K. Sreenivasaiah vs A. Mohammed Ishaq

T. Mathivanan, J.—Challenging the correctness of the fair and decretal Order, dated 26.11.2013 and made in I.A. No.572 of 2013 in O.S. No.109 of 2000 on the file of the learned District Munsif-cum-Judicial Magistrate No.I, Hosur, this Memorandum of Civil Revision has been directed.

The Petitioners 1 to 5 being third parties to the Suit in O.S. No.109 of 2000 are the Revision Petitioners herein, whereas the Respondents 1 to 8 are the Plaintiffs and R9 is the First Defendant and the Respondents 10 to 16 are the legal representatives of the Second Defendant, viz., B.N. Suryanarayaaniah.

The facts which lead the Revision Petitioners/third parties to prefer this memorandum of Civil Revision are as under:

a. Originally, one Mohamad Iyub Sahib (since deceased) seems to have filed the Suit in O.S. No.109 of 2000 as against the Ninth Respondent herein and one B.N. Suryanarayanaiah.

b. During the pendency of the said Suit, the said Mohamad Iyub Sahib had passed away. Therefore, his Legal Representatives have been impleaded as the Plaintiffs 2 to 10 in the Suit.

c. The said Suit was filed as against the Ninth Respondent herein and one B.N. Suryanarayaaniah for the relief of granting a decree for possession of the Suit schedule site from the Defendants after the removal of the bunk shop from the Schedule premises by the Defendants within such time as may be granted under the decree.

d. Failing as above, the Court to deliver the vacant possession to the Plaintiff after removing the bunk shop from the Suit property with execution costs.

The Defendants 1 & 2 have contested the Suit and the Written Statement filed by the First Defendant was adopted by the Second Defendant.

During the pendency of the Suit, it appears that the Revision Petitioners being third parties, have come forward with a Petition under Order 1, Rule 10 of C.P.C. to implead themselves as Defendants in the Suit.

This Petition was also vehemently resisted by the Respondents 2 to 10, viz., the Plaintiffs and after hearing both sides, the learned Trial Judge, viz., the District Munsif-cum-Judicial Magistrate has also proceeded to dismiss the Petition on 26.11.2013 on the ground that the Revision Petitioners/third parties have not approached the Court with clean hands and that the Petition seemed to have filed after 13 years from the date of filing of the Suit only for the purpose of protracting the proceedings without any cause of action.

Having been aggrieved by the above said Order, dated 26.11.2013, the Revision Petitioners/third parties have approached this Court with this Memorandum of Civil Revision.

Heard Mr. P. Valliappan, learned Counsel appearing for the Petitioners and Mr. V. Ragavachari, learned Counsel appearing for the Respondents.

While advancing his arguments, Mr. P. Valliappan, learned Counsel for the Petitioners has adverted to that the suit property along with other properties comprised in S. No.80/31B have been classified as Natham and situated at Berikai Village.

He has contended that the predecessors of the Revision Petitioners/ third parties, namely, Mangamma and Narasamma had purchased the property comprised in S. No.80 of Berikai Village under a registered Sale Deed bearing Document No.1348 of 1945, dated 16.5.1945 and during their life time, Narasamma had sold an extent of 4� yard x 4� yard in favour one Nanjundaiah and an extent of 6 feet x 10 feet in favour of one Suryanarayanaiah, retaining the remaining portion, which is now sub-divided as S. No.80/31B.

He has also argued that the Respondents 1 to 8/Plaintiffs had trespassed into a part of the Suit property recently and after coming to know about this fact, a Legal Notice was caused to be issued to the Respondents/ Plaintiffs on 12.8.2013. But even after the receipt of the Notice they never responded.

According to Mr. P. Valliappan, learned Counsel for the Revision Petitioners, neither the Plaintiffs nor the Defendants have got any title or interest over the Suit property and since the Revision Petitioners/third parties are the original legal owners of the property comprised in S. No.80/31B of Berikai Village, without their impleadment in the Suit, there could not be any fair decision and that if any decision is taken in the Suit it would definitely affect the rights and interest of the Revision Petitioners and therefore, he has urged that the Revision Petitioners/third parties are the proper and necessary parties to the Suit.

Besides this, he has also argued that the Defendants in the Suit had got their property only to the West of the Suit property, which the predecessors of the Defendants had purchased from the above said Narasamma and that the Plaintiffs had colluded with the Defendants and subsequently obtained a decree behind their back.

On the other hand, Mr. V. Ragavachari, learned Counsel appearing for the Respondents/Defendants has submitted that the Revision Petitioners were not the representatives in title or interest either through Plaintiffs or through the Defendants and since they were utter strangers to the Suit, they did not have any locus standi to maintain the Petition under Order 1, Rule 10 of C.P.C.

