Madras High Court
K.Dharmar vs Ganesan on 31 July, 2023
C.R.P.(MD)Nos.11, 12 and 13 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 31.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)Nos.11, 12 and 13 of 2018
and
C.M.P.(MD)No.73 of 2018
C.R.P.(MD)No.11 of 2018
1.K.Dharmar
2.Manjula ... Petitioners/ Respondents 8 & 9/ Defendants 8 & 9
Vs.
1.Ganesan
2.Palanichamy ... Respondents 1&2 / Petitioners/ Plaintiffs
Karuppayee (Died)
3.Muthu
4.Alamelu
5.Saraswathi
6.Murugan
7.Sivalingam
8.Ramayee ... Respondents 3to 8 /Respondents 2 to 7/
Defendants 2 to 7
9.M.Radhakrishnan ... 9th Respondent / 10th Respondent /
10th Defendant
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India, against the fair and decretal order, dated 12.01.2017 in I.A.No.
1394 of 2016, in O.S.No.181 of 2004, on the file of the Additional District
Munsif, Dindigul.
C.R.P.(MD)No.12 of 2018
1.K.Dharmar
2.Manjula ... Petitioners/ Petitioners / Defendants 8 & 9
Vs.
1.Ganesan
2.Palanichamy ... Respondents / Respondents/ Plaintiffs
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India, to issue suitable direction to the trial Court to number the
unnumbered I.A.No.SR3435 of 2017, in O.S.No.181 of 2004, on the file of
the Additional District Munsif, Dindigul.
C.R.P.(MD)No.13 of 2018
1.K.Dharmar
2.Manjula ... Petitioners/ Petitioners / Defendants 8 & 9
Vs.
1.Ganesan
2.Palanichamy ... Respondents / Respondents/ Plaintiffs
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India, against the fair and decretal order, dated 01.11.2017 in I.A.No.864
of 2017, in O.S.No.181 of 2004, on the file of the Additional District
Munsif, Dindigul.
(In all C.R.Ps.)
For Petitioners : Mr.H.Lakshmi Shankar
For Respondents : Mr.N.Manivel for R1 & R2
COMMON ORDER
C.R.P.(MD)No.11 of 2018 has been filed against the order, dated
12.01.2017 in I.A.No.1394 of 2016, in O.S.No.181 of 2004, in an
application filed under Order 6 Rule 17 of C.P.C., on the file of the
Additional District Munsif, Dindigul.
2. C.R.P.(MD)No.12 of 2018 has been filed to issue suitable
direction to the trial Court to number the unnumbered I.A.No.SR3435 of
2017, in O.S.No.181 of 2004, filed to strike out the suit schedule 1 and 2
property from the plaint, pending on the file of the Additional District
Munsif, Dindigul.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
3. C.R.P.(MD)No.13 of 2018 has been filed against the order,
dated 01.11.2017 in I.A.No.864 of 2017, in O.S.No.181 of 2004, in an
application filed under Order 1 Rule 10 C.P.C., on the file of the Additional
District Munsif, Dindigul.
4. In C.R.P.(MD)Nos.11, 12 and 13 of 2018, the revision
petitioners herein are the defendants 8 and 9, the respondents 1 and 2
herein are the plaintiffs before the trial Court. In C.R.P.(MD)No.11 of 2018,
the respondents 3 to 8 are the defendants 2 to 7 and the 9th respondent is the
10th defendant before the trial Court.
5. Since all the Civil Revision Petitions are intertwined one
arriving from same suit, all the Civil Revision Petitions are taken for
common disposal.
6. For the sake of convenience, the parties are referred according
to their litigative status before the trial Court.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
CRP(MD)No.11 of 2018
7. The short facts, which give rise to the instant Revision
Petitions, are that:
The respondents 1 and 2 / plaintiffs have filed a suit for the relief
of partition and for declaration. According to the plaintiffs, one
Kuttiyappan is the father of Kamatchi, Karuppayee and Ramayee.
