officials. They say that the revenue department did not comply with the procedures incorporated in the statute. In this regard, there is no scope for impleadment of the third parties. If the proposed parties feel aggrieved by the action taken by anybody else, they may very well approach the Court in a representative capacity, representing all the villagers which would reflect common interest. In this regard, there is no scope for impleadment of the third parties. If the proposed parties feel aggrieved by the action taken by anybody else, they may very well approach the Court in a representative capacity, representing all the villagers which would reflect common interest. The present suit is purely a dispute between the plaintiffs and the Government. In these circumstances, I am of the considered opinion that the petitioners are not necessary parties to the suit and they need not be impleaded. Hence, the order challenged before this Court deserves to be confirmed and it is accordingly confirmed. The revision is devoid of merits. 17. In fine, the Civil Revision Petitions are dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.