Kerala High Court
Chellappan vs Krishnankutty on 25 July, 2001
ORDER S. Sankarasubban, J.
1. This C.R.P. is filed by the plaintiff in O.S. No. 936 of 1999 on the file of the Munsiff's Court, Palakkad against the order passed in I.A. No. 324 of 2000. That application was filed for impleading under O.IR. 10 CPC by the respondents 1 and 2. The suit was filed by the plaintiff for declaration of title and recovery of possession of the plaint schedule property from defendants 1 to 3. According to the plaintiff, the property was obtained by a lease executed by his grandfather. Thereafter patta was obtained from the Land Tribunal. It is the specific case of the plaintiff that he was in possession of the property and defendants 1 and 2 trespassed into the property for the purpose of conducting toddy shop. It was at this time the suit was filed. The defendants in their written statement contended that permission was given to them by the present impleading petitioners and they are in possession of the property under them. It is at this juncture respondents 1 and 2 filed impleading petition. It was contended that the property belonged to the first respondent and he has settled it on the second respondent. It is further stated that there was a suit filed by the present petitioner as O.S. No. 84 of 1981 before the Alathur Munsiff's Court in respect of the same property for title and possession against first respondent and in that suit the possession and title was found against the plaintiff. The court below after hearing both sides allowed the impleading application. It is against that the present revision is filed.
2. Learned counsel for the petitioner Sri. V. Giri submitted that the order impleading respondents 1 and 2 is illegal and without jurisdiction. According to him, plaintiff has sought relief against defendants 1 and 3 in the suit and he has not sought for recovery against the impleading petitioners. The plaintiff is going to succeed if he is able to prove his title and possession. The third parties can come in only if they feel aggrieved by the decree to be passed. It is only at that time that the impleading petitioners can approach the court, if they are actually in possession. Counsel for the petitioner submitted that the plaintiff is the dominus litus. If he does not want a relief against a person, that person cannot be a party to the suit. Further, he submitted that, since the defendants are claiming under the present impleading petitioners at the time of evidence, the impleading petitioners can be witnesses to show that they have got title to the properties. Hence, it is not necessary to implead respondents 1 and 2 as additional defendants. Learned counsel for respondents 1 and 2, Sri. Mayankutty Mather submitted that there is no question of jurisdiction involved. Under O.I.R.10(2) C.P.C., the court can implead a person if he will be affected by the orders passed. It is the discretion to be exercised by the Court below and in this case the discretion has been exercised properly. Further he submitted that, the policy under O.I.R. 10(2) is to avoid multiplicity of suits. He contended that plaintiff had filed earlier suit against the present respondents 1 and 2 where he failed to prove his title and possession. So far as the defendants 1 to 3 in this case are concerned they have got permission from the impleading petitioners to conduct the toddy shop. Actually, they are licences under impleading petitioners. Hence, the impleading petitioners are necessary parties to the suit.
3. O.I.R. 10(2) CPC states that the Court may, at any stage of the proceedings, either upon or without the application of either party, and no such terms as may appear to the Court to be just, order that the name of any party improperly joined, where 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. It is true that ordinarily the plaintiff is the sole person to judge as to who should be made as defendants. But discretion is given to the Court to add any person as plaintiff or defendant, either on application of the parties or when it is satisfied that a particular party should be impleaded in the suit. Ordinarily a suit is filed with a particular cause of action against the defendants. The relief will be claimed only against that defendants. But in suits concerning immovable property, where questions of title and possession are involved, it may happen that a decision may affect another person who has a direct interest in the property. The Courts have held that in such cases, in order to avoid multiplicity of suits, it will be proper if such person is impleaded as additional defendants. Of course, the courts have cautioned that it is only those persons whose claims are bona fide should be impleaded and no busybody is to be impleaded. Krishna Iyer, J. (as he then was) in Vishnu Naboothiri v. Sankara Pillai, 1968 KLT 692 had given a test for impleading additional parties under O.I.R. 10(2) C.P.C. His Lordship quoted from Mulla's C.P.C. Vol. I which reads as follows:
"The test is not whether the joinder of the person proposed to be added as a defendant would be according to or against the wishes of the plaintiff or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the plaintiff. It is whether the relief claimed by the plaintiff will directly affect the intervener in the enjoyment of his rights. It is not enough that the plaintiff's right, and rights which the person desiring to be made a defendant wishes to assert should be connected with the same subject matter. The intervenor must be directly and legally interested in the answers to the questions involved in the case. A person is legally interested in the answer only if he can say that it may lead to a result that will affect him legally - that is by curtailing his legal rights."
