Madras High Court
M.Murugan vs Arukkaniammal on 23 July, 2021
CRP(PD)No.1405 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CRP(PD)No.1405 of 2021
and
CMP.No.10926 of 2021
[Through Video Conferencing]
M.Murugan ... Petitioner / Third Party
vs.
1.Arukkaniammal
2.Parameshwari
3.Muthusamy
4.Sruthi Lakshmi
5.Vishali
6.Seethappan
7.Palaniammal
8.Jaganathan
9.Minor Aathish
10.Marappa Gounder
11.Mohanasundaram
12.Minor Sudheep
13.Shanmugam
14.Minor Dhanya ... Respondents / Plaintiffs & Defendants
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
India praying to set aside the Fair and Final Order dated 03.01.2020 in
unnumbered I.A. of 2019 (CFR.2353 of 2019) in O.S.No.356 of 2019 on the
file of the II Additional District Court, Erode and allow the Civil Revision
Petition by directing the trial Court to number the I.A and decide the issue in
accordance with law after affording opportunity to all the parties.
For Petitioner : Mr.S.Kaithamalai Kumaran
For Respondents : No appearance
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CRP(PD)No.1405 of 2021
ORDER
The revision petitioner had filed an Interlocutory Application which was
not even been numbered in unnumbered I.A. of 2019 (CFR.2353 of 2019) in
O.S.No.356 of 2019 before the II Additional District Court at Erode.
2.The said application was filed under Order I Rule 10 (2) of the Code of
Civil Procedure seeking to implead the revision petitioner as a defendant in the
said suit.
3.Heard Mr.S.Kaithamalai Kumaran, learned counsel for the revision
petitioner.
4.The learned counsel had given a series of dates with respect to the
institution of the suit in O.S.No.356 of 2019 and it is quite disturbing. It is
stated that the suit was presented on 21.08.2019 and was returned for certain
compliances on the same day. Thereafter, it was represented on 28.08.2019 and
assigned the suit number on 04.09.2019. The Interlocutory Applications in
I.A.Nos.475 - 477 of 2019 came to be filed under Order 32 Rule 7 of the Code
of Civil Procedure seeking to appoint guardians for the minors who were
parties to the said suit.
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CRP(PD)No.1405 of 2021
5.The suit had been instituted for partition and separate possession with
respect to a property in which, according to Mr.S.Kaithamalai Kumaran, the
revision petitioner has a subsisting interest owing to the fact that part of the suit
property had been settled by his mother in his name. Incidentally, it has been
pointed out that both the plaintiff and the defendants in the suit traced title in
the property mentioned in the Schedule to the plaint through their grand father
namely Ramana Gounder.
6.The plaintiff's mother is a daughter of Ramana Gounder. She had
settled the property by way of registered Settlement Deed a portion of the
property in favour of the plaintiff. Naturally, in any suit touching upon such
property, the revision petitioner would consider himself to be a necessary and
proper party to such proceedings.
7.However, the plaintiffs and defendants appear to have ignored the
revision petitioner herein. They had instituted the suit and which suit, to
continue the narration further it was referred on 21.11.2019 before the Lok
Adalat on a memo filed by the plaintiff and defendants.
8.It is not clear whether the suit summons have been effected on the
defendants by that date and if it had not been issued by the registry the
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CRP(PD)No.1405 of 2021
appearance of the defendants before the Court should have been viewed with
some scrutiny by the learned II Additional District Judge.
9.At any rate, the suit was permitted to be referred to the Lok Adalat and
the Lok Adalat also passed an award dated 29.11.2019. Thereafter, the award
was forwarded back to the Court and prior to the Court passing any decree, the
revision petitioner herein filed application as stated in unnumbered application
in CFR No.2353 of 2019 under Order I Rule 10 (2) of the Code of Civil
Procedure.
10.Quite apart from examining whether a party is a necessary party for
the suit proceedings it has to be determined whether any Judgment or Order
passed in the suit or proceeding would directly affect the interest of the person
who seeks to implead himself or herself.
11.In 2005 (11) SCC 403, Amit kumar shaw & another vs. Farida
khatoon and another, the Hon'ble Supreme Court had held as follows:
“9.The object of Order I Rule 10 is to discourage
contests on technical pleas, and to save honest and
bonafide claimants from being non-suited. The power to
strike out or add parties can be exercised by the Court at
any stage of the proceedings. Under this rule, a person
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may be added as a party to a suit in the following two
CRP(PD)No.1405 of 2021
cases:
(1)When he sought to have been joined as plaintiff
or defendant, and is not joined so, or
(2)When, without his presence, the questions in the
suit cannot be completely decided.
10.The power of a Court to add a party to a proceeding
cannot depend solely on the question whether he has
interest in the suit property. The question is whether the
right of a person may be affected if he is not added as a
party. Such right, however, will necessarily include an
enforceable legal right.”
11.In this case, it is certain that the interest of the revision petitioner
would be directly affected by an partition effected over the properties in which
he, as a settlee, has obtained title.
12.The learned II Additional District Judge appears to have brushed
away the said application and rejected the same and passed a decree in the suit
on 03.01.2020 and then found a reason for such rejection by stating that the
suit itself had been disposed of and therefore the application is not
maintainable.
http://www.judis.nic.in 13.The revision petition has been filed against that particular order.
CRP(PD)No.1405 of 2021
14.It is the grievance expressed by Mr.S.Kaithaimalai Kumaran, learned
counsel that subsequently, the decree had also been forwarded to the
jurisdictional Sub Registrar Office and it was also registered. But, the right
which the revision petitioner herein claims to have owing to the Settlement
Deed, cannot be just brushed away.
15.Therefore, I would allow the revision petition and direct the learned II
Additional District Judge, to take the application on record and number the
same if it is otherwise in order and then issue notice to the respondents,
naturally the plaintiffs and defendants in the suit and examine whether the
present petitioner has made out a reasonable case to be impleaded.
16.A specific ground has been raised in the Civil Revision Petition
assailing fraud on the part of the plaintiff and the defendants. Naturally, a duty
cast on the learned II Additional District Judge, when such an allegation is
imputed on the judicial proceedings, to examine such imputation and if it is
necessary, pass a Judicial Order on the same. Fraud vitiates any solemn
proceedings.
http://www.judis.nic.in 17.Therefore, the Civil Revision petition is allowed with a direction to
CRP(PD)No.1405 of 2021
the learned II Additional District Judge at Erode to number the Interlocutory
Application if it is otherwise in order, and issue notice and proceed in the
manner known to law. Consequently, the connected miscellaneous petition is
also closed. No order as to costs.
23.07.2021
Index:Yes/No
Internet:Yes/No
ssi
To
1.The II Additional District Court,
Erode.
http://www.judis.nic.in
CRP(PD)No.1405 of 2021
C.V.KARTHIKEYAN, J.
ssi
CRP(PD)No.1405 of 2021
and
CMP No.10926 of 2021
23.07.2021
http://www.judis.nic.in
