Firm of Mahadeva Rice and Oil Mills and Others vs Chennimalai Goundar

(1) The petitioners in both the civil revision petitions are the same. The petitioners were the co-owners of a rice-mill known as Mahadeva Rice and

Oil Mills, along with one Palaniappa. The said Palaniappa sold his moiety of his share to the respondent. The respondent alleged that he is a co-

sharer in the said mills and on that basis filed O.S. No. 164 of 1963 on the file of the Court of the Subordinate Judge, Erode, for a partition of the

mills and for separate possession of his share. The petitioners filed their written statement contending inter alia that the mills is a partnership

property and that a suit for partition is not maintainable, during the continuance of the partnership. Whilst this suit was pending, the petitioners filed

a suit O.S. No. 520 of 1963 in the District Munsif''s Court, Erode, against the respondent and prayed for an injunction restraining the respondent

from trespassing into the rice-mill premises and interfering with the business of the petitioners. The suit was transferred to the Subordinate Judge''s

Court, Erode, and now bears O.S. No. 151 of 1964. After the pleadings in both the suits were complete, the respondent took out an application

in each of the suits pending in the Sub-Court, Erode, for impleading his vendor Palaniappa Chettiar as a party to both the suits. His contention was

that his vendor was both a necessary and a proper party to the suit having regard to the allegations in the pleadings. This was resisted by the

petitioners. The lower Court allowed the application and ordered that Palaniappa Chettiar has to be impleaded though not as a necessary party,

but as a proper party under O. 1, R. 10, Civil P. C. The two civil revision petitions are directed against each of such orders in the two suits.

(2) A proper party is one without whose presence the question in the suit cannot be completely and effectually adjudicated upon. If he is neither a

necessary party nor a proper party, the Court has no jurisdiction to add him as a party. Now that the lower Court has held that the vendor of the

plaintiff is not a necessary party, it is for consideration whether he is a proper party. If he is not, the lower Court erred in exercising jurisdiction

which it has none by impleading the vendor, and its order would be, therefore, subject to my revisional jurisdiction.

(3) It is an essential prerequisite for one to be made a party that he should have a subsisting interest in the subject-matter of the suit. Ramamurti, J.,

had occasion to consider exhaustively the implications of O. 1, R. 10, Civil P.C. In C.M.V. Krishnamachari Vs. M.D. Dhanalakshmi Ammal and

Others, . The learned Judge observed that the interest that is necessary to make a person a party is legal interest including equitable interest, that is,

an interest which law would recognise and uphold. Thus, the sine qua non for any person being impleaded to an already pending lis is that he or she

should have a direct or tangible interest in the subject-matter. A mere convenience or benefit which might possibly result to a party applicant by

adding another party to the pending suit is not the test to be applied. Avoidance of multiplicity of legal proceedings is no doubt a salient rule. Such

avoidance must be in relation to the lis in question and cannot embarrass all possible conceivable litigation that the parties may indulge in later which

are totally unconnected with the main issues in the suit. Another infallible test is that a new party can be added in order to decide all questions

arising in the suit or involved in the suit. if, therefore, such questions can be decided without the proposed party, the judicial discretion vested in

Court to implead parties Under O. 1, R. 10(2) Civil P. C., ought not to be exercised; if so exercised, it would amount to a patent exercise of

jurisdiction when it is not there. In Razia Begum Vs. Sahebzadi Anwar Begum and Others, , their Lordships of the Supreme Court held that the

interest which the proposed party shall have in the suit to enable him to be impleaded there in, should be a direct interest and not a commercial

interest. What is sought to be done in this case is that the plaintiff who has instituted a suit for partition of the suit property which is alleged to be in

the joint possession of the respondent and the petitioners, applies for impleading his vendor who was originally the co-sharer in the property along

with the petitioners. It cannot be said that, without the presence of the vendor of the plaintiff, the issues arising in the suit and all questions involved

therein cannot be decided satisfactorily. No question of avoidance of multiplicity of suit arises. The vendor has neither a direct of commercial

interest in the list. It is significant to note that the petitioners are not disputing the sale or the share of the plaintiff in the suit property consequent

upon such a sale. Indeed, no relief is asked for against the proposed party.