Karuppayee is the first defendant and Ramayi is the seventh defendant in
the suit. The plaintiffs and the tenth defendant are the legal heirs of the said
deceased Kamatchi. As per the plaint averments, the first defendant -(late)
Karuppayee and her husband- Andiappan by playing fraud and
misrepresentation, has obtained sale deed in their favour, in respect of the
first and second items of the suit property, vide sale deed, dated
13.02.1962, and that after the demise of the first defendant's husband-
Andiappan, she has executed a sale deed in favour of the defendants 8 and
9 along with her legal heirs, who are defendants 2 to 6. Therefore, the
plaintiffs submit that the sale deed stands in the name of the defendants 8
and 9, which is sham and nominal. Therefore, they sought for the relief of
declaration, to declare the sale deed stands in the name of the defendants 8
and 9 as sham and nominal and void.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
8. While that being so, it appears that the plaintiffs have filed a
memo on 03.11.2016, exonerating the defendants 8 and 9 from the suit.
After that, they filed an application for amendment, to remove the
defendants 8 and 9 from the array of the parties, and that they wanted
decree only against the other defendants, who were already set exparte.
9. The petitioners have also contended that if the defendants 8
and 9 wanted to prove their title, they could have separately file a suit for
declaration.
10. The said application was stoutly contested by the defendants
8 and 9. It is their submission that having party to the proceedings for
almost 12 years and have been effectively contesting the case, the very
prayer to delete them from the array of the parties, that too when the suit is
in part heard stage, is only with a dubious motive, therefore, cannot be
accepted at all and hence, prayed to dismiss the application.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
11. However, the learned trial Judge has allowed the application
by relying Order 1 Rule 10 (2) C.P.C, and further observed in the order that
in a suit for partition between the co-sharers, the subsequent purchasers can
not be a necessary parties, however, can work out their remedy in the final
decree application.
12. Aggrieved with the order of the learned trial Judge, the
defendants 8 and 9 have filed the revision petition in C.R.P.(MD)No.11 of
13. The learned counsel for the revision petitioners would submit
that while objecting the amendment application filed by the respondents 1
and 2, this petitioner has also filed an application for impleading
themselves as the parties to the suit. Therefore, he would submit that when
the defendants 8 and 9 were already parties to the suit and filed an
application for impleadment the order passed in amendment application
though consequential in nature, cannot be allowed, in view of the
subsequent development of filing impleading application by this petitioners
and hence, prayed to allow this petition.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
14. In this regard, the learned counsel for the petitioners herein
would rely upon the judgment of the Hon'ble Supreme Court reported in
2010-7-SCC-417 (Mumbai International Airport Pvt. Ltd., V. Regency
Convention Centre and Hotels Pvt. Ltd.). The relevant paragraph reads as
follows:-
“8. The general rule in regard to impleadment of
parties is that the plaintiff in a suit, being dominus litis, may
choose the persons against whom he wishes to litigate and
cannot be compelled to sue a person against whom he does
not seek any relief. Consequently, a person who is not a party
has no right to be impleaded against the wishes of the
plaintiff. But this general rule is subject to the provisions of
Order I Rule 10(2) of Code of Civil Procedure (`Code' for
short), which provides for impleadment of proper or
necessary parties. The said sub-rule is extracted below:
"Court may strike out or add parties.
(2) The Court may at any stage of the proceedings,
either upon or without the application of either party, and on
such terms as may appear to the Court to be just, order that
the name of any party improperly joined, whether as plaintiff
or defendant, be struck out, and that the name of any person
who ought to have been joined, whether as plaintiff or
defendant, or whose presence before the Court may be
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions
involved in the suit, be added."
The said provision makes it clear that a court may,
at any stage of the proceedings (including suits for specific
performance), either upon or even without any application,
and on such terms as may appear to it to be just, direct that
any of the following persons may be added as a party: (a)
any person who ought to have been joined as plaintiff or
defendant, but not added; or (b) any person whose presence
before the court may be necessary in order to enable the
court to effectively and completely adjudicate upon and settle
the question involved in the suit. In short, the court is given
the discretion to add as a party, any person who is found to
be a necessary party or proper party. A `necessary party' is a
person who ought to have been joined as a party and in
whose absence no effective decree could be passed at all by
the Court. If a `necessary party' is not impleaded, the suit
itself is liable to be dismissed. A `proper party' is a party
who, though not a necessary party, is a person whose
presence would enable the court to completely, effectively
and adequately adjudicate upon all matters in disputes in the
suit, though he need not be a person in favour of or against
whom the decree is to be made. If a person is not found to be
a proper or necessary party, the court has no jurisdiction to
implead him, against the wishes of the plaintiff. The fact that
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
a person is likely to secure a right/interest in a suit property,
after the suit is decided against the plaintiff, will not make
such person a necessary party or a proper party to the suit
for specific performance.”
