Madras High Court
R.Neela (Died) vs S.Sulochana on 25 October, 2021
C.R.P.(PD).No.2921 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD).No.2921 of 2017
and
C.M.P.No.13784 of 2017
1.R.Neela (died)
2.M.Murugan
3.M.Parimala
4.R.Sabarinathan
5.T.Meenakshi .. Petitioners
(Petitioners 3 & 4 brought on record as LRs of the
deceased 1st petitioner viz., R.Neela and 2nd respondent
viz., T.Meenakshi transposed as 5th petitioner vide
order of this Court dated 01.10.2021 made in C.M.P.
No.15186 of 2021 in C.R.P.(PD).No.2921 of 2017)
Vs.
S.Sulochana .. Respondent
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and decretal order dated 04.07.2017
made in I.A.No.164 of 2017 in O.S.No.143 of 2013 on the file of the
Additional District Munsif Court, Chengam, Tiruvannamalai District.
1/8
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2921 of 2017
For Petitioners : Mr.A.Srinivasan
For Respondent : Ms.S.Sathiya
for Mr.P.S.Kothandaraman
ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
This Civil Revision Petition is filed to set aside the fair and decretal
order dated 04.07.2017 made in I.A.No.164 of 2017 in O.S.No.143 of 2013
on the file of the Additional District Munsif Court, Chengam, Tiruvannamalai
District.
2.The petitioners 1 & 2 are defendants and the respondent is the
plaintiff in the suit in O.S.No.143 of 2013. The respondent filed the said suit
for partition against the petitioners 1 & 2. The petitioners 1& 2 filed written
statement on 22.10.2013. Trial commenced. When the suit was posted for
cross examination of P.W.1, the respondent filed I.A.No.164 of 2017 to
implead the 5th petitioner herein as 3rd defendant in the suit. According to
respondent, the suit property is an ancestral property and petitioners 1 & 2
and respondent are brother and sisters and they have equal share after death
of their father viz., Munusamy Udayar. The 2nd petitioner married elder
daughter of 1st petitioner. Without knowledge of respondent, the 2nd petitioner
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C.R.P.(PD).No.2921 of 2017
constructed a house on the northern side of the suit property. Further, the 2 nd
petitioner sold 3 cents of suit property to the 5th petitioner, who is the younger
daughter of 1st petitioner and sister-in-law of 2nd petitioner. Hence, the 5th
petitioner is necessary party to decide the issue in the suit. The 2 nd petitioner
filed counter affidavit and opposed the said application. According to
petitioners, the sale in favour of the 5th petitioner was by sale deed dated
08.11.2010. The respondent knew about the sale and she made averments in
the plaint. The petitioners 1 & 2 also filed written statement on 22.10.2013,
stating about the sale in favour of the 5th petitioner and construction of house
by 5th petitioner and the fact that she is living there. The respondent did not
implead the 5th petitioner at the time of filing of the suit as well as within
three years from the date of filing of the written statement. Only after
commencement of Trial, the respondent filed I.A. and prayed for dismissal of
I.A.No.164 of 2017.
3.The learned Judge considering the averments in the affidavit, counter
affidavit and provisions of Order I Rule 10(2), held that 5th petitioner is
necessary to decide the issue in the suit and a necessary party can be
impleaded at any stage of the suit and allowed the I.A.No.164 of 2017, but
ordered cost of Rs.500/- (Rupees Five Hundred Only) for the delay in filing
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C.R.P.(PD).No.2921 of 2017
the said I.A.No.164 of 2017.
4.Against the said order dated 04.07.2017 made in I.A.No.164 of 2017,
the petitioners 1 & 2 have come out with the present Civil Revision Petition.
5.Pending Civil Revision Petition, the 1st petitioner died and petitioners
3 & 4 were brought on record as LRs of the deceased 1st petitioner viz.,
R.Neela and 2nd respondent viz., T.Meenakshi transposed as 5th petitioner
vide order of this Court dated 01.10.2021 made in C.M.P. No.15186 of 2021
in C.R.P.(PD).No.2921 of 2017.
