Madras High Court
Chandrasekaran vs Kaja Muhaideen on 27 September, 2023
C.R.P.(MD)No.1815 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.1815 of 2018
and C.M.P.(MD)No.7937 of 2018
1.Chandrasekaran
2.Sthanunathan ... Petitioners 1 &2 /Respondents 2&3/
Plaintiffs 2& 3
Vs.
1.Kaja Muhaideen
2.Abdul Kadher
3.Sheik Mansur
4.Ahamed Meeran
5.Kaja Maideen Bathu
6.Seyed Muhammed
7.Jaber Alienating
8.Sulthan Beevi
9.Ahammed Meeral
10.Thowlath
11.Seyed Tameem
12.Jameen Beevi
13.Seyed Ahamed
14.Pitchandi
15.D.John Joseph ... Respondents 11 to 15 / Respondents 1 to 8/
Defendants 1 to 5
1/12
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1815 of 2018
16.Dharmambal
... 16th Respondent / 1st Respondent /
1st Plaintiff
Prayer: This Civil Revision Petition is filed Article 227 of the
Constitution of India, against the order dated 27.02.2018 in allowing
the impleading application in I.A.No.1764 of 2017 in O.S.No.501 of
2013 on the file of the Principal District Munsif, Tirunelveli.
For Petitioners : Mr.N.Vallinayagam, Senior Counsel
for Mr.D.Nallathambi
For Respondent : Mr.K.P.NarayanaKumar for R1 to R10
: No appearance for R11 to R16
ORDER
The revision petitioners herein are the respondents 2&3/
plaintiffs 2& 3 and the respondents 1 to 10 / proposed parties,
respondents 11 to 15 are the defendants 1 to 5 and the 16th respondent
herein is the first plaintiff before the Court below.
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C.R.P.(MD)No.1815 of 2018
2. The respondents 1 to 10 have filed a Memo, dated
21.08.2023, stating that as on date, no original defendants are alive.
However, the said factum was objected by the petitioner herein. At the
same time, they admitted the death of respondents 11 to 14, viz.,
defendants 1 to 4. They would further submit that no notice is required
to be taken as the plaintiff's right is right in personam and therefore,
contended that there is no necessity for impleading their legal heir. The
said statement is recorded. However, the petitioners disputed the death
of the fifth defendant.
3. Therefore, in view of the memo and also upon the ground
that the real contesting parties in the Civil Revision Petition are only the
respondents 1 to 10, this Court proceeds to dispose of the Civil
Revision Petition.
4. For the sake of convenience, the parties are referred to
according to their litigative status before the trial Court.
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C.R.P.(MD)No.1815 of 2018
5. The learned Senior Counsel for the revision petitioners
would submit that the respondents 1 to 10 are neither necessary nor
proper parties. Therefore, the order passed by the Court below,
impleading them as the defendants 6 to 15 is erroneous. The learned
Senior Counsel has also relied upon the judgment of the Hon'ble
Supreme Court reported in 2020-3-13-SCC 773 (Gurmit Singh Bhatia
V. Kiran Kant Robinson) and AIR-1985-MP-199 (Sunil V.
Satyanarayan Dubey)
6. Per contra, the learned counsel for the respondents 1 to 10
would contend that the plaintiff has not impleaded proper and necessary
party and has impleaded the respondents 11 to 15 herein as the
defendants in the suit and that all the original defendants have died. It is
also the submission of the learned counsel for the respondent that in
respect of the suit property, the patta has been issued in the name of the
respondents. Therefore, the order of the Court below is well merited.
The learned counsel for the respondent would rely upon the judgment
reported in AIR-2009-SCC -2033 (Anathula Sudhakar V. P.Buchi
Reddy) and prayed to consider the same.
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C.R.P.(MD)No.1815 of 2018
7. I have given my anxious consideration on either side
submission.
8. The learned Senior Counsel would submit that, originally,
they have filed the suit against the defendants 1 to 5 for the relief of
permanent injunction, based upon a specific cause of action, and would
contend that the relief of permanent injunction is a right in personam
and therefore, in such suit, these respondents 1 to 10 are not at all
necessary and proper parties.
9. However, while perusing the contention put forth by the
respondents 1 to 10, they would state that the plaintiff's father and one
Ramanatha Pandijiear, by hatching criminal conspiracy and has created
a lease deed and also obtained patta. The same will not bind this
respondent and that they are also having patta in their name for the suit
property.
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C.R.P.(MD)No.1815 of 2018
10. At this juncture, the learned counsel for the petitioners
herein would invite the attention of this Court in respect of their counter
statement filed before the trial Court. The same has referred to W.P.
(MD)No.2248 of 2014 and W.A.(MD)No.1207 of 2015 and would
contend that the alleged patta issued in the name of the respondents 1 to
10 has been subsequently cancelled, by virtue of the order passed in the
above proceedings. As such, contended that there is no patta in favour
of the respondents 1 to 10.
11. However, the learned counsel for the respondents 1 to 10
would invite the attention of the pleading in the plaint and would
submit that even according to the plaint pleadings, the plaintiff referred
that the suit property is in the lawful possession and enjoyment of the
plaintiff and some other landlords, and that those some other landlords
are the respondents 1 to 10, therefore, he would submit that they are the
proper and necessary parties to the proceedings.