15. He would also rely upon the judgment of this Court reported
in 1918-7-LW-234 (Vaddadi Sannamma V. Koduganti Radhabhayi). The
relevant paragraph reads as follows:-
“1. I am clearly of opinion that, when a party has
been properly impleaded as one of the defendants in a case
and the case as against him would have proceeded to
judgment but for the fact that the plaintiff elected to abandon
part of his case and the suit was in consequence dismissed
as against this defendant, he is "a defendant, against whom
a suit has been dismissed," within the meaning of the
explanation to Section 47, Civil Procedure Code. The case
which came before the Court in Krishnappa Mudali v.
Periasami Mudali (1917) 32 M.L.J. 532, of a misjoinder of
causes of action and of the plaintiff being required to
proceed with one cause of action, only and the suit being
dismissed as against the defendants who had been joined in
respect of the other cause of action only, may possibly stand
on a different footing, as to hold that the cause of action
which the Court was prohibited from trying may be gone into
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
in execution by virtue of Section 47 goes far to defeat the
prohibition of joinder, and such a construction of S., 47
should therefore be avoided if it is possible to do so. As that
question is not before us, I express no opinion upon it, and
will only say that the proper course in these cases appears to
be for the Court to exercise the power which it now has
under Order 1, Rule 10(2) of ordering at any stage of the
proceedings, the name of a defendant improperly joined to
be struck out, instead of dismissing the suit as against him.
That will, as held by the Full Bench in Ramaswami Sastrulu
v. Kameswaramma (1900) I.L.R. 23 Mad. 361 : 10 M.L.J.
123, have the effect of taking him out of the operation of
Section 47, which ought not to apply to him seeing that he
has no real concern with the suit. I would answer the first
question in the affirmative.”
16. He would also rely upon the judgment of the High Court of
Bombay reported in 2003 - 0 - Supreme (Mah)-28 (Anil Dinmani
Shankar Joshi V. Chief Officer, Panvel Municipal Council). The relevant
paragraph reads as follows:-
“3. Order XXIII Rule 1 of the Code of Civil
Procedure permits the plaintiff at any time after the institution
of the suit to abandon the suit or abandon a part of the claim
in the suit against all or any of the defendants. No permission
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
of the Court is necessary for the plaintiff to unconditionally
abandon his claim or any part of his claim against all or one
or more of the defendants. Abandonment is complete as soon
as the plaintiff informs the Court. No order of the Court is
necessary though the Court often passes formal order
recording the abandonment. In this connection, reference may
be made to the decision of the Apex Court in Shiv Prasad v.
Durga Prasad wherein the Court observed in paragraph No.
12 of the Judgment as follows:
"Every applicant has a right to unconditionally
withdraw his application and his unilateral act in that behalf
is sufficient. No order of the Court is necessary permitting
him to withdraw the application. The Court may make a
formal order disposing of the application as withdraw but the
withdrawal is not dependent on the order of the Court. The
act of withdrawal is complete as soon as the applicant
intimates the Court that he withdraws the application."
4. In my opinion, what is said by the Apex Court in
respect of an application applies with equal force to the suit.
Every plaintiff has an unconditional right to withdraw his suit
unconditionally. The withdrawal would be complete as soon
as the plaintiff files a purshis of withdrawal. The Court may
pass a formal order recording the withdrawal and also make
an order regarding costs, but the withdrawal is not dependent
on the order of the Court. This could apply also where the
plaintiff seeks withdrawal of the suit against one or more of
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
the defendants and the withdrawal would be complete against
those defendants as soon as the plaintiff files an
application/purshis for withdrawal. The Court may then
consider whether the suit survives against the other
defendants against whom suit is not withdrawn. If it comes to
the conclusion that the defendant or defendants against whom
the suit is withdrawn was or were necessary parties, the
Court would then be entitled to dismiss the suit against all on
the ground of non-joinder of the necessary parties. But the
Court cannot refuse to allow the withdrawal on the ground
that the person against whom the suit is sought to be
withdrawn is a necessary party.”
17. Per contra, the learned counsel for the respondent would
submit that when the petitioners herein/defendants 8 and 9 have already
been exonerated, the amendment which sought for is only consequential in
nature, and he would also submit that when the plaintiffs being a Dominos
litus, he has got every right to choose as to against whom, he seeks a relief.
In this regard, he would also rely upon the judgment of the High Court of
Karnataka, reported in 1988-2-KantLJ-387 (Parvathamma B.N. V.
