Madras High Court
E.Vanaroja vs S.K.Krishnan on 28 February, 2011
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.02.2011
CORAM :
THE HONBLE MR. JUSTICE S.TAMILVANAN
C.R.P (NPD) No.3025 of 2010
and M.P.No.1 of 2010
1. E.Vanaroja
2. E.Raja (alias) E.Balasubramani
3. N.Kala (alias) N.Janaki .... Petitioners
vs.
1. S.K.Krishnan
2. Ambal Traders
by Partner Mr.Arumugam
S/o Muthuramalingam Pillai
No.5, Shanmuga Raja Street,
Gandhi Nagar, Ekkatuthangal,
Chennai 600 097.
3. E.Adhutha Reddy
4. Krishnaveni
5. Menaka
6. D.Shanthi
7. D.Sridhar
8. M.Varadhan
9. T.Natesan
10. T.Rajendran
11. K.Pushpa
12. K.Thangamani
13. K.Venkatesh
14. Bhavani
15. Rani
16. Manimala
17. Kavitha .... Respondents
Civil Revision Petition filed against the order, dated 21.07.2010 made in C.M.P.No.15 of 2009 in A.S.No.256 of 2008 on the file of the Addl. District and Sessions Judge / FTC No.IV, Chennai.
For Petitioners : Mr.S.Parthasarathy, Senior Counsel
for M/s. Sathish Parasaran
For Respondents : Mrs.Hema Sampath, Senior Counsel
for Mr.N.Vijayaraj for R1
Mr.P.Subba Reddy for R4 and R5
Mr.C.Gopalakrishnan for R9, R13
and R15 to R17
ORDER
This Civil Revision has been preferred under Article 227 of the Constitution, against the order, dated 21.07.2010 passed in C.M.P.No.15 of 2009 in A.S.No.256 of 2008 on the file of the Additional District and Sessions Judge / FTC No.IV, Chennai.
2. The petitioners herein / proposed parties are third parties to the suit and the appeal. The suit was filed by one Eliiah Reddiar, the second respondent herein and one Chakrapani against the respondents 1, 8, 9 and 10 herein and two others, seeking declaration of title of the suit schedule property and other consequential reliefs. After contest, the suit was dismissed without costs. Aggrieved by which, appeal was preferred by the plaintiffs 2 and 3 and the legal representatives of the first plaintiff. Reversing the Judgment of the trial court, the appellate court decreed the suit by its Judgment and Decree, dated 13.04.1989 in A.S.No.158 of 1988. Aggrieved by which, second appeal was preferred by the first respondent herein, who was the second defendant in the suit.
3. While allowing all the second appeal, by a common Judgment, dated 24.12.1999, this Court directed the 15th Assistant Judge, City Civil Court to appoint an Advocate Commissioner and also directed the Advocate Commissioner to be appointed to inspect the property with the assistance of a surveyor to locate the properties covered by the decree, based on the ground reality. It was also permitted for the purpose of locating the properties, apart from the documents already filed in the suits, other documents and records, which might be available with the help of surveyor, after taking measurements with reference to Field Measurement Book (FMB) etc., for proper disposal, according to law.
4. After remand, the suit in O.S.No.8909 of 1979 was decreed as prayed for. Aggrieved by which, A.S.No.256 of 2008 was filed by the first respondent herein. While the same was pending, the petitioners herein filed C.M.P.No.15 of 2009, seeking an order to implead them as necessary parties. The Court below dismissed the said petition. Aggrieved by which, this Civil Revision Petition has been preferred by the petitioners / proposed parties.
5. The short point involved in this revision is whether the petitioners are entitled to be impleaded in A.S.No.256 of 2008 under Order 1 Rule 10 (2) CPC, on the grounds raised by them in this Revision.
6. Mr.S.Parthasarathy, learned Senior Counsel appearing for the petitioners submitted that the petitioners are necessary parties to be impleaded in the appeal. It is not in dispute that the first petitioner is the wife and the petitioners 2 and 3 are the son and daughter of the deceased K.Elumalai, who died on 21.11.2000, he was not a party to the suit.
