Madras High Court
S. Ramaswamy And Four Others vs The State Of Tamil Nadu Rep. By Its ... on 8 February, 1999
Equivalent citations: 1999(3)CTC335
ORDER
1. The plaintiffs in O.S.No. 8 of 1993 on the file of the Additional Sub Court, Nagercoil, are the revision petitioners. The first respondent filed I.A.NO. 199 of 97 in the suit under Order 1, Rule 10 of the Code of Civil Procedure for impleading the second respondent as a party to the proceedings. The learned First Additional Subordinate Judge by his order dated 2.12.1997 has allowed the application and as against that order the present civil revision petition has been filed.
2. The suit has been filed for a declaration and recovery of possession of an approximate extent of 60 acres minus the area covered by R.S.No. 449/1 having an extent of 10 acres 51 cents in the land in R.S.Nos. 449/1, 2 and 3 surrounding properties coming within the stated boundaries in Arumanalloor Village. Thovalai Taluk in Kanyakumari District and for a permanent injunction restraining the first respondent State from interfering with the possession and enjoyment of the plaintiff over the portion of the schedule property excluding R.S.No. 449/1 by itself or through its Officers, servants and men. (Rallies supplied).
3. The first respondent alone was impleaded as the defendant. The affidavit in support of the application for impleading has been sworn to by the District Collector of Kanyakumari District. The allegations found in the affidavit are as under:
The petitioner/plaintiffs are entitled only to 10 acres and 51 cents in the Schedule property and to the rest of the portion they have no right. The plaint schedule property is surrounded on all the sides by Reserve Forest land. Regarding the schedule property the present first plaintiff and his brothers filed a petition before the Assistant Settlement Officer, Nagercoil, making the Tahsildar, Thovalai, the District Forest Officer and the Forest Range Officer. Azhagiapandipuram, as the respondents. The claim was rejected by the Assistant Settlement Officer. A revision to the director of Survey and Settlement was dismissed. Further revision was rejected by the Special Commissioner and Commission of Land Administration, Madras. Throughout the District Forest Officer was a party. The first plaintiff and his brothers filed writ petition before the High Court in W.P.No. 2791 of 1984 challenging the orders passed by the authorities. The District Forest Officer was the fourth respondent. The writ petition was disposed of on 19.10.1992 with a direction to the writ petitioners to invoke the remedy before the civil court after issuing necessary notice to the Government. The plaintiffs issue a suit notice on 12.11.1992 to the District Collector, Kanyakumari District. Since the property was forest land the then District Forest Officer sent a reply on 1.3.1993. The District Forest Officer was in the party array in the earlier proceedings. In the circumstances, the District Forest Officer was a necessary party since he was in the party array in the earlier proceedings regarding the schedule property and also because the property came within the reserve forest area in which the District Forest Officer administered. The District Forest Officer ought to have been joined as defendant whose presence before the court is necessary in order to enable the court effectively and completely to adjudicate upon all the questions involved.
4. The revision petitioners resisted the application contending inter alia that they are entitled to the entire property that falls within the four boundaries set out in the plaint, that the allegation that they are entitled to only 10.51 acres is not correct, that except for 10.51 acres the rest of the extent is in Reserve Forest land is also not correct, that within the four boundaries there is no land reserved as Reserve Forest and that the District Forest Officer is not a necessary party to the proceedings. The thrust of the counter is in paragraph 6. The District Forest Officer is merely a person holding an office under the State and in law only natural person and those who are vested with legal personalities alone are competent to be parties before a Civil Court and that an office of and under the State does not enjoy the status or a legal person and that no relief is sought for against the District Forest Officer. The application has been filed to delay the course of the trial. The first plaintiff had been examined as P.W.1. He had been partly cross-examined and at that stage the present application had been taken out.
5. The learned First Additional Subordinate Judge has referred to the various proceedings between the parties culminating in the writ petition and has reasoned that the present petition for impleading had been filed in consonance with the direction in the writ petition and inasmuch as in the writ petition the District Forest Officer was the fourth respondent, it was not open to the revision petitioners to contend that he was not a necessary party and the Government alone was the proper party. The learned Subordinate Judge further reasoned that no prejudice would be caused if the District Forest Officer was made the second defendant in the suit. So holding he allowed the application. Aggrieved, the present revision petition has been filed.
6. Mr. Lakshminarayanan, learned counsel for the revision petitioner, submitted that the plaintiff is the dominus litus. The Forest Officer is a person holding office under the State. The State is represented by the District Collector, Kanyakumari District. The Forest Officer has to take orders from the District Collector and in any event when once the state is represented by the Collector, it is wholly unnecessary to make the Forest Officer a party notwithstanding the fact that he was a party in the writ proceedings. The learned Counsel further submitted that by his not impleading the Forest Officer as a party, he was taking a risk which he was willing to face. But, he could not be called upon to implead a party, who, according to him. is not a necessary part to the proceedings.
7. The learned counsel in support of his submission as relief on the following judgments:
(1) Om Prakash Tewari v. State Bank of India and others, AIR 1999 All. 43; (2) Fatch Raj v. Suraj Roop and another, ; (3) Banarsi Dass Durga Prashad v. Panna Lal Ram Richhpal Oswal and others, ; (4) Moolchan v. Union of India. ; (5)Praveen Kumar Bhatia v. Mr (Mrs.) M. Ghosh and others,
8. The learned Counsel for the second respondent submitted that no prejudice at all would be caused to the revision petitioners by the second respondent, the Forest Officer, being made a party. A major portion of the properties subject matter of the suit is in Reserve Forest area and the Forest Officer alone would be in a position to furnish details and contest the suit in a proper manner. The learned counsel further submitted that the revision petitioner themselves had made the Forest Officer a party in the writ proceedings and they should not now go back on the same and leave out the Forest Officer from the array of parties and inasmuch as the revision petitioners has not made the Forest Officer a party, it has been necessary for the first respondent State to take out the application for impleading the Forest Officer as the second defendant in the suit. The learned counsel further submitted that the principle of dominus litus should not be made much of.
