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2017 DIGILAW 1353 (KER)

Joseph v. State of Kerala

2017-10-27

ANIL K.NARENDRAN

body2017
JUDGMENT : Anil K. Narendran, J. 1. The petitioner, who is the plaintiff in O.S. No. 127/2012 on the file of the Sub Court, Thodupuzha filed I.A. No. 140/2017, an interlocutory application under Order I, Rule 10 of the Code of Civil Procedure, 1908 seeking an order to implead the Excise Commissioner, Thrissur and the Special Tahsildar (Revenue Recovery), Thrissur as the additional 8th and 9th defendants in that suit. The said interlocutory application ended in dismissal by Ext. P3 order dated 07.04.2017, which is under challenge in this Original Petition filed under Article 227 of the Constitution of India. Heard the learned counsel for the petitioner/plaintiff, learned Senior Government Pleader for respondent 1 to 3/defendants 1 to 3 and also the learned counsel for the 7th respondent/additional 7th defendant. The 5th respondent/5th defendant was deleted from party vide order dated 14.09.2017, at the risk of the petitioner/plaintiff. 2. The sole issue that arises for consideration in this Original Petition is as to the legality or otherwise of Ext. P3 order dated 07.04.2017 of the court below in I.A. No. 140/2017. 3. O.S. No. 127/2012 is one filed by the plaintiff seeking a declaration of his ownership and title over the plaint schedule property and that, the said property is not liable to be attached or brought for auction for recovery of the Abkari dues of the 6th defendant. The plaintiff has also sought for an injunction restraining defendants 1 to 3 from attaching or proceeding against the plaint schedule property for recovering the said dues of the 6th defendant. 4. During the pendency of that suit, the plaintiff filed I.A. No. 140/2017, under Order I Rule 10 of the Code, seeking an order to implead the Excise Commissioner, Thrissur and the Special Tahsildar (RR), Thrissur as additional 8th and 9th defendants. The said application was dismissed by Ext. P3 order on the ground that the proposed additional defendants are not at all necessary parties and that, the plaintiff has filed I.A. No. 140/2017 only to drag the proceedings. The reasoning of the court below, as contained in paragraph 9 of Ext. P3 order reads thus; "9. As already discussed the legality of the revenue recovery proceedings need not be made a fact in issue in this suit. The reasoning of the court below, as contained in paragraph 9 of Ext. P3 order reads thus; "9. As already discussed the legality of the revenue recovery proceedings need not be made a fact in issue in this suit. In order to decide the issues, whether the plaint schedule property was in the ownership and possession of the 6th defendant, when the Abkari dues arose and whether the 5th and 6th defendants are one and the same person, the proposed additional defendants are not at all necessary parties. The State of Kerala is already a party to the suit. The 2nd and 3rd defendants are the Special Tahsildar (RR) Thodupuzha and the Village Officer Karikkodu Village. As pointed out by the learned counsel for the 7th defendant if it is essential, any of the parties can examine the proposed additional defendants as witnesses to prove any matter touching with the abkari auction. On a consideration of the above said facts, I am of the view that this petition is filed only to drag on the proceedings and it is liable to be dismissed. The points are found against the petitioner." 5. Order I, Rule 10(2) of the Code provides that, the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 6. Therefore, Order I, Rule 10(2) of the Code enables the Court to add a 'necessary party' or 'proper party' so as to effectually and completely adjudicate upon and settle all the questions involved in the suit. Under the said provision, the Court is given the discretion to add as a party, any person who is found to be a 'necessary party' or a 'proper party'. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed by the Court. Under the said provision, the Court is given the discretion to add as a party, any person who is found to be a 'necessary party' or a 'proper party'. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed by the Court. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed. On the other hand, a 'proper party' is a person (though not a necessary party) 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 party' or a 'necessary party', the Court has no jurisdiction to implead such person, invoking its powers under Order I, Rule 10(2) of the Code. Therefore, even in a case where the relief sought for in an application filed under Order I, Rule 10(2) of the Code is not opposed, the discretion of the Court can be exercised only if such person is found to be a 'proper party' or a 'necessary party' to the suit. 7. In the instant case, after considering the rival contentions, the court below in Ext. P3 order found that, the proposed additional defendants are not at all necessary parties and that, the plaintiff has filed I.A. No. 140/2017 only to drag the proceedings. In the said order, the court below has also observed that, if it is essential, any of the parties can examine the proposed additional defendants as witness to prove any matter touching the abkari auction. 8. In Shalini Shyam Shetty v. Rajendra Shankar Patil (2010 (3) KLT SN 86 (C. No. 90) SC : (2010) 8 SCC 329 ) the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 9. In Sobhana Nair K.N. v. Shaji S.G. Nair ( 2016 (1) KLT 994 : 2016 (1) KHC 1 ) a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 10. Viewed in the light of the law laid down in the decisions referred to supra, the reasoning of the court below in Ext. P3 order cannot be termed as either perverse or patently illegal, warranting an interference of this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. In the result, this Original Petition fails and the same is accordingly dismissed. However, considering the fact that the suit is of the year 2012, I deem it appropriate to direct the court below to finally dispose of O.S. No. 127/2012 as expeditiously as possible, at any rate, within a period of five months on production of a certified copy of this judgment.