B.M.Nagaraja Setty). The relevant paragraph reads as follows:-
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
“2. Without an amendment to the plaint that such a
sale is not binding on the plaintiffs, the purchaser does not
become a necessary party in a partition suit. It is also further
held that if the said Chandramma is a purchaser pendente lite
then that sale would not enure to her benefit on account of the
doctrine of lis pendente. Lokked at in any way she is not a
necessary party. Whether the properties sold to Chandramma
are part of the joint family properties is a question of fact to
be established, if it is disputed. If there is no amendment to
the plaint in regard to certain sales not binding on the
plaintiffs then that amendment should be carried out first
before the affected parties are impleaded ”
18. He also rely upon another judgment of this Court reported in
1999-III-CTC-335 (S.Ramaswamy V. The State of Tamil Nadu rep. its
Collector). The relevant paragraph reads as follows:-
“17. It has not been shown in the present case as
to how the respondents would be affected by the on-
impleading of the second respondent as a party. The
decision of the lower Court for the reasons already stated
cannot stand. It has also not been shown that the second
respondent had any legal interest in the subject matter of
the suit. It is not possible to hold that the second
respondent could be impleaded in the suit merely for the
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
purpose of enabling the first respondent State to see that
the suit is properly defended. As already observed, it is
upto the first respondent to utilize the services of the second
respondent and his officials and the records available in his
office to defend the suit. There could be absolutely no
objection to this course being adopted for proper defence of
the suit.”
19. I have given my anxious consideration to the either side
submission.
20. It is an admitted fact that the respondents 1 to 7 and 10 were
already set exparte. The only contesting defendants are the petitioners
herein / defendants 8 and 9. According to the facts of the case, the suit
schedule property 1 and 2, which the petitioners / defendants 8 and 9
purchased, was originally owned by one Kuttiyappan. According to the
plaint averments, after the demise of Kuttiyappan, his property devolved
upon his three daughters, namely, Karuppayee and Ramayee, who are
parties to the suit as defendants 1 and 7 and the another daughter –
Kamatchi, who is pre-deceased. After the demise of Kamatchi, her legal
heirs, viz., Ganesan and Palanichamy have filed the suit for partition, and
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
their brother Radhakrishnan was arrayed as the 10th defendant. More
curiously, in respect of three suit scheduled property, schedule 1 and 2
belong to the petitioners herein. The sum and substance of the above
discussion is that the only contesting parties in the suit are the persons
having interest over the suit property, namely, the petitioners herein.
21. While this being so, it appears that the plaintiffs have filed a
memo exonerating the petitioners herein, vide memo, dated 03.11.2016.
After a period of 12 years, that too when the suit is in part heard stage. The
reason assigned by the plaintiffs for exoneration is mentioned in the
affidavit filed in I.A.No.394 of 2016. Wherein the plaintiffs stated that, the
petitioners herein can get a declaration separately in respect of sale deed,
which covers suit schedule 1 and 2 property.
22. At this juncture, to understand the whole gamut of issue, this
Court would like to extract the prayer by the plaintiff sought in the plaint:
“1. ,e;j ek;gh; gpuhjpy; fz;Ls;s
nrhj;Jf;fspy; thjpfspd; 1/3 ghfj;ij 1-k; gpujpthjp
eakplh; ghh;j;J gphpj;J thjpfSf;F jdpj;j RthjPdk;
nfhLf;Fk;gbf;Fk;> Kjy; epiy jPh;g;ghiz
toq;Fk;gbf;Fk;>
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
2. mt;thW 1-k; gpujpthjp gpuhJ nrhj;Jf;fspy;
thjpfspd; 1/3 ghfj;ij gphpj;Jf; nfhLf;f kWf;Fk;
gl;rj;jpy; r%fk; Nfhh;l;lhuth;fs; fkprdh; xUtiu
epakpj;J nrhj;Jf;fis ghh;itapl;L thjpfSf;F jf;f
RthjPdk; nfhLf;fj;jf;fjha; igdy; bf;fphp gh];
nra;Ak;gbf;Fk;>
3. gpuhJ 1>2 nrhj;Jf;fspy; 1 Kjy; 6
gpujpthjpfs; 8> 9 gpujpthjpfSf;F 05.11.199-Mk; Njjpapy;
vOjpf; nfhLj;J ,Uf;Fk; fpiuag;gj;jpuk; thjpfspd;
ghfj;ij fl;Lg;gLj;jhJ Sham nominal void vd; bf;Nsh;
nra;Ak;gbf;Fk;>
4. gpuhJ 1>2 yf;f nrhj;Jf;fspy; 8> 9
gpujpthjpfs; ahnjhU Mf;fpukpg;Gk;>
jilAk;> ,ilQ;rYk; nra;ahjgbf;Fk; Nkw;gbahh;fs; kPJ
xU epue;ju cWj;Jf;fl;lis cj;juT toq;Fk;gbf;Fk;>
the 3rd and 4th Prayer were Exonerated as per the Memo filed
by the plaintiff on 03.11.2016.”
