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2014 DIGILAW 2503 (MAD)

Ponnusamy Mudaliar v. Murugan

2014-08-08

R.SUBBIAH

body2014
Judgment 1. The present appeal has been filed challenging the Judgment and decree, dated 31.03.2011, made in A.S.No.73 of 2008, whereby the learned Additional District Judge (Fast Tract Court No.3), Kallakurichi, has set aside the judgment and decree passed by the learned II Additional District Munsif at Kallakurichi in O.S.No.258 of 2003, dated 08.02.2006, and remanded the matter back to the Trial Court, to enable the plaintiff to implead the necessary parties in the suit, and directed the Trial Court to dispose of the suit afresh. 2. The appellants herein are the defendants 1, 2 & 4 respectively before the Trial Court. The 2nd respondent herein is the 3rd defendant and the 1st respondent herein is the plaintiff before the Trial Court. For the sake of convenience, the parties are referred to as per ranking in the suit. 3. The circumstances, which led the defendants 1, 2 & 4 to file the present appeal, are as follows:- 3(1) The father of the plaintiff viz., Chinnasamy Mudaliar and the father of the defendants 1 & 3 viz., Ponnusamy Mudaliar and Ambayiram Mudaliar are the brothers and they are the sons of one Lakshmana Mudaliar ie., the grand father of the plaintiff. The 2nd defendant is the son of the 1st defendant and the 4th defendant is the son of the 3rd defendant. 3(2) The plaintiff has filed the suit for partition as against the defendants claiming 1/3 share in the suit property. It is the case of the plaintiff that he and the defendants are belonging to a Hindu joint family. The plaintiff's grand-father Lakshmana Mudaliar was in possession and enjoyment of the suit property. The plaintiff's father Chinnasamy Mudaliar left the home 15 years ago and his whereabouts is not known. While so, the plaintiff's grand-father Lakshmana Mudaliar died ten years ago. After the demise of the plaintiff's grand-father Lakshmana Mudaliar, the plaintiff is entitled to 1/3rd share in the suit property. But, despite several demands made by the plaintiff, the defendants have refused to give 1/3rd share in the suit property to the plaintiff. Hence, the plaintiff issued a legal notice, through his lawyer, to the defendants on 17.12.2002, for which they sent a reply dated 20.02.2003 with false averments. Hence, left with no other option, the plaintiff has filed the suit before the learned II Additional District Munsif, Kallakurichi, claiming 1/3rd share in the suit property. Hence, the plaintiff issued a legal notice, through his lawyer, to the defendants on 17.12.2002, for which they sent a reply dated 20.02.2003 with false averments. Hence, left with no other option, the plaintiff has filed the suit before the learned II Additional District Munsif, Kallakurichi, claiming 1/3rd share in the suit property. 3(3) The suit was resisted by the defendants by filing written statement. It is the specif defence of the defendants that the suit is barred by res-judicata, since the father of the plaintiff viz., Chinnasamy Mudaliar had already filed a suit in O.S.No.661 of 1983 seeking 1/3rd share in the suit property and the said suit was dismissed on 22.01.1996. That apart, the suit is bad for nonjoinder of necessary parties, because the plaintiff has not impleaded his mother and sisters as parties to the suit. It is further defence of the defendants that the said Lakshmana Mudaliar had already executed a gift deed in favour of the defendants 2 & 4 on 05.09.1980, which was accepted and acted upon. Thus, they sought for dismissal of the suit filed by the plaintiff. 3(4) Before the Trial Court, on the side of the plaintiff, the plaintiff examined himself as P.W.1, besides examining one Rangasamy as P.W.1, and marked two documents as Ex.A.1 & Ex.A.2. On the side of the defendants, 4th defendant examined himself as D.W.1, besides examining two other witnesses as D.W.2 & D.W.3 and marked five documents as Ex.B.1 to Ex.B.5. 3(5) After analysing the evidence both oral and documentary adduced on either side, the Tribunal has come to the conclusion that the plaintiff is entitled for partition of the suit property, however, dismissed the suit for non-joinder of necessary parties, since the plaintiff has not impleaded his mother and sisters as parties to the suit. Aggrieved over the same, the plaintiff has filed an appeal in A.S.No.73 of 2008 before the first appellate Court. But, the first appellate Court has set aside the judgment and decree passed by the Trial Court and remanded the matter back to the Trial Court, by giving liberty to the plaintiff to file appropriate application to implead necessary parties, and directed the Trial Court to dispose of the suit afresh. Aggrieved over the same, the present appeal has been filed by the 1st, 2nd & 4th defendants. 4. Aggrieved over the same, the present appeal has been filed by the 1st, 2nd & 4th defendants. 4. The learned counsel for the appellants herein/defendants 1, 2 & 4 submitted that the plaintiff has deliberately suppressed the existence of other legal heirs in the plaint. In fact, the defendants had taken a specific plea in the written statement that the suit is bad for non-joinder of necessary parties viz., the plaintiff's mother and sisters. In spite of the same, the plaintiff had not chosen to take steps to implead the legal heirs before the trial Court. Even in the first appeal, he has not taken any specific ground with regard to non-impleading of the necessary parties in the suit. In the absence of such application by the plaintiff to implead the necessary parties, the first appellate Court ought not to have set aside the judgment and decree passed by the Trial Court and remanded the matter to the trial Court to enable the plaintiff to implead the necessary parties. The order of remand passed by the first appellate Court will only help the plaintiff to fill up the lacuna, which was intentionally caused by him. In this regard, the learned counsel for the appellants therein/defendants 1, 2 & 4 has also relied on the decision of the Hon'ble Apex Court reported in AIR 1965 SC 271 [Kanakarathanammal Vs. V.S. Loganatha Mudaliar and another]. 