Sarojini vs Monikantan

K. Kalyanasundaram, J.—This revision is filed against the order made in I.A. No. 80 of 20076 in O.S. No. 8 of 2007 passed by the learned District Munsif cum Judicial Magistrate, Eraniel. The petitioners are third parties to the suit. The first respondent filed the suit against the second respondent for permanent injunction restraining the defendant, his agents and servants from demolishing or altering the present altar of the deity Sudalaimadan from the suit property and from erecting or making any construction for and establishing the idol of Mutharamman in the Suit property or making any type of construction to make or alter the physical features of the suit property in any manner.

The suit was filed contending that the ancestors of the plaintiff and the defendant allotted the suit property, where the deity Sudalaimadan, as their protecting god, was installed. They made an altar of Sudalaimadan to give sacrifices of animals and birds. The plaintiff has contended that the defendant acted as a believer of Sudalaimadan and was taking care of the altar of Sudalaimadan for about 9 years and on someone''s ill advise, now the defendant intends to remove the altar of the deity Sudalaimadan and trying to place a new deity Mutharamman. Hence, the suit.

The petitioners, who are third parties to the suit, filed an application in I.A. No. 80 of 2007 under Order 1 Rule 10(2) and Section 151 of C.P.C., to implead them as defendants 2 to 5 in the suit. The case of the petitioners is that the suit property originally belonged to their ancestral family, that several generations ago, their ancestors set apart the suit site of 7 cents for the common temple site and installed Arulmighu Sudalaimadan temple, Mutharamman temple and other 19 peedoms for the worshippers. The petitioners have further stated that the temples were not properly maintained and seeing dilapidated condition of the temple site, certain devotees of their family came forward and formed a committee on 11.04.2006 consisting of 11 members and started works in restoring above temples, peedoms etc.

It is further stated that in the pursuance of the administrative committee, they have reconstructed the altar, temples, peedoms etc. utilizing the funds collected from the ardent members, who are the devotees of the temples in the suit property. The petitioners have further stated that the suit filed against the sole defendant was a collusive one.

The first respondent alone filed a counter and resisted the application disputing the claim made by the petitioners. The learned District Munsif dismissing the application. Aggrieved by the order, the present revision is filed.

Heard Mr. K.N. Thampi, learned counsel for the petitioners and Mr. C.K.M. Appaji, learned counsel for the first respondent.

The learned counsel for the petitioner submitted that the suit was instituted in a collusive and fraudulent manner by the sole plaintiff against the sole defendant, where the sole defendant remained exparte so as to enable the sole plaintiff to get a collusive and fraudulent decree. The learned counsel further submitted that since the petitioners being proper and necessary parties to the suit, the Court ought to have allowed the application. The learned counsel relied upon the judgment reported in P.R. Nallathambi Goundan Vs. Vijaya Raghavan and Others, , Profulla Chorone Requitte and Others Vs. Satya Choron Requitte, , Dhanalakshmi and Others Vs. P. Mohan and Others, , Akshya Vidyalaya Charitable Trust Vs. E. Kaladevi and Seven Ors., .

Per contra, the learned counsel for the first respondent submitted that the revenue records produced by the plaintiff would show that the plaintiff alone is the owner of the suit property and the proposed parties have not produced any material to show their right or interest in the suit property. The learned counsel further submitted that if the proposed parties have any interest in the suit property, they have to file a suit for declaration and establish their right as held by the trial Court.

In P.R. Nallathambi Goundan Vs. Vijaya Raghavan and Others, , this Court has held as follows:

"In all cases of litigation which are governed by Explanation VI to S. 11, C.P.C. It is settled law that Explanation VI to S. 11 applies to a proceeding by or against the managing member of a joint family, common sense and natural justice require that persons whose interests would be affected by the result of the litigation, would be entitled to come on record to perfect their interests in the further prosecution of the litigation, especially when their complaint is that the party already on record in a representative character is either not taking necessary and proper steps in the further prosecution of the proceedings or threatens to do something would jeopardise their interest. O. 11 R. 8 C.P.C. Specially enables a party so represented, if he so desires, to come on record. It would be a travesty of justice to hold that a party who is bound by the result of a litigation, though not eo nomine a party to the litigation shall be denied an opportunity to draw the attention of the court to some step, which seeks to prejudice his interests behind his back. In all such cases, it is the plain duty of the court to implead the parties concerned either under O. I Rl 10, or in exercise of its undoubted, inherent power under S. 151 C.P.C."