7. Mrs.Hema Sampath, learned Senior Counsel appearing for the first respondent / appellant submitted that the suit was originally filed in the year 1979 by Eliiah Reddiar and two others against six defendants. The suit was dismissed by the trial court, by Judgment, dated 12.10.1987, the same was reversed by the appellate court in A.S.No.158 of 1988 and decreed as prayed for in the suit. The second appeal was preferred only by the first respondent herein, who was the second defendant in the suit. Common Judgment in S.A.Nos. 1661 of 1989, 776, 1147 and 757 of 1990 and W.P.No.8315 of 1993 was passed on 24.12.1999, whereby all the second appeals were allowed by this Court and the Court below was directed to appoint an Advocate Commissioner immediately on receipt of a copy of a Judgment and to locate the properties with the assistance of a surveyor. According to the petitioners, K.Elumalai died on 21.11.2000 itself, however, the legal representatives of the deceased K.Elumalai have come forward with a petition to implead them as parties only in the year 2009. As contended by the learned Senior Counsel appearing for the first respondent, though the deceased K.Elumalai was alive for about 21 years, after filing of the suit by the plaintiffs, he had not chosen to implead him as a party to the suit. Nearly 9 years after his demise, the petitioners as Legal Representatives of the deceased K.Elumalai have come forward with this petition to implead them as necessary parties.
8. Learned Senior Counsel appearing for the revision petitioners relying on the decision, Mumbai International Airport (P) Ltd., vs. Regency Convention Centre and Hotels (P) Ltd., reported in 2010 (7) SCC 417 submitted that the petitioners are entitled to be impleaded in the appeal. However, as per the decision, the Hon'ble Apex Court has held that Order 1 Rule 10 (2) CPC is an exception to the general rule with regard to impleadment of parties. It is the plaintiff, who chooses defendants and he cannot be compelled to sue a person against whom he seeks no relief. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party, has no right to be impleaded against the wishes of the plaintiff. But that general rule is subject to the provisions of Order 1 Rule 10 (2) CPC by which the court is given the discretion to add a party, any person who is found to be a necessary party or proper party.
9. Order 1 Rule 10 (2) CPC reads as follows :
Court may strike out or add parties The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or 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, be added.
10. It is a discretionary power of the Court that could be exercised, either upon application or without application, direct to implead necessary party for complete and proper adjudication, however, that is an exception to the general rule.
11. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate the matter, in favour of or against whom the decree is to be made. However, if a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him against the wishes of the plaintiff, the 'dominus litis'.
12. Relying on Kasturi vs. Iyyamperumal, 2005 (6) SCC 733, Sumtibai vs. Paras Finance Co., 2007 (10) SCC 82, Ramesh Hirachand Kundanmal vs. Municipal Corpn. of Greater Bombay, 1992 (2) SCC 524, Anil Kumar Singh vs. Shivnath Mishra, 1995 (3) SCC 147, the Hon'ble Apex Court held in the decision reported in 2010 (7) SCC 417 (cited supra), that Rule 10 (2) CPC is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. In exercising its judicial discretion under the said rule, the court will of course act according to reason and fair play and not according to whims and caprice.
13. It is a well settled proposition of law that the Court has the discretion either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.
14. In Ramesh Hirachand Kundanmal vs. Municipal Corpn. of Greater Bombay reported in 1992 (2) SCC 524 and Anil Kumar Singh vs. Shivnath Mishra reported in 1995 (3) SCC 147, the Hon'ble Apex Court has explained that in all the circumstances, persons may be added as parties, if they are necessary or proper parties for the adjudication of the dispute.
15. In Mumbai International Airport (P) Ltd., vs. Regency Convention Centre and Hotels (P) Ltd., reported in 2010 (7) SCC 417, the Hon'ble Supreme Court has found thus :
"22. Let us consider the scope and ambit of Order 1 Rule 10 (2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition ca be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10 (2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice."
16. As held in Ramji Dayawala and Sons (P) Ltd., vs. Invest Import, reported in 1981 (1) SCC 80, reiterating the view of Lords Mansfield in R vs. Wilkes, 98 ER 327, the term "discretion" is defined as follows :
"when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful; but legal and regular."
17. If a plaintiff makes an application for impleading a person as a defendant, on the ground that he is a necessary party, the Court may implead him, having regard to the provisions of Rules 9 and 10 (2) of Order 1 CPC. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party.