He has also added that earlier, i.e., prior to the present Suit, the deceased First Plaintiff-Mohamad Iyub Sahib had instituted a Suit in O.S. No.279 of 1996 in respect of the very same property as against the Defendants, viz., B.N. Sridhar Moorthy and B.N. Suryanarayanaiah seeking the relief of declaration of his right, title and interest over the Suit property and also for the consequential relief of injunction. That Suit was decided in favour of the deceased First Plaintiff-Mohamad Iyub Sahib and thereby, his right and title over the Suit property was declared and this matter was taken up-to Supreme Court wherein the Decree and Judgment of the Court below were confirmed.

Under these circumstances, he would submit that the alleged trespass theory invented by the Revision Petitioners/third parties was patently false. He has also added that the present Suit was originally filed in the year 2000 and even after passing of fourteen years from the date of filing of the Suit, purposely the Revision Petitioners/third parties had not been allowing the Plaintiffs seeing the colour of the decree.

He has also maintained that there was no prima facie case and the Revision Petitioners/Plaintiffs had failed to explain as to how far they were proper and necessary parties to the Suit, the learned Trial Judge had correctly dismissed that Application, which could not be allowed to be challenged by way of this Memorandum of Civil Revision.

Apart from this, he has also argued that there was a different cause of action set up by the Revision Petitioners/third parties and it could only be secured by resorting to separate legal remedy.

He has also maintained that since the Plaintiffs were dominus lids, he could not be compelled to fight against certain persons against whom he did not want to litigate.

Before going into the merits of the case, it may be appropriate to extract the provisions of sub-rule (2) to Rule 10 of Order 1, C.P.C.

Sub-rule (2) contemplates that-

"Court may strike out or add parties":

-"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 necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the Suit, be added."

Of course, under sub-rule (2) the power to strike out as well as to add parties may be exercised at any stage of the proceedings, and even without any Application by a party. Sub-rule (2) can be invoked either by a party to the Suit or by the Court suo moto or by a third party, who desires to be added as a party. In exercise of the power to implead a person, the Court must be cautious enough to see that a collusive decree is not obtained against the real owner or interested owner without impleading the person, whose presence is absolutely necessary for the proper adjudication of the Suit.

It is significant to note here that the power of the Court under this sub- rule is of discretion in nature which is to be exercised judicially, keeping in mind that one of its objects is to prevent multiplicity of the Suits and conflict of decisions.

It is settled proposition of law that the Plaintiff is the dominus litis and he, therefore, cannot be compelled to sue a person against whom he does not claim any relief. The Theory of dominus litis, however, should not be over-stretched in the matter of impleading of parties, because it is the duty of the Court to ensure that for deciding the real matter in dispute, a person is a necessary party, he can be ordered to be impleaded.

It is also settled proposition of law that it is open to the Court to add any such person as necessary party in the Suit to enable the Court effectively adjudicate the question involved in the Suit. However, for exercise of power under this Rule, the Court has to come to a finding that the party is a necessary or proper party. Therefore, the addition of parties would depend upon the judicial discretion, which has to be carefully exercised in the facts and circumstances of the case.

It may be worthwhile to mention here that the deceased First Plaintiff Mr. Mohammed Iyub Sahib, as stated in the foregoing Paragraphs, had filed a Suit in O.S. No.279 of 1996 as against the very same Defendants as it appear in the present Suit in O.S. No.109 of 2000 seeking the relief of declaration of his right, title and interest over the suit property and also for permanent injunction.

The Defendants 1 & 2 had contested the said Suit, however, the said Suit was decreed in favour of the deceased First Plaintiff-Mohammed Iyub Sahib on 31.3.2000. The Defendants had also challenged the Decree and Judgment rendedred in the above said Suit. Subsequently, it went up-to the Supreme Court. Despite in their long journey up-to the Apex Court, the Defendants were defeated.

Now on the strength of the decree of declaration of his title over the Suit property as well as the perpetual injunction, the present Suit has been instituted by Mohammed Iyub Sahib for recovery of possession of the Suit Schedule site from the Defendants after the removal of bunk shops from the Schedule premises within the time which may be fixed by the Court and also to deliver the vacant possession to the Plaintiff.

It is pertinent to note here that the property described in both the Suits are one and the same. The previous Suit, viz., O.S. No.279 of 1996 was instituted on 27.5.1996.

During the pendency of the Suit in 0.S. No.279 of 1996 before the Trial Court as well as before the Appellate Courts up-to the Supreme Court, the Revision Petitioners/third parties never chosen to interfere or implead themselves as a party.