In the case of Akshya Vidyalaya Charitable Trust Vs. E. Kaladevi and Seven Ors., , an application was filed before the trial Court for impleading on the ground that they are interested in the suit proceedings. While dismissing the revision filed against the order allowing the application, this Court has held as follows:

"On a perusal of the order of the Court below, I find that the lower Court was very much aware of the above said contentions raised while ordering the application for the impleadment. In fact, the Court below has only held that the above contentions could be validly determined at the time of trial and in the present juncture, under Order 1 Rule 10(2), what was required was only a prima facie satisfaction and when based on the claim now made by the respondent, the Court below was convinced that their impleadment as plaintiffs 4 and 5 was imperative for the proper adjudication of the suit, the application was bound to be allowed. I am in full agreement with the said perception of the Court below while ordering the application preferred by the respondents. As rightly held by the Court below, merely because the application has been allowed and the respondents 1 and 2 got impleaded as plaintiffs 4 and 5, the same would not ipso facto mean that the existence of the so called Will dated 15.2.1995 was proved in all respects and that nothing more was required to be done with regard to the execution of the said Will in the disposal of the suit. Therefore, when the Court below has also held that after the impleading of the respondents as plaintiffs 4 and 5, the petitioners would also be entitled to file their additional written statement and make their say, there is absolutely no justification in the stand of the petitioners in stating respondents 1 and 2 as plaintiffs 4 and 5 would defeat their claim in the main suit. Therefore, I do not find any grave illegality or irregularity in the order of the Court below in having allowed the application of the respondents 1 and 2 for impleading them as plaintiffs 4 and 5. It is however reiterated that ordering of the said application would not ipso facto mean that the existence of the Will dated 15.02.1995 relied upon by the respondents got established. The burden is still upon the respondents to establish the said factor to the satisfaction of the Court which burden is to be discharged by the respondents at the time of trial of the suit."

In the case of Profulla Chorone Requitte and Others Vs. Satya Choron Requitte, , the Hon''ble Supreme Court has held as follows:

"From whatever angle the matter may be looked at, the conclusion is inescapable that Shebaitship of the family deity remained solely with the descendants of the founder; and the defendant respondent who is admittedly a grandson of the founder, had been regarded as one of the Shebaits, and as such, entitled to reside in the disputed rooms. All the Shebaits were therefore, necessary parties; but all of them have not been impleaded. The trustees by themselves, have no right to maintain the suit in respect of the debutter property, the legal title to which vests in the ido, and not in the Trustees. The right to sue on behalf of the deity vests in the Shebaits. All the Shebaits of the deity not having been made parties, the suit was not property constituted, and was liable to be dismissed on this score alone."

It is seen from the records that the plaintiff has instituted the suit contending that the suit schedule property to an extent of 7 cents of lands belongs to their forefathers and it was allotted for establishment of the temple. The plaintiff has contended that for time immemorial, the temple is being maintained by the plaintiff and the defendant. It is the case of the petitioners that the property originally belonged to their ancestral family and they have installed the deities and peedoms and they have been maintaining them. The petitioners have further stated that they have constituted a committee on 11.04.2006 and they have collected funds and they have reconstructed the altars, temples and peedoms etc. The specific allegation of the petitioners is that the plaintiff and the defendant have colluded and filed the suit with an ulterior motive.

As per the principles laid down in the judgments cited supra, persons, who have interest in the suit property, whose interest would be affected by the result of the litigation, can be impleaded under order 1 Rule 10 of C.P.C. Moreover, at the stage of impleading, the rights of the parties cannot be decided and it will be decided only after full-fledged trial. In view of such conclusion of this Court, the reason given by the trial Court that the petitioners have to file a separate to establish their right cannot be countenanced. The order dated 24.04.2008 in I.A. No. 80 of 2007 in O.S. No. 8 of 2007 on the file of the Court of the Principal District Munsif cum Judicial Magistrate, Eraniel is set aside. In the result, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.