Madras High Court
V.R. Arunachalam Chettiar vs Vayinagaram And Ors. on 12 November, 1987
Equivalent citations: (1989)2MLJ94
ORDER Sivasubramaniam, J.
1. This revision petition is directed against an order in IA. No. 430 of 1984 in O.S. No. 97 of 1983 on the file of the Principal Subordinate Judge, Madurai.
2. The facts leading to the filing of this revision petition ate as follows :- The respondents 1 to 5 herein as plaintiffs filed the said suit against the petitioner and the sixth respondent herein as defendants 1 and 2 and another one O.R. Arunachalam Chettiar, who was the third defendant in the said suit, for framing a scheme and for other reliefs. The suit was filed in a representative capacity by the plaintiffs Under Order 1, Rules 8, C.P.C. Even before the summons were served on the third defendant, the third defendant died on 14.7.1983. This fact was intimated to the Court on 5.8.1983 and thereafter, the plaintiffs filed a petition in I.A. No. 236 of 1984 under Order 22, Rule 4, C.P.C. for setting aside the abatement and to implead the legal representative of the deceased third defendant. As the said application was not filed within ninety days from the date of death of the third defendant; it was dismissed on 28.7.1984; During the pendency of the said application, defendants 1 and 2 filed a memo into the Court on 20.12.1983 stating as follows:
The 3rd defendant, who is one of the trustee of the plaint mentioned trust, died on 14.7.1983. This fact has already been intimated to this Honble Court even in August, 1983 and the plaintiffs have been directed to take necessary steps for impleading new trustee. Till now no steps have been taken by the plaintiffs to implead new Trustee. His eldest son, RMAR Arunachalam aged about 34, residing at 8, Chatrathu Street, Devakkottai has been recognised as the trustee in his place by the Sub Court. Devakkottai in accordance with the provisions of the scheme passed in regard to the said trust. The plaintiffs may be directed to take steps to implead the new trustee.
On the basis of the said memo, the plaintiffs again filed a petition in I.A. No. 430 of 1984 under Order 1, Rule 10, C.P.C. for impleading one RMAR Arunachalam, who is the son of the deceased third defendant, as one of the defendants in the suit. This was resisted by the defendants 1 and 2 on the ground that the petition in I.A. No. 236 of 1984 for impleading the very same legal representative is not maintainable.
3. The trial Court, after considering the objections of defendants 1 and 2, came to the conclusion that in view of the fact that the proposed party is alleged to have been appointed as a trustee as per the said memo dated 20.12.1983, it is just and necessary that he should be impleaded as a party with a view to avoid multiplicity of proceedings. Consequently, the said application was allowed. Aggrieved against the said order, the first defendant has filed the above revision petition.
4. Mr.O.V. Balaswamy, learned Counsel for the petitioner was highly critical of the procedure followed by the civil Courts in such matters. He complains that the lower Courts are not following the provisions contained in the Civil Procedure Code and the Civil Rules of Practice. The Courts do not take serious note of the specific provisions contemplated for the representative suits filed under Order 1, Rule 8, C.P.C. Though be initially contended that a petition filed under Order 1, Rule 8, C.P.C has not yet been ordered, learned Counsel appearing for the respondents pointed out that the petition was numbered as I.A. No. 189 of 1983 and publication also was made in daily newspapers. Mr.Baluswamy,after having perused the publication, pointed out that it is a glaring example to demonstrate that the lower Court has not cared to look into the relevant provisions in the Civil Procedure Code. He pointed out that the publication reads as if notice has been ordered in the application filed under Order 1, Rule 8, C.P.C. But that is not contemplated under the rules. He drew my attention to the provisions contained in Order 1, Rule 8, C.P.C. Sub-rule (2) of Rule 8 of Order 1 read as follows:
The Court shall, in every case where a permission or direction is given under Sub-r4ule (1), at the plaintiffs expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
On the basis of this provision, he contends that a notice is contemplated only after grant of permission to the plaintiffs to file a suit in a representative character. According to him, in all such cases, such permission is granted exparte and only thereafter notice is issued. In this case, this procedure has not been followed. It is also pointed out that Form No. 11 prescribed under the Civil Rules of Practice for notice of permission to sue on behalf of numerous, parties also shows that a notice is contemplated only after permission is granted to the plaintiffs. I find his objections are well founded. However, the said defect in issue of notice and the failure of the Court to grant permission at the initial stage is not relevant for the purpose of the disposal of this revision. It is for the trial Court to rectify the mistake and follow the correct procedure contemplated under law.
