Madras High Court
Udhayarani vs Rajeswari on 25 January, 2022
C.R.P.(NPD) (MD) No.87 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(NPD) (MD) No.87 of 2022
and
C.M.P.(MD) No.416 of 2022
1.Udhayarani
2.Kanmani @ Rathi
3.Ramya .. Petitioners
-vs-
1.Rajeswari
2.Annakodi
3.Thenmozhi
4.Chitradevi
5.Anbukkarasi
6.Kanagaraj
7.Vallalathevan
8.Singam
9.Maranadu
10.Krishnan
11.Ramadevi
12.A.Kasirajan
13.Radhadevi
14.Baskaran .. Respondents
Prayer :- Petition filed under Section 115 Civil Procedure Code to call for
the records relating with the fair and executable order dated 08.12.2021
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C.R.P.(NPD) (MD) No.87 of 2022
made in I.A.No.725 of 2021 in I.A.No.571 of 2003 in O.S.No.33 of 2002
on the file of the District Munsif, Uthamapalayam and to set aside the
same.
For Petitioners : Mr.R.Suriya Narayanan
******
ORDER
Defendants 8 to 10, who are the legal representatives of the 6th
defendant, are the revision petitioners before this Court challenging the
dismissal of their application in I.A.No.725 of 2021 in I.A.No.571 of
2003 in O.S.No.33 of 2002 filed for impleading respondents 8 to 14
herein as proposed parties in the final decree proceedings. The learned
District Munsif, Uthamapalayam, dismissed the application by his order
dated 08.12.2021.
2. The brief facts, which have culminated in the filing of the
Civil Revision Petition, are as follows:-
2.1. The 1st respondent has filed O.S.No.33 of 2002 on the file of
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C.R.P.(NPD) (MD) No.87 of 2022
the learned District Munsif, Uthamapalayam, for partition and separate
possession of her 1/5th share in the suit schedule property. The above suit
was decreed ex-parte vide judgment and decree dated 25.02.2003. The
plaintiff had thereafter, filed final decree proceedings in I.A.No.571 of
2003. Pending the final decree proceedings, the 6th defendant Ayyasamy
passed away and his legal representatives were brought on record as
defendants 8 to 10. Thereafter, defendants 8 to 10 have taken out an
application in I.A.No.725 of 2021 for impleading respondents 8 to 14 as
defendants 8 to 14 in the final decree proceedings.
2.2. In the affidavit filed in support of the above application, the
revision petitioners would submit that various portions of the property
had been sold to respondents 8 to 14 on various dates and therefore, their
presence in the final decree proceedings was essential, as they were
necessary and proper parties to the proceedings. The revision petitioners
would state that once they are made parties to the proceedings, it would
help in equitable partition.
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C.R.P.(NPD) (MD) No.87 of 2022
3. The 1st respondent/plaintiff had filed a written statement
contending that the alienations after the filing of the suit for partition
were all hit by lis pendens. Further, the partition deed dated 09.03.1994,
which was relied upon by the revision petitioners, is a void document
and no rights would flow from the same. Further, the plaintiff, being the
dominus litis, has instituted the suit against the other sharers. Therefore,
the presence of the proposed respondents was not necessary.
4. The 8th respondent had objected to being impleaded as party
to the proceedings. That apart, it was also contended that the 9th
respondent had died on 19.06.2009 itself. Therefore, the 8th respondent
had prayed for dismissal of the impleading application. The other
proposed parties had not filed a counter. He had also prayed that
partition should be effected without causing any harm to the shares of
respondents 10, 11, 13 and 14.
5. The learned District Munsif, Uthamapalayam, after hearing
the arguments on both sides, and on perusing the records, came to the
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C.R.P.(NPD) (MD) No.87 of 2022
conclusion that the impleading application for final decree proceedings
was not maintainable and further, it appears to be an attempt to protract
the proceedings. The learned Judge had observed that the father of the
petitioners, who had been impleaded as the legal representatives of the 6th
defendant, had chosen not to participate in the preliminary decree and
further, had not brought the factum of the sale to the knowledge of the
Court and further, the Advocate Commissioner had already inspected the
property along with the Surveyor and filed his report. The learned Judge
has also observed that no steps had been taken by the proposed parties to
have themselves impleaded in the proceedings and it is only respondents
8 to 10, who have evinced interest in the same. The learned Judge also
relied upon the counter of the proposed parties, wherein it has been
stated that the 8th respondent was not interested in being impleaded and
further, the 9th respondent had passed away. With these observations, the
application was dismissed. Challenging the same, the revision
petitioners are before this Court.
6. Heard the learned counsel for the petitioners.
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C.R.P.(NPD) (MD) No.87 of 2022
7. The revision petitioners are the legal representatives of the
deceased 6th defendant. The 6th defendant, who has been served summons
in the suit had remained ex-parte and had not contested the suit. Even in
the final decree proceedings, he had not filed a counter and pending
proceedings, he had passed away. Thereafter, his legal representatives
were brought on record and it is these legal representatives, who have
taken out this application at this stage.
8. The proposed parties, who according to the revision
petitioners are the purchasers of the property have not taken any steps to
implead themselves in the proceedings not only that one of the proposed
parties has gone to the extent of stating that he is not interested in being
impleaded in the proceedings. In these circumstances, it is surprising
that the revision petitioners herein appear to be keen on impleading the
proposed parties. The finding regarding the necessity of impleading the
proposed parties as discussed by the trial Judge is correct and this Court
does not propose to re-appreciate the finding and the order dated
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C.R.P.(NPD) (MD) No.87 of 2022
08.12.2021 in I.A.No.725 of 2021 in I.A.No.571 of 2003 in O.S.No.33 of
2002 stands confirmed.
9. Consequently, the Civil Revision Petition stands dismissed.
No costs. Connected miscellaneous petition is closed.
25.01.2022
Index : Yes/No
Speaking/Non-Speaking Order
abr
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 District Munsif, Uthamapalayam.
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C.R.P.(NPD) (MD) No.87 of 2022
P.T.ASHA, J.
abr
C.R.P.(NPD) (MD) No.87 of 2022
Dated: 25.01.2022
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