Ravichandran vs P. Shanmugam and Others

M. Venugopal, J.—The civil revision petitioner/first respondent/plaintiff has filed this civil revision petition aggrieved against the order dated

12.08.2008 in I.A. No. 814 of 2008 in O.S. No. 417 of 2005 passed by the Additional District Judge, Fast Track Court No. V, Coimbatore at

Tiruppur in allowing the application filed by the first respondent/proposed party under Order 1 Rule 10 of CPC and directing him to be impleaded

as 9th defendant in the suit.

The trial Court has passed orders in I.A. No. 814 of 2008 inter alia observing that ''the plaintiff has denied the execution of the made over deed,

the original of which has been filed along with the petition, the deed has has become a disputed document etc. and further that as the plaintiff denies

its execution, the first respondent/proposed party cannot be impleaded as second plaintiff in the suit and to avoid multiplicity of litigation in respect

of agreement for sale and also to consider the claim of the proposed party, he has been ordered to be impleaded as 9th defendant in the suit etc.

and resultantly, has allowed the application.

According to the learned Counsel for the revision petitioner/plaintiff that the trial Court has not considered the merits of the claim of the revision

petitioner from proper perspective viewed point and that the trial Court should have seen that a person who sought to get himself impleaded based

on an alleged unregistered deed of assignment ought to prove the assignment in the manner known to law and that the proposed party has no cause

of action to continue the suit either as a plaintiff or as a defendant without proof of such an assignment and that the plaintiff is the dominus litus in the

suit filed by him, which fact has not been taken into consideration by the trial Court and a third party cannot be thrust against and the trial Court has

not borne in mind of the fact that the son who claimed to have obtained an assignment in his favour is enimical towards his mother and therefore,

prays for allowing the civil revision petition in the interest of justice.

The learned Counsel for the revision petitioner contends that the first respondent/proposed party/petitioner is not a proper and necessary party

to be impleaded in the present case and in support of his contention, he relies on the decision Hridaya Narain Singh Vs. Hira Lal and another,

wherein it is inter alia observed as follows:

Otherwise also the plea of the applicant that he was the real owner of the property in question and that the defendant opposite party, Smt. Phulmati

Devi, was holding the property benami cannot entitle him to be impleaded in the suit in view of the provisions contained in Sub-section (2) of

Section 4 of the Benami Transactions (Prohibition) Act, 1988 which provides that no defence based on any right in respect of any property held

benami, whether against the person in whose name the property is held or against any person, shall be allowed in any suit, claim or action by or on

behalf of a person claiming to be the real owner of such property. The applicant, therefore, is not such a person who ought to have been joined in

the suit as defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely adjudicate

upon and settle all or any question involved in the suit. The Court below was well within its jurisdiction under Sub-rule (2) if Rule 10 of Order I of

the Code in declining the prayer of the applicant for being impleaded as defendant and did not act either illegally or with any material irregularity.

He also cites the decision M.K. Navaneetham Naidu Vs. Gangiah Naidu and Others, whereby it is held that ''the real owner is not the legal

representative of a benamidar within the meaning of Section 2(11) of CPC and that a benamidar can maintain an action in his own name and so

long as the benamidar does not purport to sue in a representative capacity, the real owner cannot come in on his death under Order 22, Rule 3 of

Civil Procedure Code.'' Yet another decision Ajmera Housing Corporation Vs. Amrit M. Patel (Dead) Through L.R.S. and Others, has been

relied on the side of petitioner wherein the Hon''ble Supreme Court has refused to interfere with the impugned order of High Court since the issues

involved as to the assignment of rights ought to be thrashed out in properly constituted suit and not in an appeal against interlocutory order and any

decision would prejudice developer in case he files separate suit. Further, the learned Counsel for the revision petitioner submits that as per Section

19 of the Specific Relief Act, an undisclosed principal cannot be impleaded as a party in the case and that the trial Court has not gone into the

aspect and therefore, the order of the trial Court suffers from serious infirmity and needs to be set aside by this Court.

Per contra, the learned Counsel for the first respondent/proposed party/petitioner submits that the respondent/proposed party is a necessary

party for proper adjudication of disputes involved in the case and that the trial Court has passed a just and fair order of allowing the I.A. No. 814

of 208 by observing that in order to avoid multiplicity of litigation in respect of the suit agreement of sale and to consider the claim of the proposed

party in the suit etc. and therefore, this Court sitting in revision may not interfere with the orders passed by the trial Court in as much as the trial

Court has exercised its discretion judiciously in allowing the impleading application. Added further, the learned Counsel for the first

respondent/proposed party/petitioner cites the decision Firm of Mahadeva Rice and Oil Mills and Others Vs. Chennimalai Goundar, wherein this

Court has formulated the following tests as a useful guidance in the case of adding of parties under Order 1 Rule 10 of CPC are runs as follows:

... (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. C.M.V. Krishnamachari Vs. M.D. Dhanalakshmi Ammal and Others, and Razia Begum Vs. Sahebzadi Anwar Begum and Others, and In Re:

Kelloth Ibrahim Haji and Others, and Nrisingh Prosad Paul Vs. Steel Products Ltd., , Rel. on.

It is to be borne in mind that a necessary party is one without whom no order can be effectively made in the considered opinion of this Court.

As a matter of fact, besides the Order 1 Rule 10(2) of CPC the Court has inherent power to order substitution of parties. However, the Court is

to take into account all relevant circumstances. It is to be noted that a necessary party is of one without whom no order can be made effectively. A

proper party is one whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the

question involved in the proceedings. Indeed, a person may be a proper party even though no relief is claimed against him. To bring a person as a

party defendant is not a substantive right but one of procedure and the Court has to exercise its discretion in a proper manner. To avoid multiplicity

of suits and conflicting decisions a party may be added in a given case.

At this juncture, this Court points out that for resorting to protection u/s 19(b) of the Specific Relief Act the subsequent purchaser should have

entered into a transaction bonafide and that he ought to have paid the entire amount etc. These ingredients will have to be proved by the

subsequent purchaser and onus lies on him.

On a careful consideration of respective contentions, since the first respondent/proposed party/petitioner has made a claim that the revision

petitioner/first respondent/plaintiff has executed a made over deed in his favour on 21.01.2008 with respect to the sale agreement and taking note

of the fact that the revision petitioner/first respondent/plaintiff has denied the same as false, this Court is of the considered view, the first

respondent/proposed party is a necessary and proper party for completely and effectively deciding all questions/controversies involved in the suit

and further that since the first respondent/proposed party is likely to be affected by the final outcome of the case, he must be impleaded as one of

the defendants and in that view of the matter, he has been rightly ordered to be impleaded as 9th defendant in the suit for an effective and final

adjudication and therefore, the order passed by the trial Court does not suffer from any material irregularity or illegality in the eye of law. However,

the observation of the trial Court that after impleading the first respondent/proposed party can raise his plea by way of counter claim by paying

necessary Court fee is clearly unsustainable in the eye of law and hence, the same is set aside by this Court in the interest of justice.

In fine, the order passed by the trial Court in so far as it relates to the impleading of the first respondent/proposed party as 9th defendant in the

suit is confirmed. However, the further observation of the trial Court that after impleading the proposed party can raise his plea by way of counter

claim by paying necessary Court fee is set aside to prevent aberration of justice. Liberty is given to the parties to raise all contentions/objections in

the main suit before the trial Court in the manner known to law.

With these observations, the Civil Revision Petition is disposed of. There shall be no order as to costs. Consequently, connected miscellaneous

petition is closed.