S. Krishnan vs Rathinavel Naicker and Others

V. Ramasubramanian, J.—Though the miscellaneous petitions were posted for hearing, the main revision petition itself was taken up by

consent of both parties, in view of the limited scope of the dispute involved in the C.R.P.

The civil revision petition arises out of an order passed on 31-8-2004 in I.A. No. 426 of 2003 in A.S. No. 17 of 2001 on the file of the

Additional District Court (Fast Track Court II) Kancheepuram, allowing a petition filed under Order I, Rule 10(2), C.P.C., for impleading the

respondents 5 to 23 as respondents in the first appeal.

The petitioner herein namely S. Krishnan, originally filed a suit in O.S. No. 341 of 1998 on the file of the Principal District Munsif Court,

Kancheepuram for a permanent injunction restraining the 1st respondent herein from interfering with his possession of the suit property.

After the institution of the above suit, the 1st respondent herein, namely Rathinavel Naicker filed 3 suits in O.S. No. 799 of 1998, O.S. No. 819

of 1998 and O.S. No. 573 of 1999 on the file of the same Court. In O.S. No. 799 of 1998, the prayer of the 1st respondent was for a permanent

injunction restraining the petitioner herein and the police authorities from forcing him to hand over possession of the suit property. The prayer in

O.S. No. 819 of 1998 was for a declaration that he is the absolute owner of the suit schedule property and for a consequential permanent

injunction restraining the petitioner and the police authorities from interfering with his possession and enjoyment of the suit property. The prayer in

O.S. No. 573 of 1999 was for a permanent injunction restraining the petitioner herein and the revenue authorities from transferring the patta in

favour of the petitioner.

The case of the 1st respondent herein in the suit was that he purchased a part of the suit property in the year 1957 and purchased the remaining

part of the suit property in the year 1958 from the original owner by name Krishnamachary by virtue of oral sales and that since the consideration

paid on each occasion did not exceed Rs. 100/- the sale was not reduced into writing and registered. The case of the petitioner herein in his own

suit and in the other suits was that he purchased the suit property from the 2nd respondent herein by virtue of a registered sale deed dated 25-5-

1998.

By a common judgment dated 22.12.2000, the trial court decreed the suit filed by the petitioner herein and dismissed all the 3 suits filed by the

1st respondent herein. As against the dismissal of his suit O.S. No. 819 of 1998, the 1st respondent filed A.S. No. 17 of 2001 on the file of the

Additional District Court (Fast Track Court II) Kancheepuram.

At the time when the appeal was ripe for hearing, the 1st respondent herein filed I.A. No. 426 of 2003 for impleading the respondents 5 to 23

as party respondents in the main appeal, on the ground (i) that the original owner of the suit schedule property Mr. Krishnamachary (from whom

he claims to have purchased the property under oral sales) left behind 3 sons; (ii) that the 2nd respondent (from whom the petitioner claims to have

purchased the property under a registered sale deed) is the wife of one of the sons of Krishnamachary (iii) that the proposed parties 5 to 23 are

the legal heirs of the other 2 sons of Krishnamachary and (iv) that their presence is necessary for effective adjudication of the dispute between the

parties.

The appellate court allowed the application for impleading on the ground that their presence is necessary for deciding the actual dispute between

the parties. Hence the present revision.

Mr. R. Subramanian, learned Senior Counsel appearing for the petitioner contended -

a) the respondents 5 to 23 are neither necessary nor proper parties;

b) that except a bald averment that their presence is necessary for effective adjudication of the dispute, no valid reasons are furnished in the

affidavit in support of the petition for impleading them; and

c) that their presence at this stage of the proceedings is wholly unnecessary.

The learned Senior Counsel also relied upon a judgment of this Court reported in Nachammal Vs. Lavangammal, in support of is contentions.

Mr. A.S. Thambusamy, learned Counsel appearing for the 1st respondent, who is the actual contesting respondent, contended-

a) that both the parties to the dispute trace their title only to one Krishnamachary;

b) that while his client claims to have bought the property from Krishnamachary by virtue of 2 oral sale transactions, the petitioner claims to have

purchased the property from the daughter-in-law of the said Krishnamachary, who is the 2nd respondent herein;

c) that the trial court repeatedly discussed about the non availability of particulars regarding the members of the family of Krishnamachary and the

legal heirs of his other 2 sons and hence it became necessary for his client to implead the legal heirs of the sons of Krishnamachary; and

d) that their presence is necessary for the effective adjudication of the dispute.

