The Devangudi Ramaswamy ... vs S.K.Selvaraj
2021 Latest Caselaw 24458 Mad

                                                                       CRP.(PD).Nos.837 & 838/2019


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 13.12.2021

                                                     CORAM:

                                    THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                  CRP.(PD).Nos.837 & 838/2019 and CMP.No.5466/2019

                                                [Video Conferencing]

                    1.The Devangudi Ramaswamy Mazhavarayar Educational
                      Society, rep. by its Secretary, Tmt.G.Matharasi,
                      W/o Late Gopalakrishnan Mazhavarayar,
                      School Road,
                      South Sennianatham,
                      Sethiathope,
                      Bhuvanagiri Taluk,
                      Cuddalore District.

                    2.The Devangudi Gopalakrishna Mazhavarayar Higher Secondary
                      School, rep. by its Secretary, Tmt.G.Matharasi,
                      W/o Late Gopalakrishnan Mazhavarayar,
                      School Road,
                      South Sennianatham,
                      Sethiathope,
                      Bhuvanagiri Taluk,
                      Cuddalore District.                        .. Petitioners
                                                         Vs.
                    1.S.K.Selvaraj
                    2.Kanagapitchai Pillai                       .. Respondents

                    Prayer:- Civil Revision Petition filed under Article 227 of the Constitution
                    of India, to set aside the fair and decreetal order dated 28.06.2018 made in
                    I.A.No.321/2018 and I.A.No.322/2018 in O.S.No.113/2016 on the file of
                    the learned Additional District Munsif, Chidambaram.

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                                                                               CRP.(PD).Nos.837 & 838/2019


                                         For Petitioners              :   Mr.R.Thiagarajan
                                         For Respondents              :   No appearance

                                                          ORDER

(1) This Civil Revision Petition is directed against the order dated

28.06.2018 filed by the petitioners/plaintiffs in the Suit in

O.S.No.113/2016 in I.A.No.321/2018 and I.A.No.322/2018 on the

file of the learned Additional District Munsif, Chidambaram.

(2) Brief facts that are necessary for disposal of this Civil Revision

Petition are as follows:

(3) The revision petitioners/plaintiffs filed the Suit in

O.S.No.113/2016 on the file of the learned Additional District

Munsif, Chidambaram, for permanent injunction restraining the 1st

respondent/defendant from interfering with the

petitioners/plaintiffs' peaceful possession and enjoyment of the Suit

schedule property and for consequential reliefs.

(4) The Suit was filed against the 1st respondent/defendant who was

stated to be a stranger who does not have any right over the Suit

property. The 1st respondent/defendant filed a written statement

specifically denying the averments made in the plaint. It is further

stated that the Suit property originally belonged to the family of

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CRP.(PD).Nos.837 & 838/2019

one Narayana Padayachi, Senninatham Village and that the

property, in a subsequent partition, was endowed for some charities

in connection with the Sri Pidari Amman temple.

(5) The specific case of 1st respondent/defendant is that the property is

endowed for doing certain charities for the family deity of the

original owners known as Sri Pidari Amman. It is stated that the

legal heirs of Narayana Padayachi had no right to deal with the

property which was completely dedicated for the charitable

purpose. It is also stated that the Suit for permanent injunction is

not maintainable as the title of the revision petitioners/plaintiffs is

specifically denied. The written statement would certainly show

that the respondent/defendant in the Suit has no independent right.

A plea was also taken that the Suit as framed against the

respondent/defendant is not maintainable.

(6) It is to be seen that the reading of the written statement shows that

the stand taken by defendant is that the legal heirs of the original

owner have no right, title, possession or enjoyment over the Suit

property and have no right to execute Endowment Deed dated

01.02.1958 in favour of M/s.Arulananda Secondary School,

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CRP.(PD).Nos.837 & 838/2019

Sethiyathope, in respect of the Suit property.

(7) During the pendency of the Suit, the 2nd respondent in the Civil

Revision Petition filed petition to implead himself as a party to the

Suit on the ground that the Suit property originally belonged to the

temple by virtue of endowment created by his forefathers and that

it is a public temple. It is stated by the 2nd respondent herein that he

has a right to protect the interest of temple as a worshiper. It is

further stated that the 1st respondent/defendant does not belong to

the village where the Suit property is located and that he cannot

represent the temple.

(8) The Trial Court allowed the application filed by the 2nd

respondent/defendant on the ground that he can be impleaded in

the interests of justice to dispose of the Suit more effectively and to

avoid multiplicity of proceedings. Aggrieved by the same, the

petitioners/plaintiffs have preferred the above Civil Revision

Petition.

(9) Learned counsel appearing for the revision petitioners/plaintiffs

submitted that petitioners/plaintiffs being 'Dominus Litis' are

entitled to choose the persons against whom they want relief and

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CRP.(PD).Nos.837 & 838/2019

cannot be forced to implead a third party to the Suit. Learned

counsel also submitted that the 2nd respondent/defendant has no

independent interest or right to represent the temple and therefore,

the impleading petition filed by the 2nd respondent/defendant ought

not to have been allowed. Learned counsel pointed out that the

Lower Court has proceeded as if the petitioners/plaintiffs will not

be seriously prejudiced by impleading a third party and that the

order of Lower Court is therefore, cannot be sustained.

