OP. Mani and Another vs AMS. Thaikka Lebbai and Others

K. Gnanaprakasam, J.—The revision petitioners are the respondents 3 and 4 and the proposed parties in IA.No. 20480/2001 in OS.No.

523/2000 before the VIII Assistant City Civil Court, which application was filed by the respondents 1 and 2 / plaintiffs for amendment of the plaint

and also for substituting their names in the place of the original defendants and the said petition came to be allowed. Aggrieved by the same, the

respondents 3 and 4/proposed defendants have preferred this civil revision petition.

Heard the learned Advocate for the revision petitioners and the respondents 1 and 2 and the respondents 3 and 4 were given up on the ground

that no relief was sought against them.

The learned Advocate for the revision petitioners would contend that the respondents originally filed the suit against the defendants, viz.

Rajalakshmi and Bhuvaneswari and also filed I.A.Nos. 2964/2000 and 2965/2000 for grant of interim injunction and also for amendment and both

the petitions were allowed by the trial Court. Out of the orders passed in two interlocutory applications, the order passed in IA.No. 2965/2000

was challenged before this Court in CRP.No. 2847/2001 and this Court by order dated 9.11.2001, allowed the CRP. But, however, the right of

the respondents/ plaintiffs was protected, by permitting them to file appropriate applications to obtain relief that they seek for. Subsequent to the

order passed by this Court, the plaintiffs have filed IA.No. 20480/2001 and the said petition was filed under Order 1, Rule 10 read with XVI Rule

17, CPC, praying to order amendment of the plaint and also for substituting the proposed defendants'' name in the place of the original defendants.

The trial Court, after taking into consideration all the aspects of the case, ordered substitution of the names of the proposed defendants 1 and 2

under Order 1, Rule 10, CPC and dismissed the prayer for amendment and an opportunity was given to the respondents/ plaintiffs to file a fresh

petition under Order 6, Rule 17, CPC.

The learned Advocate for the revision petitioners would contend that the entire application proceeded on the footing of amendment only and the

respondents/plaintiffs have not made out any case for joining/ substituting/impleading the revision petitioners as defendants. Unless or otherwise the

respondents/plaintiff make out a case for impleading or joining these parties, they cannot be joined or impleaded as parties. It is also stated that

there is no cause of action against the revision petitioners.

On going through the affidavit filed in support of the petition filed by the respondents/plaintiffs, in paragraph 8 of the affidavit, it is stated that the

respondents/plaintiffs during the last week of January 2001 started demolishing the mud wall building and removed the tin sheet and started putting

up construction with concrete pillars, columns, etc. The 2nd plaintiff was in foreign country and the 1st plaintiff obliged to go to foreign country and

could return only on 14.1.2000 and on verifying the situation, they have filed the suit against those defendants. Subsequently, an Advocate

Commissioner was appointed in this case, who has inspected the suit property on 10.2.2000 and to whom, the original defendants have stated that

they have no right in the suit property. But, however, O.P. Mani and Baby Ammal are stated to be the present owners of the suit property and

who have also put up construction. This alone necessitated the respondents/plaintiffs to implead the revision petitioners as parties. As a matter of

fact, this fact has been set forth in paragraph 15 of the affidavit, which gives rise enough cause of action for joining or impleading the revision

petitioners as defendants.

Order 1, Rule 10(2), CPC states, ""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.

As the original defendants 1 and 2 expressed that they do not have any manner of right or interest in the suit property and they have also stated

that the revision petitioners are the owners of the suit property, the respondents/plaintiffs are well within their right to file this application to strike

out the earlier defendants and also to join or implead the revision petitioners as defendants and the petition filed by the respondents/plaintiffs is well

within the scope of Order 1, Rule 10(2), CPC and the same cannot be questioned. As a mailer of fact, this is the view expressed by the trial Court

also and allowed the prayer of the respondents. But, however, the respondents have camouflaged both the prayers in one petition and the trial

Court rightly disallowed the prayer for amendment and ordered the prayer for impleading/joining of the revision petitioners as defendants. I do not

find any error in the order passed by the trial Court, which warrants interference by this Court.

In the result, the civil revision petition is dismissed. Consequently, connected CMP is also dismissed. No costs.