Madras High Court
G.Indirani vs P.Thirumalairajan on 13 July, 2021
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.07.2021
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
C.R.P.(PD) No.9 of 2019
and
C.M.P.No.252 of 2019
G.Indirani
... Petitioner / Petitioner / Proposed party / 7th Defendant
Vs
1.P.Thirumalairajan
2.P.Sarojini
3.P.Gajalakshmi
4.Meenakshisundaram
5.P.Shanmugavadivu
6.Mythili Balasubramaniam
7.Anandakumar
(Respondents 2 to 7 called absent, set ex-parte
in Lower Court, hence given up)
... Respondents / Respondents / Plaintiffs / Defendants
Civil Revision Petition filed under Article 227 of Constitution of
India to set aside the fair and final order dated 01.10.2018 passed in
I.A.No.42 of 2017 in O.S.No.100 of 2017 on the file of the Sub Court,
Kangeyam, Tiruppur District.
https://www.mhc.tn.gov.in/judis/
2
For Petitioner .. Mr.S.Saravanan
For R1 .. Mr.T.Gowthaman
R1 to R7 .. Given up
ORDER
The petitioner in I.A.No.42 of 2017 in O.S.No.100 of 2017 who is a third party to the said suit is the revision petitioner herein.
2.The revision petitioner filed the said Interlocutory Application under Order I Rule 10(2) of CPC seeking to implead herself as a defendant in O.S.No.100 of 2017.
3.A few background facts are required.
4.The revision petitioner herein had originally instituted a suit in O.S.No.39 of 2014 on the file of the Subordinate Court Dharapuram, seeking the relief of declaration of injunction over a particular property which ad measures 241 ½ sq.ft. That particular suit, on formation of the Subordinate Court at Kangeyam had been transferred and re-numbered as O.S.No.50 of 2017. The suit is still pending.
https://www.mhc.tn.gov.in/judis/ 3
5.The revision petitioner/plaintiff in O.S.No.50 of 2017 traces title a Sale Deed from one Muthukrishnan dated 20.12.1990 registered as Document No.3184 of 2019 in the concerned jurisdictional Sub-Registrar office.
6.Quite independent of this suit, which had proceeded in its own way, the defendants in O.S.No.50 of 2017 (originally O.S.No.39 of 2014 Subordinate Court Dharapuram) had within themselves filed O.S.No.362 of 2014 in the Subordinate Court Dharapuram. The 1st defendant was the plaintiff and the other defendants were shown as defendants. The said suit had been filed for specific performance of a Release Deed said to have been executed by the defendants therein in favour of the plaintiff therein. That particular suit was also transferred to Subordinate Court, Kangeyam and re-numbered as O.S.No.100 of 2017.
7.Among the properties mentioned in the Release Deed, the area of 241 ½ Sq.ft., which is the subject matter in O.S.No.50 of 2017 was also mentioned.
8.The revision petitioner herein had filed I.A.No.42 of 2017 https://www.mhc.tn.gov.in/judis/ seeking to implead herself as defendant in O.S.No.100 of 2017. That 4 application came to be dismissed by an order dated 01.10.2018 leading to the filing of the present Revision Petition.
9.Heard Mr.S.Saravanan, learned counsel for the revision petitioner and Mr.T.Gowthaman, learned counsel for the respondents.
10.The facts are not disputed and they have been narrated above.
11.The only issue which now has to be examined by the Court is whether the revision petitioner can be categorized as a necessary and proper party in O.S.No.100 of 2017.
12.Mr.T.Gauthaman, learned counsel for the respondents states that she is not. According to the learned counsel the suit in O.S.No.100 of 2017 is only a suit for specific performance of a Release Deed and which is a right exercised by the plaintiff against the defendants who had agreed to execute the Release Deed and therefore, a third party cannot be impleaded in the said suit since the third party cannot state anything about the circumstances surrounding the Release Deed or whether the deed should be given a stamp of approval by the Court. https://www.mhc.tn.gov.in/judis/ 5
13.However, Mr.S.Saravanan, learned counsel for the revision petitioner drew inspiration from [Amit Kumar Shaw and another Vs. Farida Khatoon and another] reported in (2005) 11 SCC 403, wherein while examining the scope of Order I Rule 10 of CPC, the Hon'ble Supreme Court had observed as follows:
“9.The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases:
(1)When he ought to have been joined as plaintiff or defendant, and is not joined so, or (2)When, without his presence, the questions in the suit cannot be completely decided.
10.The power of a court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will necessarily included an enforceable legal right.” https://www.mhc.tn.gov.in/judis/ 6
14.In this case, any order passed with respect to the Release Deed would directly affect the 241 ½ sq.ft., of land which the revision petitioner herein claims to have purchased by the Sale Deed dated 20.12.1990 much prior to the Release Deed, which was of the year 2014, as a matter of fact on 21.08.2014.
15.Therefore, I would hold that the revision petitioner herein would be a necessary party, if not to decide about the execution of Release Deed, but certainly to speak that the property mentioned in the Release Deed was actually not available to be released since she is the absolute owner of the same and she claims to be the absolute owner of the same and in respect of which as against the releasors and releasee, she had filed O.S.No.50 of 2017.
16.One another factor mentioned by Mr.T.Gauthaman, is that both the suits may be tried together and therefore the issue of impleading the present revision petitioner as a party defendant would not arise.
17.But I hold that it would only be appropriate that she is made a party in O.S.No.100 of 2017. Whether the two suits are to be tried together or not is left to the wisdom of the parties themselves who have https://www.mhc.tn.gov.in/judis/ to move appropriate application before the concerned Court. 7
18.I hold that her interest would certainly be affected by any other order passed with respect to Release Deed in O.S.No.100 of 2017 since her property had been included in the said Release Deed.
19.I would therefore interfere with the said order in I.A.No.42 of 2017 dated 01.10.2018 and allow the Revision Petition and direct the learned Subordinate Judge, Kangeyam to permit necessary amendment to be carried out by including the present revision petitioner as a defendant to O.S.No.100 of 2017 and further carry out necessary amendment in that regard in the suit register also. Naturally, consequent to such amendment the issue of further pleadings would arise and I am confident that the learned Subordinate Judge, Kangeyam, would bestow attention and grant necessary opportunity in this regard.
20.With the above observations, the Civil Revision Petition is allowed. No costs. Consequently, the connected Civil Miscellaneous Petition is closed.
21.If pleadings are filed and issues are framed, then from the date https://www.mhc.tn.gov.in/judis/ when the plaintiff grazes the witness box, I would place an obligation on 8 the parties and also on the learned Subordinate Judge, Kangeyam, to dispose O.S.No.100 of 2017 within a period of four months from the first date of commencement of trial.
13.07.2021
smv
Index : Yes / No
Internet : Yes / No
Speaking order : Yes / No
To:-
The Sub Court, Kangeyam.
https://www.mhc.tn.gov.in/judis/
9
C.V.KARTHIKEYAN,J.
Smv
C.R.P.(PD) No.9 of 2019
13.07.2021
https://www.mhc.tn.gov.in/judis/