His Lordship further held that, "In a suit for recovery of possession, a person who claims to be in possession will undoubtedly be prejudiced if a decree were passed and therefore he is a proper party. Whether on the merits his contention is sustainable is another matter".
It was further stated that a party can be impleaded if he has got a direct interest, a legal interest and not a commercial interest. In Razia Begum v. Anwar Begum, AIR 1958 SC 886, the Hon'ble Supreme Court has held as follows:
"In a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the suit matter of the litigation".
4. Learned counsel for the petitioner brought to my notice the decision in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524 and submitted that the observation in the above case show that the earlier view of this Court in Vishnu Namboodiri's case (supra) and other cases is not correct. But, according to me, after going through the decision I do not find any observation which is at variance with what has been stated by Krishna Iyer, J. In the above case, the facts are as follows:
The appellant was in possession of a service station under a dealership agreement on the land held by respondent 2 (Hindustan Petroleum Corporation) as lessee. Respondent 1, the Municipal Corporation issued a notice under S. 351 of the Bombay Municipal Corporation Act to the appellant for demolition of two chattels on the terrace of the premises on the ground that these were unauthorised structures. The appellant instituted a suit challenging the validity of the notice and for injunction restraining the Municipal Corporation from demolition of the structures. The Court granted an interim injunction. Thereafter Hindustan Petroleum Corporation applied for being impleaded as additional defendant in the suit on the ground that it had material to show that the structures were unauthorised and that it was a necessary party to the litigation. The Court took the view that the lessee had right, title and interest in the suit premises, and therefore, was proper and necessary party. The court took the view that the lessee had right, title and interest in the suit premises, and therefore, was proper and necessary party. Accordingly, the Court by its order directed the appellant to add Hindustan Petroleum Corporation as defendant and amend the plaint suitably. That was challenged before the High Court by a petition under Art. 227 of the Constitution. The High Court dismissed the petition. In appeal before the Supreme Court it was contended that impleadment of Hindustan Petroleum Corporation was not proper. Allowing the appeal the Honourable Supreme Court held as follows:
"The Courts below were wrong in concluding that respondent 2 was a necessary or a proper party to be added as a defendant in the suit instituted by the appellant. The subject matter of the litigation was not the service station as assumed by the courts below. The notice does not relate to that structure but is in relation to the two chattels stated to have been erected by the appellant unauthorisedly. Respondent 2 had no direct interest in the subject matter of the litigation i.e., the chattels and the demolition of the same in pursuance to the notice is not a matter which affects the legal rights of the respondent. Though respondent 2 is interested in supporting the Municipal Corporation and sustaining the action taken against the appellant but that does not amount to any legal interest in the subject matter in the sense that the order, if any either in favour of the appellant or against the appellant would be binding on this respondent. Though being lessee of the premises, the Hindustan Petroleum Corporation has an answer for the action proposed by the Municipal Corporation against the appellant, but for the purpose of granting the relief sought for by the appellant by examining the justification of the notice issued by the Municipal Corporation, it is not necessary for the Court to consider that answer. Therefore, the presence of the respondent cannot be considered as necessary for the purpose of enabling the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. The appellant is proceeded against by the Municipal Corporation for the alleged action in violation of the Municipal laws. The grievance of the respondent against the appellant, if any, could only be for violation of the agreement and that is based on a different cause of action".
In considering the above question, in paragraph 14 the Court observed as follows:
"It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally by curtailing his legal rights".
Thus, from the above case, it can be seen that impleading petition was dismissed because the court found that the Hindustan Petroleum Corporation has no interest in the chattels which was unauthorisedly constructed by the plaintiff. The Hindustan Petroleum Corporation had entered an agreement with the plaintiff and if there is violation of the agreement that will give rise to a different cause of action.
Mohammed, J. in Beepathumma v. Thankamma, 1993 (2) KLT 152, has catalogued various decisions of this question and held as follows:
"It is the power of the court to add parties whose presence before it may be necessary in order to adjudicate all questions involved in the suit. Here the court may be working against the wishes of the plaintiff who instituted the suit. The impleadment can be allowed if the intervener claims some independent rights in the property. I must here had that such claim shall be bonafide and support by prima facie materials. It shall not be frivolous or illusory".
On the basis of the above decisions, if the facts in the present case are analysed, the resultant position is this. The plaintiff is claiming title and possession over the plaint schedule property. The defendants say that they are in possession of the property on the basis of the permission given by the impleading petitioners. Thus, the title of impleading petitioners are to be decided in the present case. Hence, if they are not parties, it is going to prejudicely afffect them. In the above view of the matter, I hold that the order passed by the Court below is correct and does not call for any interference.
5. The C.R.P. is dismissed.