As seen from the admitted facts, the petitioner herein claims title to the property by virtue of a registered sale deed executed by the 2nd

respondent, who is the daughter-in-law of Krishnamachary. The 1st respondent claims title to the property by virtue of 2 oral sales made by

Krishnamachary himself in the years 1957 and 1958. The trial court upheld the claim of the petitioner herein and rejected the claim of the 1st

respondent. Now on appeal, the 1st respondent has come up with the petition to implead the legal heirs of 2 deceased sons of Krishnamachary.

Therefore the question that arises for consideration is whether these legal heirs of the deceased sons of Krishnamachary are necessary or proper

parties to the litigation.

It is well settled that a plaintiff is the dominus litus in a suit and he is free to implead anyone as the defendant in the suit instituted by him. But it

does not mean that he can do so at his sweet will. The term ''at any stage of the proceedings'' appearing in Order I, Rule 10 (2), C.P.C., though

would encompass within itself the appellate stage, will not entitle the plaintiff to use it as an open, free and general license to implead anyone, at any

stage, without establishing that they are necessary or proper parties to the litigation.

In M/s. Aliji Monoji and Co. Vs. Lalji Mavji and others, , the Supreme court defined a ''necessary party'' as one without whose presence no

effective and complete adjudication of the dispute could be made and no relief granted. ''Proper party'' is defined as one whose presence is

necessary for complete and effectual adjudication of the dispute, though no relief is sought against him. In the case on hand, the trial court has

already decided the lis between the parties and the correctness of the same is under challenge in the first appeal. In other words, in so far as the

trial court is concerned, an effective adjudication has already been made by the trial court and a complete and final decision has also been

rendered. Therefore, the respondents 5 to 23 do not pass either of the above tests, to be treated as necessary or proper parties.

In Dr. s. Kameswaran Vs. A. Jayaraman and another, , a Division Bench of this Court held that a party can be impleaded when there is a

cause of action against him. But in this case, the actual parties to the litigation, claim title to the property as absolute owners and there is no

pleading to the effect that the proposed respondents have either denied the title of any one of them or interfered with the possession and enjoyment

of any one of them. Thus no cause of action is either pleaded or sought to be established against the proposed parties and hence they are actually

unnecessary for the adjudication of the lis between the parties, especially at the stage of the appeal.

A party can also be impleaded when the relief prayed for in the proceedings is sought to be made binding on him or when it is felt that he

would be adversely affected by the ultimate outcome of the proceedings. But in this case no relief is sought against the proposed respondents and

the relief prayed for is also not intended to be made binding on them. It is not even the case of the 1st respondent that the outcome of the

proceedings would adversely affect the interests of the proposed respondents.

A party to a litigation is not entitled to use the provisions of Order I, Rule 10 (2), C.P.C., to implead a person, just for the purpose of eliciting

a statement from him, in whatever form, so as to make use of the same as a piece of evidence. As observed by this Court in Somasundaram

Chettiar and others Vs. Balasubramanian, , a person does not become a necessary party merely because he has some evidence relevant to the

case on hand. A necessary witness is different from a necessary party.

In a nut shell, the tests to be applied for determining the right of a party to implead another, in a pending suit or other proceeding, may be

crystallized into the following categories-

a) If without his presence no effective and complete adjudication could be made;

b) If his presence is necessary for a complete and effectual adjudication of the dispute though no relief is claimed against him;

c) If there is a cause of action against him;

d) If the relief sought in the suit or other proceedings is likely to be made binding on him;

e) If the ultimate outcome of the proceedings is likely affect him adversely;

f) If his role is really that of a ''necessary witness'' but is sought to be camouflaged as a ''necessary party'';

If a party to a litigation satisfies the court that the person sought to be impleaded, passes any one or more of the above tests, then he is entitled to

get the discretion of the court exercised in his favour. The above tests are not exhaustive and at times, even if a person falls under any one of the

above categories, the court may refuse to implead him. To quote an example, a subsequent purchaser of a property, which forms the subject

matter of the suit, may satisfy the tests (d) and (e) above mentioned and yet the court may decline to implead him on the basis of the doctrine of lis

pendent. Therefore the above list is only a broad statement of the principles that could be culled out from judicial precedents.

Applying the above principles, I am of the considered view that the order of the Additional District Court (Fast Track Court II)

Kancheepuram, allowing the petition of the 1st respondent, filed under Order I, Rule 10(2), C.P.C., cannot be sustained. The respondents 5 to

23, who had no occasion to participate in the proceedings before the court of first instance, actually have no role to play in the first appeal, since

they cannot support or oppose the judgment of the trial court, without any contribution from them in the form of pleadings or evidence. Therefore

the order under revision is set aside. However there will be no order as to costs. Consequently, connected CMP and VCMP are closed.