6.The learned counsel appearing for the petitioners reiterated the
averments made in the counter affidavit and further submitted that the learned
Judge misinterpreted the provisions of order I Rule 10 (2) C.P.C. The
respondent has filed the said I.A.No.164 of 2017 belatedly, which she ought
to have filed within three years from the date of filing the written statement
and submitted that the claim of the respondent is barred by limitation and
prayed for setting aside the order of the learned Judge and allowing the Civil
Revision Petition. In support of his contention, the learned counsel appearing
for the petitioner relied on the following judgments:
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C.R.P.(PD).No.2921 of 2017
(i)Judgment of Hon'ble Allahabad High Court reported in AIR 1984
Allahabad 143, [Kisan Co-operative Sugar Factory Ltd., Vs. M/s. Rajendra
Paper Mills and others];
(ii)Order of this Court reported in (2005) 4 MLJ 4,
[Manonmaniammal and others Vs. Dr.Duraikannau and others] and
(iii)Judgment of the Hon'ble Apex Court reported in (2010) 7 SCC
417, [Mumbai International Airport Pvt. Ltd., Vs. Regency Convention
Centre and Hotels Pvt. Ltd., and others].
7.The learned counsel appearing for the respondent made averments in
support of the order of the learned Judge and submitted that suit filed by the
respondent is for partition and hence, implementation in a suit for partition
cannot come to an end till the final decree is passed. The learned Judge
considered the provisions of Order I Rule 10 (2) and permitted the respondent
to implead the 5th petitioner as 3rd defendant in the suit and relied on the order
of this Court reported in 1970 (1) MLJ 243, [Swayamprakasam alias
Chidambaranathan Vs. R.Vijayarangam] and prayed for dismissal of the
Civil Revision Petition.
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C.R.P.(PD).No.2921 of 2017
8.Heard the learned counsel appearing for the petitioners as well as the
learned counsel appearing for the respondent and perused the entire materials
on record.
9.From the materials on record, it is seen that the petitioners 1 & 2 and
respondent are brother and sisters. The respondent has filed the suit for
partition claiming share in the suit property on the ground that suit property is
ancestral property after death of their father viz., Munusamy Udayar, the
petitioners 1 & 2 and the respondent have equal share. The 2 nd petitioner sold
the portion of the suit property measuring 3 cents to the 5th petitioner, who is
the younger daughter of 1st petitioner. In a suit for partition, all the persons
interested in the properties must be made as parties. As per the provisions of
Order I Rule 10 (2) C.P.C., the Court has power to implead a necessary party
and strike off unnecessary party at any stage of the suit.
10.From the materials on record it is seen that the 2nd petitioner sold a
portion of the suit property measuring 3 cents to the 5th petitioner. In view of
the said sale, the 5th petitioner is a necessary party to decide the issue of
partition, especially if the respondent succeeds in the suit with regard to
allotment of share to the parties. The learned Judge considering the materials
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C.R.P.(PD).No.2921 of 2017
placed before him, held that 5th petitioner is necessary party to decide the
issue and by following the principles laid down in Order I Rule 10 (2) of
C.P.C., allowed the I.A.No.164 of 2017 and impleaded the 5th petitioner as 3rd
defendant in the suit. In view of the fact that respondent filed the said
I.A.No.164 of 2017 after delay, the learned Judge imposed cost of Rs.500/-
(Rupees Five Hundred Only) to the respondent. There is no error or
irregularity in the order of the learned Judge warranting interference by this
Court.
11.In the result, this Civil Revision Petition is dismissed.
Consequently, the connected Miscellaneous Petition is closed. No costs.
25.10.2021
krk
Index : Yes / No
Internet : Yes / No
To
The learned Additional District Munsif,
Chengam,
Tiruvannamalai District.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2921 of 2017
V.M.VELUMANI, J.
krk
C.R.P.(PD).No.2921 of 2017
25.10.2021
https://www.mhc.tn.gov.in/judis