5. It is further submission of the learned counsel for the appellants/defendants 1, 2 & 4 that as early as in the year 1980, the father of the plaintiff viz., Chinnasamy Mudaliar had filed a suit in O.S.No.661 of 1983 seeking for partition as against the defendants herein and the said suit was dismissed. But, the first appellate Court has failed to take note of the fact that the dismissal of the suit in O.S.No.661 of 1983 filed by the father of the plaintiff herein will operate as a bar to institute the present suit. The first appellate Court ought to have dismissed the appeal. But, instead of doing so, the first appellant Court has remanded the matter to the Trial Court, by setting aside the judgment and decree passed by the Trial Court. The first appellate Court ought to have dismissed the appeal. But, instead of doing so, the first appellant Court has remanded the matter to the Trial Court, by setting aside the judgment and decree passed by the Trial Court. Further, if the Trial Court allows the application of the plaintiff to implead the necessary parties in the suit, it will take away the right of the defendants to proceed with the appeal and question the correctness of the order passed by the first appellate Court. In support this contention, the learned counsel for the appellants herein/defendants 1, 2 & 4 relied on the decision of the Hon'ble Apex Court reported in AIR 2009 Supreme Court 520 [ Union of and and ors Vs. Ram Kumar Thakur]. Thus, according to the learned counsel for the appellants herein/defendants 1, 2 & 4, the impugned order passed by the first appellate Court is liable to be set aside. 6. Per contra, the learned counsel for the plaintiff/1st respondent herein submitted that it is incorrect to state that the plaintiff has deliberately suppressed the existence of his mother and sisters. In fact, the plaintiff's sister got married before the year 1989 and only if the marriage of the female legal heir is after 1989, they will get share in the suit property as per the Hindu Succession (Tamil Nadu Ammendment, Act (Act 1/1990), which came into force with effect from 25.03.1989., that is why, the plaintiff has not impleaded them as party to the suit. Further more, during the course of argument before the first appellate Court, the plaintiff made a submission that he is prepared to implead his sisters as a party to the suit and prayed for remanding the matter to the Trial Court. Hence, the first appellate Court has remanded the matter to the trial Court to enable the plaintiff to implead his sisters and mother as party to the suit, by filing appropriate application. Further, under Order 1 Rule 9 of CPC, no suit shall be defeated for mis-joinder or non-joinder of parties. In fact, after remand, the plaintiff has filed an appropriate application before the Trial Court to implead the necessary parties and the said application was allowed by the Trial Court and necessary parties were also impleaded as parties to the suit. Hence, according to the plaintiff/1st respondent, nothing survives in the present appeal. In fact, after remand, the plaintiff has filed an appropriate application before the Trial Court to implead the necessary parties and the said application was allowed by the Trial Court and necessary parties were also impleaded as parties to the suit. Hence, according to the plaintiff/1st respondent, nothing survives in the present appeal. It is further submitted by the learned counsel for the plaintiff/1st respondent herein that it is incorrect to state that the suit filed by the plaintiff is hit by res-judicata, since the earlier suit filed by his father in O.S.No.661 of 1983 was dismissed only for default and the same was not decided on merits. Thus, he prayed for dismissal of the present appeal. 7. By way of reply, the learned counsel for the appellants herein/defendants 1, 2 & 4, reiterated that in the absence of any application by the plaintiff to implead the necessary parties in the suit, the lower appellate Court ought not to have remanded the matter back to the Trial Court, by setting aside the judgment and decree of the trail Court. 8. Heard the submissions made on either side and perused the materials available on record. 