Kaja Mohideen v. Minor Kasinathan, Rep. by Guardian Raja
2018-08-02
ANITA SUMANTH
body2018
DigiLaw.ai
ORDER : The revision petitioner challenges an order passed in I.A.No.476 of 2008 in O.S.No.6 of 2004 dated 08.07.2009 on the file of the District Munsif-cum-Judicial Magistrate, Keeranur. 2. The relevant sequence of dates and events are as follows : (i) The revision petitioner is admittedly a mortgagee in possession of the suit property situated at Illuppur, Pudukkottai District. The respondent filed O.S.No.6 of 2004 before the District Munsif at Keeranur, seeking the relief of recovery of possession of the suit property as well as arrears of rent from the petitioner in October, 2003. (ii) Separately, O.S.No.266 of 2003 had been filed by one Savithriammal arraying the respondent herein as defendant in that suit and seeking specific performance in respect of the same property as in O.S.No.6 of 2004. On the basis of a decree passed in O.S.No.266 of 2003, a sale deed was executed by the Sub-Court, Pudukkottai in favour of Savithiriammal in respect of the same suit property on 09.11.2005. (iii) I.A.No.476 of 2008 came to be filed thereafter in O.S.No.6 of 2004 by the present petitioner praying for impleadment of said Savithiriammal as a necessary party in the suit. On 08.07.2009, the application seeking impleadment was rejected. The present CRP has been filed challenging the aforesaid order of the learned District Munsif Cum Judicial Magistrate, Keeranur dated 08.07.2009. (iv) In the meantime, an ex-parte decree came to be passed in O.S.No.266 of 2003 that was set aside and the suit restored to file. On 19.04.2017, O.S.No.266 of 2003 was dismissed for default. (v) Within thirty days, on 21.04.2017, I.A.No.669 of 2017 was filed in O.S.No.266 of 2003 praying for restoration of the suit. The said application is stated to have been listed on 07.08.2017 and hearing is stated to be in progress. 3. Mr. Vijayakumar, learned counsel appearing for the petitioner submits that Savithiriammal is a necessary party in the suit insofar as she has paid the entire sale consideration in respect of the suit property and has also discharged the mortgage that had been created over the property in favour of the revision petitioner. A copy of the sale deed dated 09.11.2005 has been placed on record in confirmation of the aforesaid facts.
A copy of the sale deed dated 09.11.2005 has been placed on record in confirmation of the aforesaid facts. Thus, the specific contention of the learned counsel is to the effect that since O.S.No.266 of 2003 is a suit for specific performance if the same is decreed, the title of the respondent in the revision petition, who is a defendant in O.S.No.266 of 2003, would be adversely impacted, consequentially, impacting the present suit as well. 4. Mr. B. Jameel Arasu, learned counsel appearing for the respondent vehemently objects to the impleadment supporting the impugned order. 5. Having heard both the learned counsel, I am of the view that the impugned order has necessarily to be set aside and the impleadment of Savithriammal ordered. The trial Judge, in considering whether Savithiriammal is a necessary party to the suit, relies on the decision of the Supreme Court in the case of Sunil Gupta v. Kiran Girhotra and others [2008 (1) CTC 343] and the decision of this Court in the case of M. Sathishkumar v. M. Ramasamy and five others [ 2008 (2) CTC 734 ], both to the effect that the plaintiff in suit is d o mi n u s litu s and cannot be compelled to implead a party. In such circumstances, the Court will not exercise discretionary jurisdiction to implead the person as a party. 6. In the present case, the learned trial Judge considers the submissions of the respondent to the effect that the suit filed by Savithiriammal was a collusive one and hence, there was no necessity for her impleadment. 7. In coming to the aforesaid conclusion, the learned Judge also notices that the prayer in the suit related to the relief of possession and payment of arrears of rent. Since the prayer in the suit was only towards arrears of rent for a period prior to the date of sale in favour of Savithiriammal, he concludes that such a prayer can be decided even in the absence of Savithiriammal. The same would, according to him, be the case as regards possession as well as the question of possession could be decided even in the absence of Savithiriammal, since her possession would either be through the respondent or through Court. 8. The question of impleadment of a party in a proceeding is essentially one of exercise of discretion by the court.
8. The question of impleadment of a party in a proceeding is essentially one of exercise of discretion by the court. No doubt, as rightly contented by the learned counsel for the respondent, who was the plaintiff in the suit, being dominus litus, his view on whether a party is necessary or not, should carry substantial weight with the Court. It is however not the only consideration and the Court will, in deciding a prayer for impleadment, take into all circumstances such that a proper and complete resolution of the issue can be arrived at by the Court. 9. In the present case, the argument put forth by the respondent before the learned Judge was to the effect that O.S.No.266 of 2003 filed by Savithiriammal was itself a collusive suit. This has to be established in the course of trial. That apart, the prayers in O.S.No.6 of 2004 are two fold, for recovery of rent as well as possession of suit property. Since the question of possession is involved and possession, in this case, has been granted to Savithiriammal vide sale deed dated 09.11.2005 executed by the Sub Court, Pudukkottai, I am of the view that her presence in participation is necessary in order for the Court to have a wholistic appreciation of the facts in question. 10. The decisions stated in the impugned order are, in my view, distinguishable. In Sunil Kupta (Supra) case, the Supreme Court was concerned with the proceedings under the Indian Succession Act for grant of probate. It is in this context that the Supreme Court dismissed the appeal declining to exercise discretionary jurisdiction in the question of impleadment of a party. In the case of M. Sathishkumar (supra), the Court was concerned with a suit for specific performance of a contract for sale. The Court observes that the scope of a suit for specific performance of a contract would be confined to the enforcement of the contract and whether the party in question was ready and willing to perform his part thereunder. There was no scope for enlargement of the suit prayer in such suit. In this light of the specific facts of that case it was concluded that there was not need to implead the third party. 11. The facts are different and distinguishable in the present case.
There was no scope for enlargement of the suit prayer in such suit. In this light of the specific facts of that case it was concluded that there was not need to implead the third party. 11. The facts are different and distinguishable in the present case. The suit in question, O.S.No.6 of 2004 seeks relief of recovery of property as well as arrears of rent. The same property as in the present suit has been dealt with by the Sub Court, Pudukkottai and decree passed in O.S.No.266 of 2003 in favour of Savithiriammal. 12. It is apparent thus that the facts are intertwined as regards both suits and it is in the interests of justice for Savtiriammal to be impleaded as I am of the view that she is both a necessary as well as proper party for the conduct of the suit proceedings. 13. The impugned order rejecting the prayer for impleadment of Savithiriammal is set aside and the CRP allowed. Savithiriammal will be impleaded as a necessary party in O.S.No.6 of 2004. The learned District Munsif-cum-Judicial Magistrate, Keeranur, is requested to take up the matter expeditiously and conclude the same within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.