Madras High Court
C.Cheraiselvan vs V.M.D.Kathiravan on 7 December, 2021
C.R.P.(MD) No.958 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.12.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(MD)No.958 of 2020
and
C.M.P(MD) No.6232 of 2020
C.Cheraiselvan ... Petitioner
Vs.
1.V.M.D.Kathiravan
2.C.Veeraganesan ... Respondents
PRAYER:- Civil Revision Petition filed under Article 227 of
Constitution of India, to set aside the fair and decreetal order dated
14.08.2020 passed in I.A.No.824 of 2019 in A.S.No.38 of 2019 on the
file of IV Additional District Court, Madurai.
For Petitioner : Mr.D.Baskar
ORDER
The revision petitioner is the appellant in A.S.No.38 of 2019 and
the plaintiff before the trial Court in O.S.No.189 of 2014. The suit in
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C.R.P.(MD) No.958 of 2020
O.S.No.189 of 2014 was filed by the petitioner herein for recovery of a
sum of Rs.8,44,900/- with subsequent interest at 6% per annum on
Rs.7,00,000/- from the date of plaint till the date of realization against
the first respondent herein.
2.The cause of action for institution of the above suit was certain
financial transactions between the petitioner and the first respondent and
the proposed respondent Veeraganesan in respect of the auction purchase
of the property, which was brought to sale by the Deputy Registrar of
Co-operative Society, Madurai. In fact, the three of them had entered
into partnership agreement on 16.07.2010. The petitioner would submit
that the balance consideration was paid by the three of them and the sale
certificate was registered on 16.09.2010. However, the original sale
certificate and other receipts were not handed over to the plaintiff. The
plaintiff demanded the partition of the property in view of the attitude of
the respondents herein. It appears that the first respondent had sold
2 acre 86 cents from the property to one Sahaselvaraj without informing
the plaintiff and on applying for encumbrance certificate, he came to
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C.R.P.(MD) No.958 of 2020
learn that he had been cheated by the respondents herein. This has led to
the filing of the suit.
3.The suit was only instituted against the first respondent herein.
In the written statement that has been filed by the first respondent, apart
from raising the defences on merits, the first respondent had also stated
that besides Veeraganesan, another person Sathasivam was also a party to
this transaction and therefore, the suit is bad for non-joinder of necessary
parties, namely, Sathasivam and Veeraganesan.
4.In the reply statement, the plaintiff had taken a stand that the
Veeraganesan and Sathasivam were neither necessary nor proper parties
to the suit. The catagoric pleadings to this effect has been taken in
paragraph No.6. Thereafter, the suit in O.S.No.189 of 2014 was taken up
for trial by the learned Third Additional Subordinate Judge, Madurai.
The additional issue framed in the suit was whether the suit was
maintainable on account of non-joinder of necessary party. Ultimately,
by judgment and decree, dated 14.08.2018, the suit was dismissed and
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C.R.P.(MD) No.958 of 2020
the learned Third Additional Subordinate Judge, Madurai, had returned
the finding in the additional issue that the suit was definitely bad for
non-joinder of necessary parties. The plaintiff thereafter filed the appeal
in A.S.No.38 of 2019. In the said appeal, he has taken out an application
in I.A.No.824 of 2019 to implead the second respondent herein as the
second defendant in the suit in O.S.No.189 of 2014. The reason for
taking out this application has been set out in paragraph No.5 of the
affidavit filed in support of the petition, wherein the petitioner had stated
as follows:-
5. I further submit that since the lower Court
came to the conclusion that the second respondent is a
necessary party to suit, I have come forward with this
application to implead the second respondent as 2nd defendant
in the suit in order to get a binding adjudication in his
presence as per the judgment of the lower Court.
5.The first respondent had filed a counter inter alia contending
that despite the written statement filed by the first respondent that the
second respondent herein and Sathasivam were necessary parties to the
suit, the petitioner had not cared to implead them. On the contrary, in
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C.R.P.(MD) No.958 of 2020
the reply statement, had stated that they were not necessary parties to the
suit. The present application is only an attempt to fill up the lacuna,
since the trial Court has held against the petitioner with reference to non-
joinder of parties. The proposed respondent had also taken a similar
stand. The learned Fourth Additional District Judge, Madurai, dismissed
the said petition. Aggrieved by which, the petitioner has filed this civil
revision petition.
6.Heard the learned counsel appearing on either side and perused
the records.
7.The above narration of facts would clearly show that the
petitioner had taken a definite stand that the presence of the second
respondent was unnecessary in the suit as he is neither the necessary nor
proper party. In the reply statement, such a categoric stand has been
taken. Although an additional issue regarding non-joinder of parties, had
been taken, even thereafter the plaintiff had not come forward to implead
the parties. Now, after having lost in the trial Court on the ground of
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C.R.P.(MD) No.958 of 2020
non-joinder of necessary parties, the appellant cannot be permitted to fill
up the lacuna by taking out this application. That apart, the issue of
limitation has also arisen. The petitioner, having confidently taken a
stand that the said Veeraganesan is not a necessary party, cannot now
turn around to implead the very same Veeraganesan, only on the ground
that the trial Court has held against him with regard to the non-joinder of
necessary party, namely, Veeraganesan.
8.In these circumstances, I do not find any reason to interfere with
the order of the learned Fourth Additional District Judge, Madurai.
Accordingly, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
07.12.2021
Index:Yes/No
Internet:Yes/No
cp
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C.R.P.(MD) No.958 of 2020
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:-
The IV Additional District Judge,
Madurai.
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C.R.P.(MD) No.958 of 2020
P.T.ASHA, J.
cp
C.R.P(MD)No.958 of 2020
and
C.M.P(MD) No.6232 of 2020
07.12.2021
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