Madras High Court
S.Murugan vs C.Rajammal
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 17.06.2019
DELIVERED ON 03.07.2019
CORAM:
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
C.R.P.(MD)No.320 of 2014
and
M.P(MD)No.1 of 2014
1.S.Murugan
2.S.Chandran
3.S.Vijayan ... Petitioners
vs.
1.C.Rajammal
2.C.Anbu
3.Thiruvaduthurai Atheena
Susindram Branch represented by its
Inspector, Suchindrum,
Suchindrum Village,
Agastheeswaram Taluk,
Kanyakumari District. ... Respondents
PRAYER: Petition filed under Article 227 of the Constitution of India,
against the fair and decretal order 24.10.2013 made in I.A.No.81 of
2013 in O.S.No.328 of 2012 on the file of the I Additional District Munsif
Court, Nagercoil.
For Petitioners : Mr.G.Aravinthan
For RR 1 & 2 : Mr.N.Dilipkumar
For R3 : No Appearance
******
http://www.judis.nic.in
2
ORDER
This Civil Revision Petition is filed by the unsuccessful Petitioners in I.A.No.81 of 2013 in O.S.No.328 of 2012.
2. I.A. No.81 of 2013 was filed by the Revision Petitioners herein, who are third parties in the suit in O.S.No.328 of 2012. In the said I.A, the Revision Petitioners prayed that they should be impleaded as defendants in O.S.No.328 of 2012.
3.According to the Revision Petitioners, they are the tenants in the third Respondent/Thiruvaduthurai Atheenam and have exclusive rights over the suit schedule property. In specific, the case of the Revision Petitioners is that they are tenants in old Survey No.1759, which is New Survey No.M3/121-2, at Nagercoil, Agasteeswaram Taluk, Kanyakumari District. They further state that the suit is filed by the first and second Respondents herein for a permanent injunction to restrain the Defendant in the suit, namely, the third Respondent herein from entering into the property described in the suit schedule (which is in Survey No. 1759) or putting up construction or in any other manner disturbing the possession of the second and third Respondents herein/Plaintiffs therein and also to demolish the 300 square foot concrete structure located to the west of the Plaintiffs' house in the suit schedule property. According to the Revision Petitioners, in view of the http://www.judis.nic.in 3 fact that they are the tenants of the third Respondent Atheenam and are in possession of property in the same survey number as that specified in the suit schedule, they are necessary or proper parties to the suit. Consequently, it is their contention that the interlocutory application filed by them under Order 1 Rule 10 CPC should not have been rejected and that there are material irregularities in the impugned order.
4. On the contrary, the case of the first and second Respondents is that the Plaintiffs are dominus litus and that, therefore, the Plaintiffs are entitled to decide as to who should be impleaded as parties in the suit. The said Respondents further contend that Survey No.1759, as per the suit schedule in O.S.No.377 of 2007, which is the earlier suit filed by the Revision Petitioners herein, ad measures an extent of 4 ½ cents and the description of the property in the suit schedule specifically mentions that a house with Door No. 10-1, two temporary rooms and one coconut tree are situated on the said 4 ½ cents plot.
5. By contrast, the said Respondents submit that the schedule of property as per the plaint in O.S.No.328 of 2012, which is the suit filed by the said Respondents, ad measures 3¼ cents and the description of the property is a building bearing Door Nos.10/3-2 and 10/3-3, which does not match either the extent or description of the property as per the http://www.judis.nic.in suit schedule property in O.S.No.337 of 2007. On this basis, the 4 said Respondents submit that the Revision Petitioners are neither necessary nor proper parties to the suit filed by the first and second Respondents and that, therefore, the Trial Court correctly rejected the application for impleadment filed by the third parties.
6. At the hearing, the learned counsel for the Revision Petitioners reiterated the statements made in the affidavit and grounds of the revision petition. In addition, in order to substantiate the submission that the Revision Petitioners are necessary or proper parties, the learned counsel referred to the judgment of this Court in S.Renuka Vs. K.Gangarathinam and others reported in 2014 (1) MWN (Civil) 374 and another judgment of this Court in Robust Hotels (P) Limited and others Vs. E.I.H. Limited and others reported in 2010 (6) CTC 192. In specific, the learned counsel relied upon paragraphs 7 to 10 of the judgment reported in 2014 (1) MWN (Civil) and submitted that, in paragraph 7, the Court relied upon the judgment in S. Krishnan v. Rathinavel Naicker (2007) 2 CTC 73, where the court enumerated the factors and circumstances that should be borne in mind while deciding on an impleading application. These factors and circumstances are: (a) without the presence of that party, effective and complete adjudication cannot be made; (b) the presence of that party is required for a complete and effective adjudication of the dispute although no relief is claimed against such party; (c) there is a cause of action http://www.judis.nic.in 5 against the party; (d) the relief claimed is likely to be made binding on the party; (e) the ultimate outcome of the proceedings is likely to affect the said party adversely; and (f) the role of that party is that of a necessary witness but is camouflaged as a necessary party.
7. According to the learned counsel, as the tenant in the same survey number, the Revision Petitioners clearly come within more than one of the categories enumerated in the above-mentioned judgment.
8. Secondly, the learned counsel submitted that there are material irregularities in the impugned order and that the said order is, therefore, liable to be set aside by this Court.
