IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-10-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH OSA Nos.325 and 326 of 2009 and MP No.1 of 2009 in OSA 325 of 2009 and MP Nos.1 and 2 of 2009 in OSA 326 of 2009 Bhavani Electricals rep. By its Proprietor Pannalal Ground Floor, No.21 (New No.41) NSC Bose Road, Chennai 600 079. .. Appellant in both appeals vs 1.Ammakamma Charities Rep by its Managing Trustee Swarnaraman No.21, NSC Bose Road, Madras 600 079. 2.Swarnaraman 3.MJF.Ln.D.B.Amaresh 4.K.L.Sekar 5.G.R.Basavarajan 6.Jotheeswaran 7.Noorul Ameen 8.Seema Gold Covering Works 9.Nalli Covering 10.Rajeswari Stores 11.Mummy Daddy Banians Respondents 7 to 11 carrying on business at Ground Floor No.21 (New No.41) NSC Bose Road, Chennai 600 079. 12.Vigneshkumar Jewellers 13.Vijayalakshmi Art Jewellery Respondents 12 & 13 carrying on business at First Floor No.21 (New No.41) NSC Bose Road Chennai 600 079. 14.Sankruthi Jewellers carrying on business at Second Floor, No.21, (New No.41), NSC Bose Road, Chennai 600 079 .. Respondents in (Respondent 8 to 14 are given up both appeals https://hcservices.ecourts.gov.in/hcservices/ Original side appeals preferred under Order 36 Rule 11 of O.S. Rules read with Clause 15 of Letters Patent against the common order of this Court dated 15.7.2009 made in A.Nos.3399 and 3400 of 2008 in C.S.No.685 of 1993. For Appellant : Mr.V.Raghavachari for Mr.M.Raja Sekhar For Respondents : Mr.V.Bhiman for M/s.Sampathkumar Associates for R-1 COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) These two intracourt appeals challenge a common order of the learned Single Judge of this Court made in Application Nos.3399 and 3400 of 2008 in C.S.No.685 of 1993, a suit for recovery of possession of the plaint schedule mentioned property and also for mandatory injunction. 2.The Court heard the learned Counsel for the appellant and also for the respondents. 3.These appeals have arisen under the following circumstances: (a) According to the plaintiffs, the schedule mentioned property annexed to the plaint belonged to the first plaintiff a Charity, and the first defendant was a trespasser, and taking advantage of the situation he was assisting the first plaintiff trust in relation to the court proceedings, and he trespassed into the property on 3.5.1993, and thereafter, he was making certain constructions. The suit was filed in C.S.No.685 of 1993. According to the plaintiffs, they also sought for a direction to the first defendant to pay a sum of Rs.10 lakhs towards damages for use and occupation. (b) Originally interim injunction application was filed, and though interim injunction was granted, it was subsequently vacated. Thereafter, an appeal was taken in OSA No.109 of 1993 against the order of vacating injunction, and it was allowed on 22.8.1995. Since the directions given by the Court were disobeyed, there was a contempt proceeding in Contempt Petition No.454 of 2000, and the Division Bench of this Court on 14.11.2000 made an order directing the first defendant to deposit a sum of Rs.2 lakhs into the Court within a period of three weeks and also file an undertaking as stipulated therein. A direction was also given to him to deposit the rent into the Court realised from the two rooms which were already let out by him. He has not deposited so. But he took a SLP, and the same was also dismissed. The Supreme Court has given stay of sentence of imprisonment and directed him to deposit Rs.2 lakhs; but, he did not do so. (c) According to the plaintiffs, while the matter stood thus, the proposed defendants 2 to 9 were inducted as tenants at different portions of the property, and under such circumstances, there arose a necessity for making the proposed parties as parties to the suit since it was a suit for recovery of possession, and the first defendant was a trespasser, and he has actually inducted the proposed parties, and even if a decree is made against the first defendant, further proceedings have got to be initiated against the proposed parties, and hence it has become necessary to implead them as parties. The other application was to direct the proposed defendants 2 to 9 to deposit the rental into the Court which they were actually https://hcservices.ecourts.gov.in/hcservices/ paying to the first defendant. (d) A counter affidavit was filed by the first defendant and also the proposed parties. (e) The learned Single Judge after looking into the materials and hearing the submissions made, took the view that it was a fit case where the proposed parties should be impleaded as parties, and since the first defendant has not deposited the amount before the Court, it is a fit case where the proposed parties should be directed to deposit the rental into the Court. Thus these two appeals have arisen before this Court. 4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the entire cause of action as per the original pleading, was against the first defendant who was actually a tenant; that though it is contended by the plaintiffs that he was a trespasser, he has filed a written statement stating that he was originally a tenant, and he was put in possession, and he has made payment of advance also, and he was a statutory tenant in the property; and that as far as the proposed defendants 2 to 9 are concerned, they have nothing to do either with the cause of action or with the earlier proceedings or the pending proceedings. 