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2025 DIGILAW 1283 (KER)

Sivanand v. Biji, W/o. Sidharthan

2025-05-20

K.NATARAJAN

body2025
JUDGMENT : (K. NATARAJAN, J.) This petition is filed by the petitioner/third party applicant by challenging the impugned order passed by the Additional Munsiff Court, Cherthala in IA No.02/2023 in O.S.No.644/2009 dated 08.11.2024. 2. Notice issued to all the respondents were served. However, only the learned counsel for the 4 th respondent is represented, in this petition. 3. The case of the petitioner before the trial court is that the petitioner filed IA to implead the petitioner as additional defendant in the suit, filed by the respondents 1 to 3 as against respondents 4 to 6 in OS No.644/2009 for seeking permanent prohibitory injunction against respondents 4 to 6 in respect of plaint schedule item 1 of the property. When the matters pending for adjudication, the concerned petitioner filed IA to implead himself as additional defendant in the suit, in the said case which came to be dismissed by the trial court, hence the petitioner is approached this Court. 4. The learned counsel for the petitioner strenuously contended that he purchased the property from the 1 st defendant, i.e., 4 th respondent on 24.04.2010, therefore, he has a right over the property. Hence, he is a necessary party to be impleaded in the suit, to be heard and dispose of the suit by the trial Court. But, the trial court without considering the matter properly and without appreciating the documents on record, wrongly rejected the application. Hence, prayed for setting aside Ext.P7 order of the trial court and to implead himself as additional defendant in the said suit. 5. Per contra, the learned counsel appearing for the 4 th respondent, who is the 1 st defendant in the trial court, objected the petition contending that the claim of the petitioner was through the 1 st defendant who, said to be purchased the property in April 2010, which is nothing to do with the plaint schedule property, it is altogether different properties. Therefore, he is not a necessary party in the said Suit. Hence, the trial court rightly dismissed the IA filed by the petitioner. Therefore, do not require any interference. 6. In reply, the learned counsel for the petitioner submits that the 1 st defendant /4 th respondent was not filed any objection in the main application filed by thr petitioner, whereas, the Respondent Nos.1 to 3/plaintiffs have filed the objection to the application. 7. Therefore, do not require any interference. 6. In reply, the learned counsel for the petitioner submits that the 1 st defendant /4 th respondent was not filed any objection in the main application filed by thr petitioner, whereas, the Respondent Nos.1 to 3/plaintiffs have filed the objection to the application. 7. Having heard the arguments and perused the records. The points that are under consideration are:- i. Whether the petitioner is necessary and proper party to the Suit, pending between Respondents 1 to 3 and Respondents 4 to 6 and whether the order of the trial court is called for any interference? 8. On perusal of the records, it is seen that Respondents 1 to 3 in this Court have filed Suit against the respondents 4 to 6 who are defendant Nos.1 to 3, seeking perpetual injunction in OS No.644 of 2009 in respect of plain schedule item No.1. Though, the 1 st defendant has taken a contention that the properties not in existence and the matter is on the trial even the evidence of the parties are almost complete. It is submitted by the counsel for the petitioners that when the commissioner came to the spot for inspection and measuring the properties, the commissioner also to measure the property of the petitioner, thereby, he came to know that there is a dispute. Hence, he filed an application before the Court for impleading himelf as a party. Whereas, the very first defendant who was the vendor of the petitioner, objected the petition, contended that property sold to the present petitioner/3 rd party applicant, is altogether different properties from the plain schedule item number No.1 which was claimed by the plaintiffs for seeking injunction. In view of the submission made by the counsel for the 1 st defendant/respondent No.4, the property sold to the present petitioner/third party applicant is altogether different from the properties which was claimed by the plaintiffs in the Suit. That apart, the Suit is between the plaintiffs and defendants in respect of perpetual injunction, the suit against the person which is judgment in personam but not, judgment in Rem. The injunction always granted against the person which is applicable to the person to the Suit. That apart, the Suit is between the plaintiffs and defendants in respect of perpetual injunction, the suit against the person which is judgment in personam but not, judgment in Rem. The injunction always granted against the person which is applicable to the person to the Suit. If at all the petitioner claims any right over the property, it is said to be purchased property after filing the suit, it would amounts to lis-pendens purchase attracts Section 52 of the Transfer of Property Act,1882 and if the defendants have right, the subsequent purchase also get right over the property. When the suit is between the plaintiffs and defendants 1 to 3 in respect of the injunction suit, the third party applicant cannot be impleaded as additional defendants even though he is having any right over the property which alleged to have been purchased from the 1 st defendant during the pendency of the Suit. That apart, as per the assertion of the counsel for the respondent No.4 that the property sold to the petitioner, i.e., the third party applicant is all together different from the plaint schedule property. Such being the case, there is no need for the trial court to implead the third party applicant in the said suit between the plaintiffs and defendants 1 to 3 and if at all is there any right, he can agitate the same by filing a separate Suit against the parties. 9. Therefore, considering the same, I am of the view that the petitioner is not a necessary and proper party to implead himself as an additional defendant in the Suit. The trial court by considering the facts of the case and stated that the properties in item No.1 is altogether different property of the 1 st defendant and if any claim made by the third party applicant is not come under the purview of item No.1 of the schedule property. 10. Considering the facts and circumstances of the case, I do not find any error or illegality committed by the trial Court in dismissing the application, IA No.02/2023 in O.S.No.644/2009. Therefore, the petition is devoid of merit. Accordingly, this petition is dismissed.