18. In the light of various decisions rendered by the Hon'ble Supreme Court, it is clear that in general, when the plaintiff is a suit, being "dominus litis", may choose the persons against whom he wishes to litigate and he cannot be compelled to sue a person against whom he does not seek any relief, however, the general rule is subject to the provisions of Order 1 Rule 10 (2) CPC, which provides for impleadment of proper or necessary parties.
19. In the instant case, the suit was filed in the year 1979 by the plaintiffs in the suit, seeking for a declaration of title to the schedule mentioned property and consequential other reliefs against the defendants therein. Subsequently, it went up to the second appeal and this Court, by a common Judgment, dated 24.12.1999, allowed the second appeals and gave directions to the Court below to appoint an Advocate Commissioner, in order to locate the properties with the help of surveyor with reference to revenue records. Though, K.Elumalai, through whom the petitioners in C.M.P.No.15 of 2009 are claiming right died on 21.11.2000, as per their affidavit, had not chosen to file any application to implead him as a party either before the trial court or in the first appellate court or the second appeal, though he was alive for about 21 years, as contended by the learned Senior Counsel for the first respondent. It is seen from the cause title that the appellant and most of the respondents were residing only at Pillayar Koil Street, Ekattuthangal Village, Chennai-32. In such circumstances, as contended by Mrs.Hema Sampath, learned Senior Counsel appearing for the first respondent, it cannot be said that the petitioners had no knowledge about the suit, appeal and the pendency of the second appeal, after filing of the suit in the year 1979, more than 31 years having lapsed. By a common Judgment, while allowing the second appeals, including the second appeal relating to this Revision, this Court directed the court below to appoint an Advocate- Commissioner to identify the properties with the help of a surveyor. It cannot be disputed that the scope of the direction given in the common Judgment, dated 24.12.2009 in the second appeal is only for a specific purpose and by impleading third parties in the Revision, the narrow scope cannot be expanded.
20. In such circumstances, impleading the persons would certainly cause prejudice to the rights of other contesting parties. As the petitioners are not parties to the suit, first appeal and the second appeal, the decision rendered without impleading them would not bind the petitioners and accordingly, there would be no prejudice caused against the petitioners.
21. It is well settled that only the plaintiff in a suit is the dominus litis and accordingly, the plaintiff has to choose the persons against whom he wishes to litigate and he cannot be compelled by any other party, to sue a person against whom he does not seek any relief be impleaded. Consequently, a person, who is not a party has no right to be impleaded against the wishes of the plaintiff. However, the general rule is subject to the provisions of Order 1 Rule 10 (2) of the Code of Civil Procedure, that is a judicial discretion of the court for proper adjudication, that can be exercised by the Court with an application or without an application, in order to meet the ends of justice.
22. in the instant case, the Court below has passed the order, exercising its judicial discretion, whereby dismissed the application filed by the petitioners herein. As discussed earlier, K.Elumalai was alive for about 21 years, but he had not chosen to implead him as a party. Only as legal heirs of the deceased, K.Elumalai, the petitioners herein had come forward with a petition in the year 2009, nearly 30 years, after the filing of the suit and after the direction given by this Court in the second appeal for a specific purpose of locating the property, by way of appointing an Advocate-Commissioner and taking measurements, with the help of surveyor, as per legally acceptable records. Since the petitioners are not parties to the proceeding, the Judgment and Decree would not bind the petitioners and as such, there could be no legal grievance to the petitioners / proposed parties for not impleading them at this stage and on the other hand, impleading them would certainly cause further delay and prejudicial to the rights of other parties.
23. In the aforesaid circumstances, I could find no error in the impugned order passed by the court below, dismissing the application filed by the petitioners herein, so as to warrant any interference by this Court under Article 227 of the Constitution of India. I could find no illegality or material illegality in the impugned order, while exercising the superintending power of this Court under Article 227 of the Constitution of India and hence, the revision is liable to be dismissed.
24. In the result, this Civil Revision Petition is dismissed. Consequently connected miscellaneous petition is also dismissed. However, there is no order as to costs.
tsvn To The Addl. District and Sessions Judge / FTC No.IV, Chennai