(2005) 3 MLJ 306 (Mad) Comparative Citation(s) : (2005) 5 CTC 250 IN THE HIGH COURT OF JUDICATURE AT MADRAS Present

: Mrs.R.Banumathi, J. Case Number(s) : C.R.P.No.1624 of 2003 and C.M.P.No.11912 of 2003 Judgement Date : Thursday 16th of June 2005 Kandasamy and others Versus M.Palanisamy and others .....Respondent(s) .....Appellant(s)

Civil Procedure Code (V of 1968) O. 1, Rule 10 Injunction suit Applicatioin by third paties to implead them in the suit Application allowed Revision against that order Object of O. 1, Rule 10(2), C.P.C. is not to prevent multiplicity of proceedings Necessary consideration before the Court is whether a party is necessary or proper party Proposed parties have half share in the property Their presence is very much essential for disposal of the suit Impugned order confirmed. The object of Rule 10(2), C.P.C. is not to prevent multiplicity of proceedings. The necessary consideration before the Court, while determining the question of impleadment of a party to the proceedings is whether the party is necessary or proper party. A necessary party is one without whom no order can be made effectively. A proper party is one whose presence is necessary for a complete and final decision of the question involved in the proceeding. [Para. 12] As discussed earlier, the proposed parties have half share in the property. Their presence is very much essential for determining the right of the plaintiff and his brother M in the suit property. This is all the more so, when the defendants 1 and 2 themselves have raised the plea that the legal heirs of M are the necessary parties. The learned District Munsif has rightly allowed the application. There is no improper exercise of discretion warranting interference. This revision has no merit and the same is bound to fail. [Para. 13] In an application for impleading parties, the necessary consideration before the Court is whether the proposed party is a necessary or proper party to the proceeding.

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P.Valliappan, for Petitioners. P.Mathivanan, for Respondents. The Court made the following ORDER: This revision is directed against the order of the District Munsif, Mettur, dated 31.3.2003, in I.A.No. 208 of 2003 in O.S.No. 48 of 1997 allowing the petition filed under O.1, Rule 10(2), C.P.C. The defendants 2 and 3 are the revision petitioners. 2. The brief facts necessitated for disposal of this revision petition could briefly be stated thus: The suit property relates to a house with the vacant site thereon in Amani Surapalli Village, Ist Ward in East Alamara Theru, Jalakanda-puram Sub-Registration District. The case of the plaintiff is that the suit property has been purchased by the plaintiff and his brother Madaiyya Chettiar by a sale deed dated 27.4.1953. From the date of purchase both of them were in possession and enjoyment of the suit property. The brother of the plaintiff Madaiyya Chettiar died about 10 years ago. Even after his death, the plaintiff continued to be in possession of the suit property as absolute owner. House tax assessment has been levied in the name of the plaintiff and he has been regularly paying the house tax to the local body. The defendants house is situated on the West of the suit property. The defendants have no manner of right, title or interest in the suit property. While so, on 2.2.1997, the defendants have made attempts to trespass into the suit property and encroach upon the portion of the same, which was prevented by the plaintiff with the help of neighbours. Hence, the plaintiff has filed the suit for permanent injunction, restraining the defendants from in any manner interfering with the plaintiffs peaceful possession and enjoyment of the suit property. 3. Denying the absolute right of the plaintiff in the suit property, the defendants have filed a written statement contending that the deceased Madaiyya Chettiar left his wife, son and daughter as his legal heirs. They have not been added as necessary parties to the suit and hence, the suit is bad for non-joinder of necessary parties. The defendants have also contended that the plaintiffs vendor Kullichetty is also the vendor of the defendants father Sankara Chetty in the year 1943. In both the sale deeds, a common wall has been incorporated. From the date of purchase, family of the defendants have been enjoying the wall without any let or hindrance. The plaintiff demanded the properties of the defendants for a nominal sum, which was denied by them. Hence, aggrieved over the same, the plaintiff has filed the vexatious suit. 4. During the pendency of the suit I.A.No. 208 of 2003 was filed by the respondents 1 and 2, who are the son and wife of Madaiyya Chettiar, to implead themselves as defendants 3 and 4. The respondents 1 and 2 have pleaded that they are entitled to half share in the suit property and that they came to know about the suit filed by the third respondent/plaintiff only on 16.2.2003 stating that they have been out of Village and had been in Bangalore for