(10) Learned counsel also relied upon the judgment of this Court in the

case of Kulasekarapattinam Vs. Narayanayadivu and Ors.

reported in 2021 (6) CTC 312, wherein this Court has held as

follows:

....“The second question of law is also related to the first question of law. In this case, the second appellant has assumed some kind of right over the Suit property by setting up title in favour of a third party. When the appellant failed to lead any evidence suggesting that the Suit property belonged to a third party, he cannot insist on the plaintiffs to implead such third party, as the plaintiffs are the dominus litis to choose the person against whom he seeks relief when the plea itself indicate that the third party is the https://www.mhc.tn.gov.in/judis

CRP.(PD).Nos.837 & 838/2019

owner of some other property by raising some doubt with regard to the identity of property, the second question of law also cannot have any significance”. (11) The judgment relied upon the learned counsel appearing for the

petitioners/plaintiffs has no application to the facts of the case. In

the said judgment, the Suit filed by the petitioners/plaintiffs therein

was contested on the ground that the Suit property belonged to a

third party and that the Suit is not maintainable without impleading

the said third party after holding that the respondent/defendant in

the Suit had not let in any evidence to suggest that the Suit property

belonged to such third party. This Court held that the

respondent/defendant cannot insist the petitioners/plaintiffs to

implead a third party as the petitioners/plaintiffs are 'Dominus Litis'

to choose a person against whom they want relief. In the present

case, the Suit itself is filed against the person, who was not directly

interested. The stand taken by the 1st respondent/defendant in the

Suit in the written statement and the stand taken by the 2nd

respondent in the Interlocutory Application to implead himself as a

party, appears to be same.

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CRP.(PD).Nos.837 & 838/2019

(12) When a third party files an application as person having some

interest over the property, the Court will consider the bona fides of

such application. If the Court is convinced that the application is

supported by materials and bona fides, it cannot be thrown out. In

this case, it is alleged that the Suit is filed for a declaration to grab

lands belonging to the temple by using a fraudulent deed. In such

circumstances, the Lower Court is right in entertaining the

application filed by the 2nd respondent/defendant to implead as a

party. It is well settled that a worshiper can maintain a Suit to

recover the property for the temple if it is encroached by a stranger.

In this case, a stranger wants to protect the property of the temple.

This cannot be discouraged if there is nothing on record to doubt

the bona fides.

(13) In the present case, the petitioners/plaintiffs are unable to

demonstrate that the Lower Court has allowed the application of an

utter stranger who has no semblance right to implead himself to

protect the interest of the temple. This Court and the Hon'ble

Supreme Court has observed in many cases the necessity to protect

the temple properties from encroachers.

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CRP.(PD).Nos.837 & 838/2019

(14) Learned counsel appearing for the revision petitioners/plaintiffs

submitted that the Civil Court has earlier given a finding with

respect to the title of the revision petitioners/plaintiffs regarding

the Suit property and that the revision petitioners/plaintiffs is one

such party who has approached the Court to relitigate.

(15) Learned counsel appearing for the revision petitioner/plaintiff has

relied upon the order passed by the learned Additional District

Munsif, Chidambaram in I.A.No.246/2018 in O.S.No.168/2017.

The earlier Suit was filed by one M.Ramajayam against the

revision petitioner/plaintiff for permanent injunction. The revision

petitioner/plaintiff filed a petition in I.A.No.246/2018 under Order

7 Rule 11 (a) and (d) CPC to reject the plaint. Though the revision

petitioner/plaintiff raised an issue that the Suit is barred under

Order 2 Rule 2 and Section 11 of CPC, the Trial Court has given a

specific finding that the plea of res judicata and bar of Suit raised

by the revision petitioner/plaintiff under Order 2 Rule 2 CPC, was

rejected on the ground that the issue regarding res judicata or bar

under Order 2 Rule 2 CPC is a mixed question of law and fact and

that the same cannot be decided in an application under Order 7

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CRP.(PD).Nos.837 & 838/2019

Rule 11 CPC.

(16) However, it is to be noted that the application was ultimately

allowed in favour of the revision petitioner/plaintiff therein on the

ground that the Suit filed by the third party, is for permanent

injunction and that the said Suit is not maintainable, in view of the

admitted fact that the petitioner/plaintiff was not in possession.

After noticing that the petitioner/plaintiff therein has filed another

Suit for recovery of possession admitting that the petitioner herein

is in possession of the property, it was stated that the Suit for

injunction filed by the said third party against the revision

petitioner is not sustainable. This Court is unable to find any issue

or finding in the said judgment on merits. The learned counsel also

relied upon the judgment of this Court in the case of Sm.Laxmi

Siresj Vs. Sri Aduikesava Perumal Peyalwar reported in 2010 (3)

LW 62 wherein several other decisions were relied upon. The facts

in that case was different. In Bhogadi Kannababu & Others Vs.

Vuggina Pydamma & Others reported in 2006 (3) MLJ 105(SC),

he Hon'ble Supreme Court has held that in an application for

impleadment under Order 1 Rule 10 C.P.C., the Court would only

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CRP.(PD).Nos.837 & 838/2019

decide whether the presence of the applicant would be necessary in

order to enable the Court effectively and completely adjudicated

upon and that the question of strict proof whether the applicants

were also entitled to its rights involved in the proceedings, may not

be germane for decision.

(17) There is no difficulty in appreciating the position that any person

interested can be impleaded and the Court has a discretion. The

discretion has been properly exercised. This Court finds no

circumstance warranting interference.

(18) The presence of the 2nd respondent in the Suit in O.S.No.113/2016

is certainly necessary in the interest of the temple. Accordingly, the

Civil Revision is dismissed confirming the order of the learned

Additional District Munsif, Chidambaram, dated 28.06.2018 made

in I.A.No.321/2018 in O.S.No.113/2016. No costs. Consequently,

connected Civil Miscellaneous Petition is closed.

13.12.2021 cda Internet : Yes

To

1.The Additional District Munsif, Chidambaram.

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CRP.(PD).Nos.837 & 838/2019

S.S.SUNDAR, J.,

cda

CRP.(PD).Nos.837 & 838/2019

13.12.2021

https://www.mhc.tn.gov.in/judis