5.Added further the learned Counsel that in the instant case, they were actually neither proper parties nor necessary parties; that if the Court comes to the conclusion that the first defendant is actually a trespasser and if a decree for recovery of possession is granted, then only the other questions would arise; that in the instant case, so long as specific averments are not made against the proposed defendants 2 to 9, they cannot be made as parties; that under the circumstances, the order of the learned Single Judge that they should be impleaded as defendants 2 to 9 has got to be set aside; that in the instant case, they have been directed to deposit the rent into the Court; that actually the scope of the suit is only for recovery of possession against the first defendant and also for mandatory injunction to demolish and remove the constructions which, according to the plaintiffs, were illegal and unlawful; that as far as these proposed parties are concerned, they have been under the first defendant as statutory tenants, and under the circumstances, it is not a fit case where they could be added as parties. 6.In support of his contentions, the learned Counsel relied on a decision of this Court reported in AIR 1968 MADRAS 287 (FIRM OF MAHADEVA RICE AND OIL MILLS AND OTHERS V. CHENNIMALAI GOUNDER). 7.The Court heard the learned Counsel for the respondents on the above contentions and paid its anxious consideration on the submissions made. 8.After looking into the materials available, this Court is of the considered opinion that no case is made out by the appellant even for admission of these appeals. It was a suit filed by the first plaintiff Trust along with the other Trustees against the first defendant alleging that he is a trespasser, and taking advantage of the situation, he was assisting the Trust in its activities, and he got into the property, and thus the relief of recovery of possession https://hcservices.ecourts.gov.in/hcservices/ should be decreed. Along with that relief, they have also asked for mandatory injunction alleging that certain constructions were made pending proceedings, and they should be demolished and removed. According to the plaintiffs, they have also asked for damages for use and occupation. It is a case where the matter is pending from 1993. Originally there was an interim injunction application filed, and it was also made against the first defendant. The interim injunction originally granted, was vacated. As against that order, the appeal was brought forth, and it has also been allowed. It is pertinent to point out that at the time of the disposal of the appeal, the Division Bench has given an order stating that the respondent should deposit a sum of Rs.2 lakhs into the Court within a period of three weeks and file an undertaking that (i) not to put up any further construction, (ii) not to let out the rooms said to have been constructed, but let out so far and (iii) to deposit the rent into the Court realized from two rooms which had been let out by him. As far as this order was concerned, no material was placed that the order was obeyed by the first defendant at any point of time. 9.Now, it is brought to the notice of the Court that the proposed defendants 2 to 9 have actually been inducted in the property as tenants. It is also pertinent to note that the appellant before the Court is not the first defendant, but the second proposed party, and the counter filed by the proposed party No.2 would clearly indicate that he has been a tenant under the first defendant making payment of rental. Hence it would be quite clear that while the plaintiffs have come forward with the suit that the first defendant himself was a trespasser, and pending the suit he has made constructions and let out the property, in the face of the order made by the Division Bench, as stated above, the first defendant has inducted all these persons as tenants pending the proceedings. Under the circumstances, as rightly observed by the learned Single Judge, in a given case where if a decree is made as against the first defendant at the end of the trial for recovery of possession, it would become impossible and could not be executed in full if they are not added as parties. In a given case where the party is a necessary party, the test to be applied is that in the absence of such party, the issues before the Court could not be decided, and effective remedy could not be granted. If this settled principles of law is applied, this Court is satisfied that the proposed parties are necessary parties to be impleaded. 10.It is the specific case of the plaintiffs that the first defendant is a trespasser, and the proposed parties were inducted by the first defendant, and hence they should be added as parties to have the issues properly decided, and effective and efficacious remedy could be granted at the time of trial. 11.Added further in the instant case, originally there was a direction given by the Division Bench to the first defendant to deposit a sum of Rs.2 lakhs being the rental what was recovered by him from the tenants, but he has failed to do so, and in future also he was directed to deposit the rental into the Court, but he has failed number of years. At that juncture, it became necessary to pass an order directing the proposed parties who admittedly were all tenants under the first defendant and inducted into possession, to https://hcservices.ecourts.gov.in/hcservices/ deposit the rental into the Court. Accordingly, the learned Single Judge has made such an order. This Court is unable to notice any merit in these appeals. 12.In the result, both these original side appeals fail, and they are dismissed confirming the order of the learned Single Judge and leaving the parties to bear their costs. Consequently connected MPs are also dismissed. nsv Sd/ Asst.Registrar true copy/ Sub Asst.Registrar OSA Nos.325 & 326 of 2009 To The Sub-Assistant Registrar, Original Side, High Court, madras 1CC to M/s Sampathkumar Associates (SR.53501) PKB (CO) SS (26.10.2009) https://hcservices.ecourts.gov.in/hcservices/