in which, in the impugned amendment, the prayer, in respect of 3 and 4,
viz., the validity, was prayed to be deleted. At this juncture, this Court
would like to mention that when the plaintiffs themselves impleaded them
as proper and necessary parties and conducted the suit for 12 years, all of
sudden exonerating them, however, claiming share over the very same
property which stands in the name of this petitioners/ defendants 8 & 9,
would only shows the dichotomy of the plaintiffs' / respondents' case.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
23. Another angle of the case is that when the suit schedule 1 and
2 property was purchased by the defendants 8 and 9 as early as on
05.11.1998, that too, from the parents of the defendants 2 to 7, based upon
the title flown from the sale deed, dated 13.02.1962, which stands in the
name of the first defendant and her husband – Andiappan, very strangely,
they sought for declaration only in respect of sale deed, dated 05.11.1998,
which stands in the name of defendants 8 and 9 and not against the parental
deed, dated 13.06.1962, which only probablise the tacit admission of the
plaintiffs over the sale deed of the year 1962.
24. Thus, the crest and trough of the above narration is that, when
the petitioners herein / defendants 8 & 9 are the owner of the suit schedule
1 & 2 property, even prior to the institution of the suit, in a subsequently
instituted partition suit, which challenge the sale deed of the petitioners /
defendants 8 & 9, executed by the other co-sharers, then naturally the
person, in whose name the property stands at the time of filing the suit for
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
partition would necessarily become necessary and proper party.
25. Here, even in the plaint, they referred about the earlier sale
deed, dated 05.11.1998, and that is why they sought for the relief rightly in
the plaint. However, taking advantage of the subsequent development,
when the defendants 1 to 7 and 10, did not contest and were, set exparte, to
avoid the defendants 8 and 9, who stoutly contested the case, has simply
exonerated them. But, they sustained the prayer for partition in respect of
the property stands in the name of defendants 8 and 9. Such conduct is
nothing, but, malafide. Because, in the event of passing of preliminary
decree, for any partition ignoring the petitioners herein, then, it would lead
to multiplicity of proceedings and their alleged right will be jeopardized.
Thus, this Court is inclined to allow the revision in C.R.P.(MD)No.11 of
2018, dismissing the amendment application, which entitled the plaintiffs
to remove these petitioners / defendants 8 and 9 from the array of party.
CRP(MD)No.13 of 2018
26. Since the C.R.P.(MD)No.11 of 2018 is allowed, wherein the
defendants 8 and 9 are necessary parties, the impleading petition filed by
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
the defendants 8 and 9 are also liable to be allowed by allowing the C.R.P.
(MD)No.13 of 2018.
CRP(MD)No.12 of 2018
27. This Court as per the order passed in C.R.P(MD)No.11 of
2018 and C.R.P.(MD)No.13 of 2018, retained the defendants 8 and 9, as
party to the suit. In view of the same, there is no necessity to strike out
schedule 1 and 2 of the suit property. Hence, CRP(MD)No.12 of 2018
is dismissed.
28. In the result, C.R.P.(MD)No.11 and 13 of 2018 are allowed
and C.R.P.(MD)No.12 of 2018 is dismissed. It is made clear that the
learned trial Judge is directed to proceed with the case without being
influenced with any of the observation made in these Civil Revision
Petitions, in respect of the merits of the case. No costs. Consequently,
connected Miscellaneous Petition is closed.
31.07.2023
NCC : Yes/No
Index :Yes/No
Ls
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
To
1.The Additional District Munsif,
Dindigul.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)Nos.11, 12 and 13 of 2018
C.KUMARAPPAN.,J.
Ls
C.R.P.(MD)Nos.11, 12 and 13 of 2018
31.07.2023
https://www.mhc.tn.gov.in/judis