As afore stated, since the right and interest of the deceased First Plaintiff-Mohammed Iyub Sahib has been declared in the prior Suit in O.S. No.279 of 1996, the present Suit in O.S. No.109 of 2000 has been instituted by him only for the consequential relief of recovery of possession.

Under these circumstances, the Revision Petitioners/third parties claiming exclusive right over the Suit property have filed the Petition in I.A. No.572 of 2013 seeking leave of the Trial Court to implead themselves in the Suit as Defendants.

Now the core question for the consideration of this Court is as to "whether the Revision Petitioners/third parties should be allowed to implead themselves as the Defendants in the Suit so as to enable them to establish their title."

From the perusal of the averments of the Affidavit filed in support of the Petition, this Court finds that there is acquiescence on the part of the Revision Petitioners/third parties. Even if it is presumed without admitting that they are the original owners of the property, they have not raised their little fmger during the pendency of the previous Suit in O.S. No.279 of 1996 until it reaches finality. They never come forward either to implead themselves or to question the claim of title made by the deceased First Plaintiff-Mohammed Iyub Sahib.

Now the title of Mohammed Iyub Sahib has been declared over the Suit property and it has become final.

Even the present Defendants in the Suit, who have been arrayed as parties also do not have any right to put forth any new plea, because, already their plea, which was set forth in the earlier Suit, was considered and decided in favour of the deceased First Plaintiff-Mohammed Iyub Sahib.

Under these circumstances, it is not fair on the part of the Revision Petitioners/third parties to come forward with this Petition claiming to implead themselves in the Suit as the Defendants. As rightly decided by the Court below, their claim is not only maintainable under law but also a vexatious one.

In this connection, this Court would like to place it on record that a proper party is one without whose presence, the question raised 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.

Rama Prasada Rao, J., has enumerated the following five cardinal tests in the decision cited hereunder to decide the question as to whether the person, who seeks to be impleaded in a Suit or proceedings, is a necessary party or proper party.

In Firm of Mahadeva Rice and Oil Mills and others v. Chennimalai Gounder, AIR 1968 Mad 287, Ramaprasada Rao, J. has observed as under:

"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 convenient for purposes of trial, that it would not cause prejudice to any party, 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. The following tests may be formulated usefully as a guidance in the case of adding of parties under Order 1, Rule 10, C.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 interest 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."

Mr. V. Ragavachari, during the course of his arguments, has drawn the attention of this Court to the order passed by this Court, dated 11.1.2013 and made in the case of Kairunnisa Begum and seven others v. B.N. Sreedhara Murthy, Razia Begum and A. Mohammed Hayathuzama, 2013 (3) MWN (Civil) 717 : C.R.P.PD. No.2540 of 2012.

On a perusal of the Order, dated 11.1.2013, it is revealed that the First Defendant in the present Suit in O.S. No.109 of 2000, Mr. B.N. Sreedhara Murthy appears to have filed a Suit in O.S. No.85 of 2012 on the file of the Sub-Court, Hosur, for declaration of title to the Suit property.

During the pendency of the Suit, the Revision Petitioners therein, who are the Plaintiffs in the present Suit have filed an Application under Order 7, Rule 11 of C.P.C., to strike off the Plaint on the ground that it amounts to relitigation and a case of clear abuse of process of Court.

While Mr. V. Ragavachari was arguing in the above said Revision Petition, viz., C.R.P.(PD) No.2540 of 2012 before this Court, he had pointed out that the Plaintiff therein, i.e., Mr. B.N. Sreedhara Murthy (0.S. No.85 of 2012) had admitted that the suit property was the subject matter of the Suit in 0.S. No.59 of 1996 filed by Ayub Sahib (since deceased) against B.N. Sreedhara Murthy and his uncle for declaration of his title to the suit property and the Suit was transferred to the District Munsif, Hosur and re-numbered as 0.S. No.279 of 1996 (prior Suit in which the right and title of Ayub Sahib was declared) and that the Plaintiff-Mr. B.N. Sreedhara Murthy (who is the First Defendant in the present Suit), was the Plaintiff in that Suit, and a decree was also passed against B.N. Sreedhara Murthy and the title of Ayub Sahib was declared and the same was confirmed in A.S. No.9 of 2000 on the file of the Sub-Court, Hosur and also confirmed in S.A. No.1996 of 2003 on the file of this Court (High Court of Madras) and therefore, having regard to the Judgments rendered in O.S. No.279 of 1996, A.S. No.9 of 2000 and S.A. No.1996 of 2003, the Suit in O.S. No.85 of 2012 filed by the First Respondent Mr. B.N. Sreedhara Murthy, who is the First Defendant herein (in the present Suit) amounts to relitigation and it is a clear abuse of process of Court and as such it cannot be allowed to be entertained.

