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2013 DIGILAW 4118 (MAD)

Ramakrishnan v. K. Shanmugasundaram

2013-12-06

K.KALYANASUNDARAM

body2013
JUDGMENT 1. This civil revision petition is directed against order dated 19.02.2010 passed by the Principal Sub-Court, Erode, in I.A. No. 136 of 2010 in O.S. No. 197 of 2005. 2. The first respondent herein- Mr. A. Shanmugasundaram filed the suit in O.S. No. 197 of 2005 for partition and separate possession of the suit properties, against his mother and brother Mr. K. Krishnamurthy. The petitioners are the sons of the said Krishnamurthy. The petitioners filed a petition in I.A. No. 136 of 2010 to implead them as defendants in the suit. They have stated in the affidavit that the suit properties are ancestral properties and they are in joint possession and enjoyment of the same. They further contended that they have not believed that their father will defend the suit properly. The learned Sub-Judge, Erode, dismissed the said application, as against which, the present revision has been filed. 3. Heard Mr. N. Manokaran, learned counsel for the petitioner and perused the records. Despite notice having been served on the respondents and their names also are printed in the cause list, there is no appearance for them. 4. It is contended by the learned counsel for the petitioners that though the father of the petitioners was added as second defendant in the suit and the properties are ancestral properties, since the petitioners stated that they have no faith that their father will conduct the suit in an effective manner, they should be impleaded as defendants in the suit. The learned counsel further contended that the children of the plaintiff have filed a similar application and the same was allowed by the Sub-Judge, Erode. It is further contended that to avoid the multiplicity of proceedings, the petitioners can be added as parties to the suit. 5. It is settled law that the plaintiff is the dominus litis and therefore, in a normal circumstances a person cannot be impleaded as a party for mere asking. Admittedly the suit properties are ancestral properties. The first respondent herein has filed the suit against his mother and brother. The petitioners are the sons of the second defendant. Though the petitioners have stated in the affidavit that they have not believed that their father will defend the suit in an effective manner, they did not make any allegation against their father in the affidavit. The petitioners can claim right only through their father/the second defendant. The petitioners are the sons of the second defendant. Though the petitioners have stated in the affidavit that they have not believed that their father will defend the suit in an effective manner, they did not make any allegation against their father in the affidavit. The petitioners can claim right only through their father/the second defendant. Merely because the children of the plaintiff have been impleaded in the suit, the petitioners cannot take advantage of the same, unless the petitioners prove that they are proper and necessary parties to the suit. 6. A Division Bench of this Court, in the judgment reported in 1998 (2) CTC 470 – Dr.S. Kameswaran v. A. Jayaraman and another has held that when there is no cause of auction for the plaintiff against the proposed party the said party cannot be impleaded 7. The learned Sub-Judge has rightly held that the petitioners can claim right only through their father-the second defendant and from his share in the suit properties and that the petitioner’s father is contesting the suit as second defendant. The learned Sub-Judge further held that the petitioners are not necessary parties to the suit. I could see no infirmity or irregularity in the order passed by the learned Sub-Judge, Erode. 8. In the result, the civil revision petition is dismissed. Considering the fact that the suit is pending from 2005, the learned Sub-Judge, Erode, is directed to dispose of the suit as expeditiously as possible, preferably on or before 25.3.2014. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.