5. Mr. Baluswamy further contended that once the petition filed for implementing the legal representative of the deceased third defendant was dismissed, the Court had no jurisdiction to implead the very same legal representative under the provisions of Order 1, Rule 10, C.P.C. If such a procedure is allowed, then the provision relating to abatement of suit will have no meaning.
6. Mr.Subramanian, learned Counsel appearing for the respondents, on the other hand, contended that the present application has not been filed to implead the proposed party as a legal representative of the third defendant, but he is sought to be impleaded as a necessary party on the basis of the memo filed by the plaintiffs in the suit. Even otherwise, there is wide power for the Court to implead any person cannot be added under Order 1, Rule 10, C.P.C since the condition precedent for impleading a party under this provision is that the proposed party ought to have been impleaded as a party to the suit even at the initial stage and only such a party can be subsequently impleaded under this provision. Secondly, he submitted that even if the proposed party is considered to be a necessary party, it is the duty of the trial Court to give a finding as to the necessity or otherwise of impleading him as a party to the suit under Order 1, Rule 10, C.P.C In this case, the trial Court has miserably failed to advert to this important aspect. He relied on the decision of this Court reported in Pappa Ammal v. Pandiyan Bank A.I.R.1963 Mad. 480 wherein this Court held that before a Court impleads a particular person a party to a suit, it is its duty to find even at that stage whether that party is a necessary party or a proper party and that it will be only abdicating its duty if it were to reserve that question to a later stage, impleading the person as a party and exposing him to all the traveils of a litigation. It is no doubt true that before impleading a party under this provision, the Court has to consider the necessity for impleading him as a party. Even though the learned Judge has not given a finding on that aspect, it is not difficult to find out whether the said party is a necessary or a proper party, from the pleadings raised in the suit and in these proceedings. Even in the said decision, after having made the above said observations, the learned Judge found that the proposed party was a necessary party and, therefore, the revision petition was dismissed. Hence in this case, if it is found that the proposed party is a necessary party or a proper party, the matter can be disposed of without setting aside the impugned order on that ground alone.
7. The main question that is involved in this petition is whether the proposed party can be impleaded under Order 1, Rule 10, C.P.C. after the petition for impleading him as the legal representative of the third defendant was dismissed. At the outset, it must be made clear that the proposed party is not sought to be impleaded as the legal representative of the deceased third defendant. He is sought to be added as a party only on the basis of the memo filed by defendants 1 and 2 requesting the Court to direct the plaintiffs to take steps to implead the proposed party as he has been recognised as the trustee in the place of the third defendant by the Sub Court, Devakottai. Whether he is entitled to claim any rights as a trustee or not, is not relevant for the purpose of the present case. It is evident that the proposed party has advanced certain rights in the trust and trust properties and therefore, defendants 1 and 2 wanted that he should be impleaded as a party. I am unable to understand how defendants 1 and 2 can raise objections at this stage after having filed such a memo into court and invited the court to implead him as a party. On this short point alone, the order of the trial Court can be sustained.
8. The provisions in Order 1, Rule 10, C.P.C. enable the Court to implead any person as a parly to the suit 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. This power is provided under the Code in order to avoid multiplicity of proceedings at a later stage. The object of the said provision is to have effective and final adjudication of all the disputes over the suit properties. In construing the scope of this provision, this Court has held in Paramasivam v. Adilakshmi (1952)1 M.L.J 473. A.I.R.1953 Mad.618 that the power of the Court available under Order 1, Rule 10, C.P.C. is very wide and it cannot be construed on narrow terms. The same view has been expressed in Razia Begum v. Anwar Begum A.I.R.1958 S.C.886 and Provat Chandra v. Rabindra Nath A.I.R.1960 Cal.291. It is unnecessary to go into the case law in detail on this aspect since the language of the said rule is itself very clear. The Court is not deciding the question whether the third defendant is entitled to claim any right of trusteeship. Once certain claims are advanced against the suit trust and the trust properties, it is just and necessary that the party, who advances such a claim, is added as a party so that there can be an effective adjudication of the disputes between the parties concerned. There is one other aspect Which has to be noted in this case, namely, that the proposed party has not chosen to appear in Court and contest the application. So far, he has not raised any objection for impleading him as a party to the suit. On a consideration of these aspects. I am of the view that the order passed by the trial Court impleading the proposed party as a defendant in the suit is perfectly valid and no interference is called for. Hence this revision petition is dismissed. However, I make it clear that the proposed party is not added as a legal representative of the deceased third defendant, but only as a party claiming certain rights in the suit properties and on the basis of the memo filed by defendants 1 and 2 as stated above. It is open to the parties to raise all objections that are available to them in the course of the trial of the suit. In the circumstances of the case, I make no order as to costs.