12. The learned Senior Counsel of the respondent would
submit that the lawful possession and the exclusive physical possession
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C.R.P.(MD)No.1815 of 2018
of the property are two distinctive possession. In a suit for injunction,
what we require is physical possession. It is also the submission of the
learned Senior Counsel that the plaintiff being a dominus litis, they are
entitled to choose the defendant.
13. In this regard, this Court would like to refer the judgment
of the Hon'ble Supreme Court reported in 2020-3-13-SCC 773 (Gurmit
Singh Bhatia V. Kiran Kant Robinson), in which, the Hon'ble Supreme
Court has followed the judgment reported in 2005-6-SCC-733 (Kasturi
V. Iyyamperumal), and held as follows:-
“The question of jurisdiction of the Court to
invoke Order 1 Rule 10 C.P.C to add a party, who is not
made a party in the suit by the plaintiff shall not arise
unless a party proposed to be added has direct and legal
interest in the controversy involved in the suit. In a suit
for specific performance the first test that can be
formulated is, to determine whether a party is a
necessary party. There must be a right to the same relief
against the party claiming to be a necessary party,
relating to the same subject matter involved in the
proceedings for specific performance of contract to sell.
A proper party is a party whose presence is necessary to
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C.R.P.(MD)No.1815 of 2018
adjudicate the controversy involved in the suit. The
parties claiming an independent title and possession
adverse tot he title of the vendor and not on the basis of
the contract, are not proper parties and if such party is
impleaded in the suit, the scope of the suit for specific
performance shall be enlarged to a suit for title and
possession, which is impermissible. A third party or a
stranger cannot be added in a suit for specific
performance, merely in order to find out who is in
possession of the contracted property or to avoid
multiplicity of the suits. A third party or a stranger to a
contract cannot be added so as to convert a suit of one
character into a suit of different character.”
(Emphasis supplied by this Court)
14. From the above ratio, it is clear that if an impleading of
party enlarge the scope of the suit, then such party are not necessary and
proper parties. In this case, the plaintiff has moved a suit for injunction
in respect of the interference made by the respondents 11 to 15. As
rightly submitted by the learned Senior Counsel, if the respondents 1 to
10 are added as the parties to the suit, then there is every likelyhood for
enlargement of the scope of the suit from the suit for injunction to a
suit for declaration and injunction. If the respondents 1 to 10 are added,
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C.R.P.(MD)No.1815 of 2018
the main issue as to whether the respondents 11 to 15 interfered the
possession of the property or not will be eclipsed and would be
converted into an issue, as to who is the owner of the suit property.
15. At this juncture, it is pertinent to mention that, if really,
the respondents 1 to 10 have got any right over the suit property, they
can very well institute a separate suit against the petitioner herein.
16. It is pertinent to mention her that the word "dominus litis"
is a latin phrase that means master of the suit, and therefore, when the
plaintiff being the master of the suit wants to adjudicate only against the
alleged interference made by the original defendants 1 to 5, he cannot
be compelled to implead the other respondents 1 to 10, who disputed
the plaintiff absolute title, to adjudicate upon their rival claim.
17. More interestingly, the very cause of action for filing the
impleading application has arisen only based upon the patta issued in
the name of the respondents 1 to 10 herein. According to the
submissions of the learned Senior Counsel, such patta was subsequently
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C.R.P.(MD)No.1815 of 2018
cancelled by way of the order passed by this Court in W.P.(MD)No.
2248 of 2014, dated 19.03.2014 and W.A.(MD)No.1207 of 2015, dated
18.11.2015. This contention was not seriously objected by the
respondents 1 to 10 herein. Therefore, as rightly submitted by the
learned Senior Counsel, even otherwise, the petitioner has no right to
file such an application.
18. The learned Senior Counsel would rely upon the judgment
reported in AIR-1985-MP-199 (Sunil V. Satyanarayan Dubey) (cited
supra) and would contend that in a suit based on a contract of tenancy,
the question of title cannot be gone into. Even in the case in hand, if we
implead the respondents 1 to 10, there is a possibility to decide the
question of title in an injunction suit filed against the specific
individuals, who have interfered with the possession of the plaintiff.
Therefore, this Court hod that the respondents 1 to 10 herein are not a
proper and necessary party to the suit. As such, the order of their
impleadment is liable to be set aside. Therefore, this Court is of the
view that the order passed by the Court below is liable to be interfered
with as the same is contrary to the settled position of law.
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C.R.P.(MD)No.1815 of 2018
19. In the result, the instant Civil Revision Petition stands
allowed, thereby the order passed in I.A.No.1764 of 2017 is set aside.
There shall be no order as to costs. Consequently, connected
Miscellaneous Petition is closed.
27.09.2023
NCC : Yes/No
Index :Yes/No
Ls
To
1.The Principal District Munsif,
Tirunelveli.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P.(MD)No.1815 of 2018
C.KUMARAPPAN.,J.
Ls
Order made in
C.R.P(MD)No.1815 of 2018
27.09.2023
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