1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:16.03.2011 CORAM: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.R.P(NPD)(MD)No.520 of 2011 and M.P(MD)NO.2 of 2011 1.Ramaraj 2.M.Pitchammal 3.A.Muthulakshmi 4.S.Ramuammal .. Petitioners/Appellants/Plaintiff -vs- 1.S.Arumugam Chettiar 2.P.Subramania Chettiar 3.G.Palanivel Chettiar 4.K.Balasubramanian ...Respondents 1 to 4/Respondents 1 to 4/ Respondents 1 to 4 5.K.Jeyakumar 6.M.Subbiah 7.M.Velraj 8.M.Sivakumar ...Respondents 5 to 8/Respondents 5 to 8/ Proposed parties 1 to 4 A.Shanmugavel Chettiar (Died) 9.S.Ashok Kumar ...9th Respondent/10th Respondent / Proposed party No.6 10.Madathi Ammal 11.S.Rajendran 12.S.Kannan 13.Sumathi .. Respondents 10 to 13/ Proposed LRs of Shanmugavel Chettiar PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, seeking to revise and set aside the orders dated 23.06.2010 passed in I.A.No.96 of 2009 in A.S.No.62 of 2008, by the Sub- Court, Sankarankoil. For Petitioners : Mr.S.Ramesh Alias Ramaiah *** ORDER The Civil Revision Petition is directed against the order dated 23.06.2010 passed in I.A.No.96 of 2009 in A.S.No.62 of 2008, by the Sub- Court, Sankarankoil. 2.The petitioners, who are the plaintiffs in the suit, lost the original proceedings, against which, an appeal has been preferred and the same is pending. In the said appeal, an impleading petition has been filed to implead the proposed parties. That petition was dismissed and https://hcservices.ecourts.gov.in/hcservices/ 2 the order passed therein is under challenge before this Court. 3.Mr.S.Ramesh Alias Ramaiah, learned counsel appearing for the petitioner submits that the appellate Court committed error in dismissing the application especially, when the plaintiffs have got right to implead the parties at any stage of the proceedings. Therefore, impleading petition is maintainable. 4.Secondly, he submitted that there was no time for the plaintiffs to go through the written statement and to implead the parties, who are all stated in the fourth defendant's written statement. One of the findings of the trial Court for dismissing the suit is non-joinder of necessary parties. Therefore, the petitioners have filed the impleading petition. 5.He also relied upon a judgment of the Division Bench of this Court in Sri Vengeeswarar Devasthanam by its Hereditary Trustee, reported in Chennai (2009) 1 MLJ 833, to stress the point that even in the appellate stage, the impleading petition can be ordered. 6.Thirdly, he submitted that if the proposed parties are impleaded, the petitioner can ask for alternative remedy of partition, as the appellants' right to enjoy the property was already recognised by the trial Court. 7.It is seen from the records that the suit is for declaration and for consequential relief of injunction. The fourth defendant filed a written statement and in paragraph No.5 of the said written statement it has been categorically stated the sons of K.R.S.Muthiah Chettiyar, sons of Kallavendhal Chettiyar and sons of Ayyamperumal Chettiyar are also having right over the property and they are necessary parties to the suit. When such a categorical statement has been made in the written statement of the fourth defendant, it is the bounden duty of the plaintiffs/petitioners herein to implead those parties. However, they miserably failed to implead them. Holding that the plaintiffs have got right to enjoy the properties along with others, the trial Court dismissed the suit. It was declared in the decree itself that the fourth defendant has also got right to enjoy the property and there is a clear finding that the suit is bad for non-joinder of necessary parties in paragraph No.22 of the said judgment. Only to get over the said finding, it seems, the appellant has taken out the impleading petition at the appellate stage. The parties cannot be allowed to fill up lacuna detrimental to the interest of the other parties, especially, when the petitioner had every right to file impleading petition before the trial Court. 8.It is not as if the appellate Court has got no power to implead the proposed parties. It is well settled law that at any stage of the proceedings, the parties can be added. However, the facts as stated above would reveal that the petitioner did not add the necessary parties in time by filing implead petition before the trial Court. Therefore, the Appellate Court rightly dismissed the application observing that the application is only intended to fill up the lacuna. 9.The application has been filed only to circumvent the decree of dismissal suffered by the petitioner. If the impleading petition is ordered, it would be used as a tool to remand the matter to the trial https://hcservices.ecourts.gov.in/hcservices/ 3 Court, by getting the dismissal order set aside. 10.With regard to the contention regarding petitioners' plea for partition suit, the petitioners need not get necessary permission either from this Court or from the appellate Court. They can work out their remedy, according to law before the competent jurisdiction. 11.In view of the same, the Civil Revision Petition is dismissed, confirming the order of the trial Court in I.A.No.96 of 2009 in A.S.No.62 of 2008. Consequently, connected Miscellaneous Petition is also dismissed. No costs. Sd/- Assistant Registrar (Crl.Side) /True Copy/ Sub Assistant Registrar To 1.The Subordinate Judge, Sankarankoil. 2.The District Munsif, Sankaran Kovil +1 CC TO MR. RAMESH @ RAMIAH, ADVOCATE S.R NO. 6615 COPY TO: THE SECTION OFFICER, VR SECTION, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI C.R.P(NPD)(MD)No.520 of 2011 16.03.2011 ps PAM 19.04.2011/5C/3P https://hcservices.ecourts.gov.in/hcservices/