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2013 DIGILAW 987 (MAD)

P. N. Krishnan v. R. Shanmugaraj

2013-02-18

M.VENUGOPAL

body2013
JUDGMENT 1. The Petitioner/First Respondent/First Defendant has preferred the instant Civil Revision Petition as against the order dated 26.10.2010 in I.A.No.150 of 2010 in O.S.No.670 of 2008 passed by the Learned Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore. 2. The Learned Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore, while passing the impugned order dated 26.10.2010 in I.A.No.150 of 2010 in O.S.No.670 of 2008, has observed that 'Heard both sides represented this petition may be allowed' and resultantly, allowed the petition without costs. 3. Challenging the impugned order in I.A.No.150 of 2010 in O.S.No.670 of 2008, dated 26.10.2010 passed by the Learned Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore, the Petitioner/First Defendant, being an aggrieved person, contends in this Civil Revision Petition before this Court that the trial Court has passed the impugned order in I.A.No.150 of 2010 in O.S.No.670 of 2008, dated 26.10.2010 (in allowing the impleading petition in I.A.No.150 of 2010 -ordering the impleading of the Bank), without assigning any acceptable reason. 4. The Learned Counsel for the Petitioner/First Defendant urges before this Court that the proposed party M/s. State Bank of India, Veerakeralam Branch, Coimbatore, is neither a necessary party nor a proper party to the proceedings in O.S.No.670 of 2008 on the file of the trial Court. 5. Per contra, the Learned Counsel for the First Respondent/Plaintiff submits that in the Written Statement filed by the Revision Petitioner/First Respondent (Defendant), it is stated that he has discharged the mortgage over the property from M/s. DHFL Vysya Housing Finance Limited (Second Respondent/Second Defendant) and again, he has mortgaged the property with LIC Housing Finance Limited and again, discharged the same and now, he has mortgaged the property with M/s. State Bank of India, Veerakeralam Branch, Coimbatore (proposed party) for the loan availed from it. 6. A plea has also taken on behalf of the First Respondent/Plaintiff that the Revision Petitioner/First Respondent/First Defendant has no right to mortgage the suit property, when the suit is pending. 7. 6. A plea has also taken on behalf of the First Respondent/Plaintiff that the Revision Petitioner/First Respondent/First Defendant has no right to mortgage the suit property, when the suit is pending. 7. The pith and substance of the stand taken by the First Respondent/Petitioner/Plaintiff is that the proposed party viz., M/s. State Bank of India, Veerakeralam Branch, Coimbatore, is a necessary party to the main suit proceedings in O.S.No.670 of 2008 on the file of the trial Court for the purpose of ascertaining the dues to them and for discharge of mortgage besides for proper adjudication of the controversies involved in the suit. 8. Lastly, it is the strenuous contention of the Learned Counsel for the First Respondent/Petitioner/Plaintiff that if the proposed party viz., M/s. State Bank of India, Veerakeralam Branch, Coimbatore, is not arrayed as Third Defendant to the main suit proceedings, irreparable loss and hardship will be caused. 9. It is not in dispute that the First Respondent/Petitioner/Plaintiff has filed a suit for Specific Performance of Sale Agreement dated 29.01.2007 against the Revision Petitioner/First Defendant, praying for an issuance of an order by the trial Court, to receive the balance sale consideration of Rs.10,00,000/-discharged the loan with the Second Defendant, M/s. DHFL Vysya Housing Finance Limited herein and executed and registered the Sale Deed in his favour, etc., It comes to be known that the Revision Petitioner/First Respondent/First Defendant has filed a detailed Written Statement to the Plaint in O.S.No.670 of 2008 filed by the First Respondent/Plaintiff among other things taking a plea that the present suit filed by the First Respondent/Plaintiff is highly fictitious, speculative, etc., Moreover, the Revision Petitioner/First Respondent/First Defendant has taken a categorical plea in Para 27 of his Written Statement that the First Respondent/Plaintiff has no locus standi to file the suit at all since the documents relied upon him are fictitious, manipulated and forged one. At this juncture, this Court pertinently points out that since the disputes between the parties touching upon the suit controversies are pending, in the interest of Justice, this Court is not expressing any merit of the matter and it is open to the parties concerned to reserve their disputes/controversies in the manner known to law and in accordance with law. 10. It is to be borne in mind that no party/litigant can be either substituted or arrayed as a party to the proceedings without his/its concerned. 