Madras High Court
Sangamirtham (Died) vs B.Ashok Kumar on 5 July, 2021
C.R.P.(N.P.D).No.2370 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(NPD) No.2370 of 2018
and
CMP No.14691 of 2018
Meena
Sangamirtham (Died) ... Petitioner
Vs
1. B.Ashok Kumar
2. B.Kamal
3. A.Suseela Kanwar
4. K.Hemalatha
5. S.Ramasamy & Co.,
Rep by its Partner S.Balasubramaniam
6. S.Balasubramaniam
7. S.Sunderesan
8. S.Chelladurai
9. Anandavalli
10. The Chief Manager,
Indian Bank,
Assets Recovery Management Branch,
No.5, Ethiraj Salai,
Egmore, Chennai – 600 008.
11.The Senior Branch Manager,
Indian Bank, Vadapalani Branch,
By its Senior Manager,
Inner Ring Road, Chennai. ... Respondents
https://www.mhc.tn.gov.in/judis/
1/8
C.R.P.(N.P.D).No.2370 of 2018
Prayer :- Civil Revision Petition is filed under Article 227 of the
Constitution of India to set aside the fair and decreetal order dated
06.07.2018 made in CMP No.943 of 2016 in A.S.SR.No.22515 of 2016
in O.S.No.10802 of 2009 on the file of the Principal Judge, City Civil
Court, Chennai.
For Petitioner : Mr.N.Rajan
For R1 to R4 : M/s.Rank Associates
For R5 to R9 : No Appearance
For R10 : Mr.Jayesh B.Dolia
for M/s.Iyer and Dolia
For R11 : Mr.B.Murugavel
ORDER
This Civil Revision Petition is filed against the fair and
decreetal order dated 06.07.2018 made in CMP No.943 of 2016 in
A.S.SR.No.22515 of 2016 in O.S.No.10802 of 2009 on the file of the
Principal Judge, City Civil Court, Chennai, thereby allowing the petition
to grant leave to file an appeal suit.
2. The petitioner is the plaintiff and the respondents 1 to 4 are
the proposed appellants. The petitioner filed a suit for declaration,
declaring that the General Release Deed dated 29.01.1983 as not
enforceable and null and void. He also prayed for permanent injunction
and declaration declaring that the mortgage created by the second
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.2370 of 2018
defendant with the seventh defendant in respect of the suit property as
null and void. While pending suit, the respondents 1 to 4 filed a
petition to implead themselves as a party in the suit in I.A.No.18027 of
2010. Though, it was allowed, the plaintiff failed to carry out the
amendment and the respondents 1 to 4 were not put on notice, thereafter,
the suit was decreed. Therefore, the respondents 1 to 4 herein sought for
leave to file an appeal challenging the Judgment and Decree passed in
the suit filed by the petitioner herein and the same was allowed.
Aggrieved by the same, the petitioner had preferred the present Civil
Revision Petition.
3. The learned counsel for the petitioner would submit that
though the respondents 1 to 4 filed a petition in I.A.No.18027 of 2010,
after allowing the same, they did not take any steps to carry out the
amendment, following to grant of permission for amendment, in the light
of Order 1 Rule 10(4)(5) and Order 6 Rule 18 of CPC, on failure of the
applicant to carry out the amendment, it will not give any right
whatsoever, to the persons, who are permitted to be impleaded, to ask for
impleadment, in the appellate stage. In support of his contention, he
relied upon the following Judgments :
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.2370 of 2018
2009 (5) CTC 259 (Rajapalayam Town Amman Pottal Middle
North Street Pallar Common Fund v. Devandra Kula Velalar
Community)
1999 (3) CTC 335 (S.Ramaswamy and four others vs. The
State of Tamil Nadu rep. by its Collector, Kanyakumari District at
Nagerkoil and another)
2008 (1) CTC 343 (Sunil Gupta Vs. Kiran Girhotra and
others)
AIR 2003 Madras 416 (Southern Ancillaries Pvt. Ltd Vs.
Southern Alloy Foundaries Pvt. Ltd.,)
4. In all the above judgments, this Court elucidated the legal
position that it is well settled that the plaintiff being a dominus litus is
entitled to choose the person against whom he is seeking the relief. If at
all petitioner is having any grievance against the plaintiffs, it is open to
the petitioner to file a separate suit and contest the same against the
plaintiffs.
5. Per contra, the learned counsel for the respondents 1 to 4
submitted that it is true that they filed a petition seeking impleadment in
the suit in I.A.No.18027 of 2010 and the same was allowed. Even then,
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.2370 of 2018
the petitioner herein deliberately omitted to put the respondents 1 to 4 on
notice and obtained a decree in their absence. He further submitted that
admittedly the respondents have purchased the suit property from the
seventh defendant in the original suit by Court Auction. Therefore, they
were very much interested in respect of the suit property and they have
grievance over the Judgment and Decree in O.S.No.10802 of 2009.
Therefore, the Court below rightly granted leave to the respondents 1 to
4 herein, to prefer the appeal. He further submitted that in fact, the
respondents 1 to 4 obtained the certified copy of the plaint and the same
was duly carried out and even then the petitioner did not put the
respondents 1 to 4 on notice and obtained the decree.
6. In fact, the petitioner also filed an additional proof affidavit
stating that the petitioner have mistakenly not mentioned the names of
the auction purchasers i.e., 8 to 11 who were impleaded in the suit. Hence
she filed an additional proof affidavit to that effect that the cause title
shows the auction purchasers as 8 to11 defendants. Therefore, the Court
below rightly allowed the petition, thereby to grant leave to file an appeal
suit.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.2370 of 2018
7. Heard, the learned counsel for the petitioner and the
learned counsel for the respondents 1 to 4, 10 & 11. None appeared on
behalf of respondents 5 to 9.
8. The petitioner filed a suit for declaration. While pending
suit, the respondents 1 to 4 herein filed a petition to implead themselves
as a party to the suit in I.A.No.18027 of 2010 and the same was allowed.
Though, the amendment was carried out in the plaint and in fact, the
petitioner also filed an additional proof affidavit to show that the
respondents 1 to 4 as defendants 8 to 11 in the main suit, the respondents
1 to 4 were not put on notice. Therefore, the Trial Court decreed the suit
in their absence.
9. That apart, admittedly while pending suit, the respondents 1
to 4 purchased the suit property by way of auction. Since, the borrowers
viz., the other defendants in the suit, were facing SARFEASI
proceedings by the seventh defendant in the suit. The respondents 1 to 4
had purchased the suit property in the Court Auction and therefore, the
Court below rightly allowed the petition, thereby to grant leave to them
to file an appeal suit.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.2370 of 2018
10. In view of the above, the Judgments cited by the learned
counsel for the petitioner are not helpful to the case on hand. Hence,
this Court finds no infirmity or illegality in the order passed by the Court
below. Accordingly, the Civil Revision Petition is dismissed. No order
as to costs. Consequently, connected Miscellaneous Petition is closed.
05.07.2021
lpp
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
The Principal Judge,
City Civil Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.2370 of 2018
G.K.ILANTHIRAIYAN,J.
lpp
C.R.P.(NPD) No.2370 of 2018
and CMP No.14691 of 2018
05.07.2021
https://www.mhc.tn.gov.in/judis/