eking out their livelihood. The respondents 1 and 2

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sought to implead themselves as defendants 3 and 4. 5. The application was resisted by the defendants 1 and 2 by filing a counter statement contending that the impleading petition is filed to delay the trial proceedings. I.A.Nos. 914 of 2002 and 28 of 2003 have already been filed by the plaintiff with a view to delay the trial proceedings. The plaintiff has invented a reason by setting up his close relatives and filed this vexatious petition in order to further prolong the matter. The proposed parties are not necessary parties and hence, they are not to be impleaded as parties to the suit. 6. Upon consideration of the averments in the affidavit and counter statement the learned District Munsif has allowed the application finding that the petitioners, who are respondents 1 and 2 herein are proper and necessary parties. Pointing out that under the sale deed dated 27.4.1953 the suit property was jointly purchased by Madaiyya Chettiar and Soundappa Chettiar it was held that the petitioners being the legal heirs of Madaiyya Chettiar are necessary parties. The contention of the petitioners that they came to know about the pendency of the suit only on 16.2.2003, when the suit property was measured by the Panchayatdars was accepted by the lower Court. 7. Aggrieved over the allowing of the application under O.1, Rule 10(2), C.P.C. the revision petitioners/defendants 1 and 2 have filed this revision. The learned counsel for the revision petitioners has submitted that the plaintiff has set up his brothers wife and his son to delay the trial proceedings. Submitting that the respondents 1 and 2 are not necessary parties for determination of the issues involved, the learned counsel has contended that the lower Court erred in allowing the application. It is further submitted that even if there is any dispute between the plaintiff and the proposed parties/respondents 1 and 2, it is only an interse dispute between the parties, which is not germane for determination of the issues arising in this case. 8. Countering the arguments, the learned counsel for the respondents 1 and 2/proposed parties has drawn the attention of the Court to the averments in para.(3) of the written statement, wherein, the defendants 1 and 2/revision petitioners themselves have raised the plea that the legal heirs of Madaiyya Chettiar are necessary parties. It is submitted that as per the sale deed executed by Subramaniya Chetty in favour of plaintiff Soundappa Chetty and Madaiyya Chettiar, when Madaiyya Chettiar is having half right in the suit property, the lower Court has rightly exercised the discretion in allowing the petition and that there is no reason warranting interference. 9. In allowing the application under O.1, Rule 10(2), C.P.C. ordering impleading of respondents 1 and 2 whether there is any improper exercise of discretion is the short point

that arises for consideration in this revision. 10. The suit property relates to the house property in Amani Surapalli Village, Ist Ward, East Alamara Theru, Jalakandapuram Sub-Registration District and the vacant cite thereon measuring East West 24 feet and north south 64 feet. Admittedly, the suit property was jointly purchased by the plaintiff Soundappa Chetty and his brother Madaiyya Chettiar under a sale deed dated 27.4.1953 from one Subramania Chetty. Though the plaintiff has claimed to be in exclusive possession of the entire extent of the suit property, the fact remains that the joint purchaser Madaiyya Chettiar (since deceased) and his legal heirs son and wife/the respondents 1 and 2 are having the right in the suit property. In fact pointing out the right of deceased Madaiyya Chettiar and his legal heirs, in para.(3) of the written statement, the defen-

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dants have averred that the necessary parties have not been added as parties to the suit and hence the suit is bad for non-joinder of necessary parties. Having pleaded in the written statement that the legal heirs of Madaiyya Chettiar are necessary parties, now it is not open to the revision petitioners to contend that the application to implead the son and wife of Madaiyya Chettiar ought not to have been allowed. 11. The suit is of the year 1997. The written statement was filed by the defendants 1 and 2 even in 1998. Nearly five years thereafter the respondents 1 and 2 have filed the application I.A.No. 208 of 2003 for impleading themselves. The revision petitioners raised strong objection for impleading the proposed parties on the ground that the application has been belatedly filed nearly five years after the filing of the suit. In the affidavit the proposed parties have stated that they left for Bangalore eking out their livelihood and that they have left their share of the property in the custody of the third respondent/plaintiff. Further, it is averred that they came to know about the dispute only when the property was measured by the Panchayatdars showing the availability of only East West 22.6 feet. There is no reasons to disbelieve the reason stated by the proposed parties/respondents 1 and 2. The parties could be added or struck of at any stage. Mere delay in filing the petition cannot be the reason for declining the permission to implead. 12. The object of Rule 10(2), C.P.C. is not to prevent multiplicity of proceedings. The necessary consideration before the Court, while determining the question of impleadment of a party to the proceedings is whether the party is necessary or proper party. A necessary party is one without whom no order can be made effectively. A proper party is one whose presence is necessary for a complete and final decision of the question involved in the proceeding. 13. As discussed earlier, the proposed parties have half share in the property. Their presence is very much essential for determining the right of the plaintiff and his brother

Madaiyya Chettiar in the suit property. This is all the more so, when the defendants 1 and 2 themselves have raised the plea that the legal heirs of Madaiyya Chettiar are the necessary parties. The learned District Munsif has rightly allowed the application. There is no improper exercise of discretion warranting interference. This revision has no merit and the same is bound to fail. 14. Therefore, the order in I.A.No. 208 of 2003 in O.S.No. 48 of 1997, dated 31.3.2003, passed by the learned District Munsif, Mettur, is confirmed and this revision petition is dismissed. Consequently, the connected C.M.P.No. 11912 of 2003 is also dismissed. In the circumstances of the case, there is no order as to costs. P.V. --------Petition dismissed.