10. It is to be borne in mind that no party/litigant can be either substituted or arrayed as a party to the proceedings without his/its concerned. A party can be added to the pending suit proceedings, if the party's presence is very much necessary for an effective, efficacious and necessary adjudication of the disputes/controversies involved in the suit. Also, without the presence of the proposed party, a Court of Law will not be in a position to decide the issues in a complete and comprehensive manner. If the proposed party is to be a proper and necessary one, a Court of Law/the trial Court can exercise its judicial discretion in allowing the impleading application sought for by the concerning party, as no prejudice, will be caused to any one by impleading such a party. By ordering the proposed party/ M/s. State Bank of India, Veerakeralam Branch, Coimbatore, as one of the parties to the main litigation in the suit, all the factual aspects of the matter in issue will be brought before the Court for arriving at the truth in coming to the decision on point in issue. Ultimately, it is for the trial Court to take a final call in the matter in issue. 11. A necessary party is one whose presence is very much necessary. A proper party is one whose presence is necessary to effectively and completely decide upon the disputes that has arisen in a given case. In fact, the proper parties are added to avoid plurality of suit and to protect their interest. To bring an individual as a party/defendant is not a substantive right. It is one of procedure. A Court of Law is to properly exercise its discretion in this regard. 12. A person, who is to be affected by means of final decision in a given case, ought to be impleaded as Respondent. In a civil suit, the Plaintiff is a dominus litus. The concept of 'dominus litus' should not be stretched too far. A Court of Law has a fundamental duty to see that a necessary/proper party is impleaded. Indeed, notwithstanding the ingredients of Or. 1 R. 10 of the Code of Civil Procedure, a Court of Law has an inherent power to order substitutions of parties also. 13. A person having direct interest in the subject matter of litigation can be impleaded as a party. Indeed, notwithstanding the ingredients of Or. 1 R. 10 of the Code of Civil Procedure, a Court of Law has an inherent power to order substitutions of parties also. 13. A person having direct interest in the subject matter of litigation can be impleaded as a party. A person may be a proper party even though no relief is claimed against him. A bona fide purchaser of the mortgaged property is a proper party, in the considered opinion of this Court. 14. As far as the present case is concerned, the trial Court has allowed the impleading petition in I.A.No.150 of 2010 by stating 'Heard both sides represented this petition may be allowed' and resultantly, allowed the petition. In this connection, this Court pertinently points out that even though both sides have represented before the trial Court that I.A.No.150 of 2010 (impleading petition) may be allowed, yet, it is the primordial duty of the trial Court to allow the I.A.No.150 of 2010 by assigning at least an outline of the process of reasoning in its order. In the instant case on hand, the said order is one of brevity and cryptic one. The Revision Petitioner/First Respondent/First Defendant has filed a detailed counter to the I.A.No.150 of 2010 (impleading Petition for proposed party) then, at least, the trial Court, while allowing the I.A.No.150 of 2010, should have passed reasoned order with some qualitative and quantitative details. However, on going through the order in I.A.No.150 of 2010, dated 26.10.2010, passed by the trial Court, this Court is of the considered view that the same is a cryptic one besides the same being a non-speaking one. An order may be just from the point of view of the person in whose favour the order is passed by the Court of Law. Insofar as the aggrieved person is concerned, the non-speaking order viz., one passed in I.A.No.150 of 2010, dated 26.10.2010, is an unjust one. 15. Be that as it may, on a careful consideration of respective contentions and in view of the fact and taking note of the fact that the trial Court in I.A.No.150 of 2010 in O.S.No.670 of 2008, dated 26.10.2010, has passed a cryptic order of allowing the impleading petition, this Court comes to an irresistible conclusion that the same is not a valid and just one and in the eye of Law. As such, this Court interferes with the said order in I.A.No.150 of 2010 in O.S.No.670 of 2008, dated 26.10.2010, passed by the Learned Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore, to prevent an aberration of Justice. Consequently, the Civil Revision Petition succeeds. In the result, this Civil Revision Petition is allowed, leaving the parties to bear their own costs. Consequently, the order passed by the Learned Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore in I.A.No.150 of 2010 in O.S.No.670 of 2008, dated 26.10.2010, is set aside by this Court for the reasons assigned in this revision. The trial Court is directed to take I.A.No.150 of 2010 on its file and to dispose of the said application on merits, after hearing the Learned Counsel appearing for the parties and also, to pass a reasoned and outline of the process of reasoning in its order, after taking into account the pleading projected by the parties to the I.A.No.150 of 2010 in the manner known to law and in accordance with law. In any event, the trial Court is directed to dispose of the I.A.No.150 of 2010, within a period of two weeks from the date of receipt of a copy of this order. Consequently, the connected M.P.No.1 of 2011 is closed.