9. In reply, the learned counsel for the first and second Respondents reiterated that the Plaintiffs are dominus litus. More over, the learned counsel submitted that the suit filed by the said Respondents, namely, O.S.No.328 of 2012, is a proceeding in personam against the third Respondent, Atheenam, for a permanent injunction restraining the Defendant therein from interfering with or disturbing the Plaintiffs' peaceful possession and enjoyment of the suit schedule property. The learned counsel, thereafter, pointed out as to how the schedule of property in the plaint in O.S.No.320 of 2014 does not match the schedule of property in the plaint in O.S.No.337 of 2007. http://www.judis.nic.in 6 On the above basis, it was submitted that the Revision Petitioners are neither necessary nor proper parties.
10.The pleadings, impugned order and oral submissions were carefully considered. The limited issue that is required to be decided is whether the Revision Petitioners are necessary or proper parties in O.S.No.328 of 2012. In order to answer this question, it is necessary to examine as to who is a necessary party and who is a proper party. It is the settled legal position that a necessary party is one in whose absence, the judgment and decree, in the suit in question, cannot be pronounced and a proper party is one whose presence is necessary for the effective adjudication of all issues that arise in the suit.
11.On perusal of the plaint in O.S.No.337 of 2007, which is filed by the Revision Petitioners against the 2nd respondent herein and the third Respondent, Atheenam, it is evident that the suit schedule property in Old Survey No.1759 is described as ad measuring 4 ¼ cents. Further, the particulars of property describes the property as a house bearing Door No 10-1, two temporary rooms and one coconut tree. If the suit schedule property in O.S.No.328 of 2012 is examined, it shows that the suit schedule property is situated in old Survey No. 1759. However, the extent is shown as 3 ¼ cents and the door numbers are shown as Door No.10/3-2, 10/3-3. Therefore, it is true that http://www.judis.nic.in the extent and the door numbers of the buildings do not prima 7 facie tally. However, at this juncture and in this proceeding, no definitive conclusions can or should be drawn as to whether the two properties overlap and, if so, to what extent. Moreover, on perusal of the affidavit in support of the impleading application and the plaint in O.S. No.337 of 2007, it appears that the case of the Revision Petitioners is that the first and second Respondents herein were sub- tenants in one room in the suit schedule property therein and have encroached upon the properties of the Revision Petitioners. On examining the relief requested by the first and second Respondents herein, who are the Plaintiffs in O.S.No.328 of 2012, it appears that the suit is for a permanent injunction restraining the sole Defendant, namely, the third Respondent Atheenam from interfering with or disturbing the Plaintiffs' peaceful possession and enjoyment over the plaint schedule property and also to restrain the Defendant from assigning the ground of the plaint schedule property to any strangers for ground rent without following the procedure prescribed by law.
12.The Trial Court, in the impugned order, examined the plaint in O.S.No.328 of 2012 and concluded that there are no allegations against the parties who filed the petition for impleading themselves. Moreover, the Trial Court recorded that the relief prayed for in the suit is for a permanent injunction only against the Defendant therein and that the decree in the suit would not bind or affect the proposed parties. http://www.judis.nic.in 8
13. On the basis of the above mentioned factual findings, the Trial Court adverted to Order I, Rule 3 CPC and not Order I, Rule 10 thereof and examined the following legal questions, namely, whether there is a right to some relief against the proposed parties in the proceedings in question and whether it would be possible to pass an effective decree in the absence of the proposed parties. After setting out the said legal questions, the Trial Court answered the said questions by concluding that the Plaintiffs do not have any right to claim relief against the proposed parties in respect of the subject matter of the suit and that an effective decree can be passed in the suit without adding the proposed parties. In addition, the Trial Court also concluded that the proposed parties have not adduced any documentary evidence to prove that they are entitled to be added as parties to the suit.
14.The test that was applied by the Trial Court to decide whether the Revision Petitioners should be added as parties to the suit is not entirely correct. As stated earlier, a proper party is one whose presence is necessary for adjudicating effectively all the issues that arise for consideration in the suit. The Trial Court did not consider this aspect. More importantly, the earlier suit, namely, O.S. No. 337 of 2007, was filed by the Revision Petitioners herein on the basis that the second Respondent herein, who is the second Plaintiff in the later suit out of which this revision petition arises, is the sub-tenant in respect of one http://www.judis.nic.in 9 room in the Revision Petitioners' tenanted property and has encroached on adjoining rooms under the tenancy of the Revision Petitioners. At this juncture, no conclusions can be drawn in respect of the alleged tenancy and sub-tenancy. Nonetheless, if the said basis of O.S. No.337 of 2007 is proved, the first and second Respondents herein would have no independent right to claim the requested relief in O.S. No. 328 of 2012 as their right would have to be traced through the Revision Petitioners. In effect, the Revision Petitioners would be necessary parties if the above facts are proved. Accordingly, at this juncture, it is clear that the Revision Petitioners are necessary or proper parties in O.S. No. 328 of 2012. Although this Court is not directly concerned with this issue, there appears to be a case for hearing and disposing of both suits jointly in order to avoid inconsistency.
For the foregoing reasons, the Civil Revision Petition is allowed and the impugned order is set aside. Consequently, the First Additional District Munsif Court, Nagercoil, is directed to implead the Revision Petitioners as Defendants in O.S. No. 328 of 2012. No costs. Consequently, connected miscellaneous petition is closed.
03.07.2019
Index : Yes
Internet : Yes
das
http://www.judis.nic.in
10
SENTHILKUMAR RAMAMOORTHY, J.
das
To
1.The I Additional District Munsif Court,
Nagercoil.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
Order made in
C.R.P.(PD)(MD)No.320 of 2014
and
M.P.(MD) No.1 of 2014
03.07.2019
http://www.judis.nic.in