9. On support of her submissions she relied on the following two decisions:
(1) Committee of Management, Rata Muni Jain Inter College and another v. Ill Additional Civil Judge, Agra and others, and (2) ... ... .
10. Admittedly, the State is the defendant and so far as the District is concerned the Collector is the head of the District. Alt the other District Officers are either his associates or subordinates, but the fact remains that he is the administrative head answerable on behalf of the State in respect of all matters pertaining to the District. It is not disputed that the Reserve Forest in which, according to the first respondent State, the suit properties are situate is in Kanyakumari District under the over all control and supervision of the District Collector, though for better administrative control the District Forest Officer would take individual care of the forest area.
11. The plaintiffs seek relief against the State. The State is properly represented by the District Collector. The impleading of the Forest Officer is totally unnecessary inasmuch as whatever records and whatever clarifications regarding the dispute would be required, could always be furnished by the Forest Officer and his officials to the District Collector for the purpose of defending the case. Merely because the Forest Officer was made a party in the prior writ proceedings, the plaintiffs cannot be compelled to implead the Forest Officer as a party in the proceedings. The plaintiffs are the dominus litus. They have the right to choose the party against when they want relief. May be as pointed out in the two decisions cited by the learned Counsel for the second respondent it is observed the principle of dominus litus should not be over stretched. However, at the same time it cannot be disputed that for a party to be impleaded in the proceedings he must be a necessary party. The learned Counsel for the second respondent has not been able to convince me that the second respondent is a necessary party.
12. In the decision of the Allahabad High Court in Committee of Management etc, in a writ petition a prayer had been made for an order or direction in the nature of certiorari to quash the plaint and all proceedings in a particular suit. A particular individual had filed an application for Committee of Management and he had not been made a party.
It was found that he would be a person affected in case another person was allowed to act as Manager. The lower court overlooked this glaring feature of the case and this was sought to be rectified by the High Court. It was in those circumstances the High Court held that, "the theory of dominus litus should not be over stretched in the matter of impleading of parties, as it was the duty of the court of ensure that is for deciding the real matter in dispute, a person was a necessary party, the court could order such person to be impleaded and merely because the plaintiff did not choose to implead a person was not sufficient for rejection of an application for being impleaded."
The Allahabad High Court further observed that, "the provisions of Order 1, Rule 10(2) C.P.C. were very wide and the powers of the court were equally extensive. Even without an application to be impleaded as a party, the court could at any stage of the proceedings order that the name of any party, who ought to have been joined whether as a plaintiff or defendant or whose presence before the court might 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."
The principle is perfect. But, that was applied having regard to the facts of that case and it has no application to the present case, because the District Forest Officer is not shown to be a necessary party for the purpose of adjudication of the dispute between the plaintiffs and the State.
13. The next decision is the one reported in Gram Panchayat Garhi v. Dharambir and others, . In that case, the suit was for declaration of title and permanent injunction against dispossession. The defendant claimed title by virtue of an agreement to sell with the owner of the adjoining land. It was held that the owner of the adjoining land was a necessary party and entitled to be joined as defendant. In my view, this case has also no application to the facts of the present case.
14. In Ram Bilash Pandey and others v. Jai Narayana Gupta and others, relied on by the learned counsel for the petitioners, it has been held that, "it is for the plaintiff to decide the forum where the suit is to be impleaded as a party and his choice as to the place of institution of the suit or the parties to it can only be altered or interfered with by the Court under powers given to it by the statute and that a party to a suit cannot be thrust on an unwilling plaintiff, unless or otherwise provided by law."
15. In Foolchand v. Union of India, it has been held that it is always open to the plaintiff to implead such party as it he deems fit and proper.
16. In Om Prakash Tewari v. State Bank of India and others, it was held in a suit for recovery of loan filed by the Bank, the Insurance Company insuring for truck for which loan was obtained was not a necessary party.
17. It has not been shown in the present case as to how the respondents would be affected by the non-impleading of the second respondent as a party. The decision of the lower court for the reasons already stated cannot stand. It has also not been shown that the second respondent had any legal interest in the subject matter of the suit. It is not possible to hold that the second respondent could be impleaded in the suit merely for the purpose of enabling the first respondent State to see that the suit is properly defended. As already observed, it is upto the first respondent to utilize the services of the second respondent and his officials and the records available in his office to defend the suit. There could be absolutely no objection to this course being adopted for proper defence of the suit.
18. It has been held in Banarsi Dass Durga Prashad v. Panna Led Ram Richhpal Oswal and others, that, "as a rule the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the dominus litus. He is the master of the suit. He cannot be compelled to fight against a person against whom he did not wish to fight and against whom he does not claim any relief. Even if a person may be incidentally affected by the judgment, he need not be made a party."
19. Inasmuch as there is material irregularity in the order of the lower court, this Court is entitled to interfere in the revision. Accordingly, the order of the lower court is set aside and the application in I.A.No. 199 of 1997 is dismissed. There will, however, be no order as to costs.