The argument advanced by Mr. V. Ragavachari was accepted by this Court in the above said C.R.P.(PD) No.2540 of 2012.

A perusal of the above said Order, dated 11.1.2013 and made in C.R.P.(PD) No.2540 of 2012, it is revealed that as evidenced from the records the Suit in O.S. No.279 of 1996 was decreed in favour of Ayub Sahib and his title was declared and the claim of B.N. Sreedhara Murthy was negatived.

The Appeal in A.S. No.9 of 2000 filed against the Decree and Judgment in O.S. No.279 of 1996 was dismissed and the Second Appeal preferred by B.N. Sreedhara Murthy in S.A. No.1996 of 2003 was also dismissed and the Judgment and Decree of the said Second Appeal was challenged in the Supreme Court in C.C. No.7770 of 2012 and the same was also dismissed. However, the Hon''ble Apex Court has observed that the Petitioner, if so advised, may file a separate Suit for establishing his rights.

In this connection, the learned Single Judge of this Court has observed in the above said Revision Petition that the observation of the Apex Court cannot be construed as a right given to the Respondent to file a fresh Suit for declaration of title.

Keeping in view of this fact, the learned Single Judge has allowed the Revision Petition filed by the Plaintiffs herein. While allowing the Civil Revision the learned Single Judge of this Court has observed that it is a clear case of relitigation and abuse of process of Court and therefore, the Revision is maintainable and consequently, the Suit in O.S. No.85 of 2012 filed by B.N. Sreedhara Murthy, who is the First Defendant in the present Suit was struck off from the file of the Sub-Court, Hosur.

In this connection, Mr. V. Ragavachari has submitted that having been failed in his attempt Mr. B.N. Sreedhara Murthy, who is the First Defendant in the present Suit, had been using the Revision Petitioners/third parties as an instrument to prolong the proceedings in order to prevent the Respondents/Plaintiffs from taking delivery of possession on the strength of the Judgment and Decree passed in the Suit in O.S. No.279 of 1996. Therefore, he has urged to dismiss the present Revision Petition as it seems to be a clear abuse of process of Court.

On the other hand, Mr. P. Valliappan, learned Counsel appearing for the Revision Petitioners, while countering the arguments advanced by Mr. V. Ragavachari, has canvassed that at any stage of the proceedings either on an Application made by the parties or on direct impleadment of any person as a party, the Court can order such party to be impleaded as Plaintiff or Defendant when there is sufficient cause to show that his presence is necessary for the effective and complete adjudication of the issues involved in the Suit.

He has also maintained that the Revision Petitioners/third parties have crucial documents to prove their title over the Suit property and he has also urged that if they are provided with an opportunity, they could avail it to establish their right.

In support of his contention, he has placed reliance upon the following two decisions:

a. S. Krishnan v. Rathinavel Naicker and 22 others, 2007 (2) CTC 73; and

b. M.P. Venkatachalam and another v. Govindan and 2 others, 2010 (4) CTC 318.

This Court has gone through the above cited decisions and having given its careful consideration to the facts and circumstances narrated therein, this Court is of view that the above cited decisions are not made applicable to the facts and circumstances of the present case on hand.

In Ramaswamy and 4 others v. The State of Tamil Nadu, 1999 (3) CTC 335, K. Sampath, J., as he then was, has made a reference to a Judgment in Banarsi Dass Durga Prashad v. Panna Led Ram Richhpal Oswal and others, AIR 1969 P & H 57.

In this case, it has been observed that "as a rule the Court should not add a person as a Defendant in a Suit when the Plaintiff is opposed to such addition. The reason is that the Plaintiff is the dominus litus. He is the master of the Suit. He cannot be compelled to fight against a person against whom he did not wish to fight and against whom he does not claim any relief. Even if a person may be incidentally affected by the Judgment, he need not be made a party."

Having been given careful consideration to the facts set forth in the Memorandum of Civil Revision and the submissions made by both the learned Counsels, viz., Mr. P. Valliappan and Mr. V. Ragavachari, this Court is of considered view that the Revision Petition is not liable to be allowed, instead, it is deserved to be dismissed as devoid of any merits.

Accordingly, the Revision Petition is dismissed confirming the fair and decretal Order, dated 26.11.2013 and made in I.A. No.572 of 2013 in O.S. No.109 of 2000 on the file of the District Munsif-cum-Judicial Magistrate Court No.1, Hosur.

Further, the learned District Munsif-cum-Judicial Magistrate is hereby directed to dispose of the Suit in O.S. No.109 of 2000 as expeditiously as possible preferably within four months from the date of receipt of a copy of this order.

With the above direction, this Revision Petition is dismissed without any costs. Connected M.P. is also dismissed.