9. It is the main submission of the learned counsel for the appellants herein/defendants 1, 2 & 4 that despite the specific defence taken by them in the written statement with regard to non-joinder of necessary parties in the suit, the plaintiff has not chosen to implead them as parties in the suit. Hence, the suit was rightly dismissed by the Trial Court. Even in the appeal filed before the first appellate Court, the plaintiff has not taken out any application to implead his sisters and mother as parties in the suit. In the absence of any such application, the first appellate Court ought not to have set aside the judgment and decree passed by the Trial Court and remanded the matter to the Trial Court, to enable the plaintiff to implead his sisters and mother as parties in the suit. The order of the first appellate Court will only help the plaintiff to fill up the lacuna, which was intentional caused by him. 10. The order of the first appellate Court will only help the plaintiff to fill up the lacuna, which was intentional caused by him. 10. But, it is the submission of the learned counsel for the plaintiff/1st respondent herein that since his sisters got married before the year 1989, they are not entitled for a share in the suit property as per the Hindu Succession (Tamil Nadu Amendment) Act (Act 1/1990), that is why, the plaintiff had not impleaded them as parties to the suit. The plaintiff has not deliberately suppressed the existence of his sisters and mother, as contended by the learned counsel for the appellants herein/defendants. 11. On a perusal of the materials available on record, I find that the Trial Court has come to the conclusion that the plaintiff is entitled for partition of the suit property, and after having come to such a conclusion, the suit was dismissed by the Trial Court only on the ground of non-joinder of necessary parties, as the plaintiff has not impleaded his sisters and mother as parties to the suit. Hence, in the appeal before the first appellate Court, the plaintiff has made a submission that he is ready to implead his sisters and mother as parties in the suit and prayed to remand the matter to the Trial Court, so as to enable him to implead them as parties to the suit and proceed with the matter afresh. Considering the submission made by the plaintiff, the first appellate Court has also passed the judgment by setting aside the judgment and decree of the Trial Court and remanded the matter to the Trial Court to enable the plaintiff to implead his sisters and mother as parties to the suit. 12. Now, it is the submission of the learned counsel for the appellants herein/defendants 1, 2 & 4 that in the absence of any such application to implead them, the first appellate Court ought not to have set aside the judgment and decree of the Trial Court, and remanded the matter to the Trial Court. In this regard, the learned counsel for the appellants has also relied upon the decision of the Hon'ble Apex Court reported in AIR 1965 SC 271 [Kanakarathanammal Vs. V.S. Loganatha Mudaliar and another].The relevant portion in the said decision reads as follows:- “14. In this regard, the learned counsel for the appellants has also relied upon the decision of the Hon'ble Apex Court reported in AIR 1965 SC 271 [Kanakarathanammal Vs. V.S. Loganatha Mudaliar and another].The relevant portion in the said decision reads as follows:- “14. We do not think there is any justification for allowing the appellant to amend her plaint by adding her brothers at this late stage. We have already noticed that the plea of non-joinder had been expressly taken by respondents 1 and 2 in the trial Court and a clear and specific issue had been framed in respect of this contention. While the siit was being tried, the appellant might have applied to the trial Court to add her brothers, but no such application was made. Even after the suit was dismissed by the Trial Court on this ground it does not appear that the appellant moved the High Court and prayed that she should be allowed to join her brothers even at the appellate stage, and so, the High Court had no occasion to consider the said point. The fact that the High Court came to the contrary conclusion on the question of title does not matter, because if the appellant wanted to cure the infirmity in her plaint, she should have presented an application in that behalf at the hearing of the appeal itself. In fact, no such application was made even to this Court until the appeal was allowed to stand over after it was heard. Under the circumstances, we do not think it would be possible for us to entertain the said application. In the result, the application for amendment is rejected.” In the said case, the plaintiff therein had filed application before the Hon'ble Supreme Court to implead her brothers in the suit, when the appeal was pending before the Hon'ble Supreme Court. But, the Hon'ble Supreme Court has rejected her prayer stating that the plaintiff therein might have applied before the Trial Court to add her brothers or she ought to have moved the High Court and prayed that she would be allowed to add her brothers as parties to the suit, at the appeal stage. 13. Whereas, in the instant case, at the first appeal stage itself, a request was made by the plaintiff to remand the matter to the Trial Court to enable him to implead necessary parties. 13. Whereas, in the instant case, at the first appeal stage itself, a request was made by the plaintiff to remand the matter to the Trial Court to enable him to implead necessary parties. Therefore, the above said judgment relied on by the learned counsel for the appellants herein/defendants 1, 2 & 4 cannot be made applicable to the present facts of the case. No doubt, normally the order of remand cannot be passed as a routine course. But, in the instant case, the newly added parties must have an opportunity to file their written statement and to adduce evidence to put forth their case. Considering the facts and circumstances of the case, I do not find any infirmity in the judgment and decree passed by the first appellate Court. Hence, I am not inclined to interfere with the impugned order passed by the first appellate Court. The present appeal is liable to be dismissed. For the foregoing reasons, the Civil Miscellaneous Appeal is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.