(4) In such circumstances, the main question that arises for determination is, whether the vendor of the respondent who has been directed to be

added as a proper party by the lower Court can be considered to have been so added legally. In Re: Kelloth Ibrahim Haji and Others, ,

Ramaswami J. held as follows:--

Order 1, Rule 10(2), Civil P. C., confers wide discretion to the Court to meet every case of defect of parties but is subject to two limitations, viz.,

(1) that the Court has no power to join a person as a party if he could not have been originally impleaded under O. 1, R. 1, or R. 3, Civil P.C. and

(2) that the presence of the person added must be necessary to effectually and completely adjudicate upon and settle all points involved in the suit

if persons who are sought to be impleaded have no subsisting right over the properties and they are sought to be impleaded only for the purpose of

getting their evidence, and it would not be proper to make them parties to the suit and that the petitioner apprehension that they would be driven to

the necessity of filing a separate suit against these persons is not a sufficient justification to compel the plaintiff to implead them as parties to the

suit.

(5) No doubt, the above case was a case in which the defendant wanted to implead a third party as an additional party to the suit. but the

principles will equally apply even in the case where the plaintiffs ask for impleading a third party as an additional party defendant. One other ground

that is urged before me is that such impleading of the proposed party is necessary to avoid multiplicity of suits. The essence of the test of

multiplicity of suits lies in the appreciation of facts and circumstances of each particular case. O. S. No. 164 of 1963 is a suit instituted by the

respondent for a partition of the oil mills as on the foot of a purchase of an undivided moiety in such mills by him from his predecessor-in-interest

who is proposed to be added as a party. O.S. No. 520 of 1963 originally instituted in the Court of the District Munsif of Erode is a suit filed by the

petitioners for an injunction against the respondent restraining him from interfering with their business. In these state of affairs, it is not easy to

comprehend as to what possible suit in the future as between the parties to the two suits can be avoided by impleading the predecessor-in-interest

of the respondent herein as party to the suit. It may be that there may be controversies and there may be rights and liabilities inter se between the

respondent and his vendor. But the adjudication of such disputes or a reference to it in the present suits would be alien to the scope of such suits.

As pointed out by Mukherji J., in Nrisingh Prosad Paul Vs. Steel Products Ltd., , it is only for the purpose of the adjudication of the ""real

controversy"" between the parties that a Court might exercise its judicial discretion and add a third party to the suit, so that in consequence thereof

multiplicity of suits can be avoided. Mukherji J. in the above suit was considering the question of amendment of pleadings. He held that the

governing consideration in an application to amend the pleadings should be confined to the determination of the ""real controversy"" between the

parties. if that test is not satisfied, then the amendment should not be allowed even on the ground that there can be no real prejudice by the

amendment and that the costs awarded against the amending party will act as the panacea for any possible inconvenience occasioned by the

amendment. There is always legal prejudice when irrelevant matters are allowed to be introduced by amendment. The learned Judge adds that ""the

real controversy"" test is the basic test which governs the Court''s unchartered powers of amendment of pleadings. This has been put as the cardinal

test as well. This test which has been applied for amendment of pleadings, does also to a certain extent apply to in the case of adding of parties as

well. No amount of assertion on the part of the parties to a lis to the effect that it would avoid multiplicity of suits, that it would be of any avail. If

the cardinal test, namely, for a final adjudication of the ""real controversy"" such addition is necessary, is not satisfied, then it cannot be said with any

reasonable certainty that the proposed party is a proper party. I am of the opinion that the following tests may be formulated usefully as a guidance

in the case of adding of parties under O. 1, R. 10, Civil P. C.: (1) If, for the adjudication of the ""real controversy"" between the parties on record,

the presence of a third party is necessary, then he can be impleaded. (2) It is imperative to note that by such impleading of the proposed party, all

controversies arising in the suit and all issues arising thereunder may be finally determined and set at rest, thereby avoiding multiplicity of suits over

a subject-matter which could still have been decided in the pending suit itself; (3) The proposed party has a defined, subsisting, direct and

substantive interests in the litigation, which interest is either legal or equitable and which right is cognisable in law; (4) Meticulous care should be

taken to avoid the adding of a party if it is intended merely as a ruse to ventilate certain other grievances of one or the other of the parties on

record which is neither necessary or expedient to be considered by the Court in the pending litigation; and (5) It should always be remembered

that considerable prejudice would be caused to the opposite party when irrelevant matters are allowed to be considered by Courts by adding a

new party whose interest has no nexus to the subject-matter of the suit.

(6) In the light of the such judicial precedents and the principles laid down above, I do not see any justification for the proposed party herein being

added as a regular party. I do not agree with the observations of the Subordinate Judge that the proposed party is a proper party. I have already

given my reasons. If the proposed party is not a proper party, the Court has no jurisdiction to add him as a party to the suit. Therefore, there is an

error apparent in the judgment of the lower Court. I, therefore, set aside the order of the Subordinate Judge who directed that the party proposed

by the respondent be added as a regular party to the suit. The revision petition is allowed, but in the peculiar circumstances of this case, there will

be no order as to costs.

(7) Petition allowed.