IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.06.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM C.R.P.(PD).No. 344 of 2006 & C.M.P.No.2964 of 2006 1. M.P.Venkatachalam 2. Gunasekaran .. Petitioners/Petitioners/Defendants -vs- 1. Govindan 2. Govindammal 3. Thangammal .. Respondents/1st Respondent & Pro Parties 1 & 2 Plaintiff/ Pro Impleading/Defendants PRAYER The above Petition is filed under Article 227 of the Constitution of India to call for the records concerning I.A.No.158 of 2005 in O.S.No. 86 of 2003 on the file of the District Munsif Court at Dharmapuri dated 31.8.2005 and to set aside the same. For Petitioners: Mr.V.Ayyadurai For Respondents: Mr.R.Thamaraiselvan-R1 & R2 No appearance - R3 ............ O R D E R The defendants are the petitioners herein. This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order made in I.A.No. 158 of 2005 in O.S.No. 86 of 2003 on the file of the District Munsif Court, Dharmapuri, dated 31.08.2005 2. The defendants filed I.A.No.158 of 2005 in O.A.No.86 of 2003 to implead one Tmt. Govindammal wife of Govindan and Thangammal wife of Kolandai Gounder as defendants to the Suit and this Interlocutory Application was dismissed by the Court below, as against which the above Civil Revision Petition has been filed. 3. According to the Revision Petitioners the plaintiff filed a Suit for declaration and permanent injunction in respect of an https://hcservices.ecourts.gov.in/hcservices/ agricultural land comprised in Survey No.423/2A, Kambapatti Village, Dharmapuri Taluk, measuring an extent of 1.80 acres. The plaintiff in paragraph No.4 of the Plaint has avered as to the manner in which he has acquired title over the Suit Property. The claim of the plaintiff was resisted by the defendants by filing a written statement. 4. During the pendency of the Suit, an Application in I.ANo. 158 of 2005 came to be filed by the defendants to implead the two persons stated above, one of whom is the wife of the plaintiff, stating that they are predecessor in title and adjacent land owners and therefore, they are proper and necessary parties for the adjudication of the claim. The plaintiff filed their counter affidavit contending that the said two persons are neither proper or necessary parties to the case and prayed for dismissal of the Interlocutory Application. The trial Court after considering the scope of Order I Rule 10 of Civil Procedure Code and relying upon the decision of the Hon'ble Supreme Court in 2005 SAR (CIVIL) 500, dismissed the Application. 5. Mr.V.Ayyadurai, learned counsel for the petitioners would contend that the finding of the trial Court that by impleading the vendors as defendants in the Suit would enlarge the scope of the Suit besides, protracting the issue, is unacceptable and the trial Court ought to have considered the aspect that the proposed parties are proper and necessary parties for the full and complete adjudication of the lis. The learned counsel placed reliance on the decision of this Court in 2005 3 CTC 733 [SIVARAMAN @ HARIKRISHNAN Vs. RAJESWARI @ SHANTHI] in support of his contention. 6. The learned counsel appearing for the respondents on the other hand would contend that the proposed parties are adjacent owners and they are no way connected with the suit property and they have no interest in the subject matter and therefore the trial Court was right in dismissing the Application. Further, it is contended that the plaintiff is in a position of dominus litis and therefore he cannot be compelled to contest his suit against the proposed parties. 7. I have considered the submissions made by the learned counsel appearing on either side and perused the materials available on record. 8. The plaintiff has filed the suit for declaration of title and for consequential permanent injunction in respect of the property comprised in Survey No.423/2A, Kambapatti Village, Dharmapuri Taluk, measuring an extent of 1.80 acres. In paragraph 4 of the plaint, it has been stated that the property, which is situated adjacent to the plaintiff's property was purchased by the first defendant by sale deed dated 24.05.1999 and their vendor was https://hcservices.ecourts.gov.in/hcservices/ Kolandai Gounder, who became entitled to the property by sale deed dated 18.01.1962, after the demise of Kolandai Gounder, his wife Tmt. Thangammal and others had sold the property to the first defendant. It is further stated that when the sale deed was executed, the parties have measured the common path way and thereafter registered the document. In paragraph 5 of the plaint, it has been stated that the predecessor in title of the first defendant, Kolandai Gounder by sale deed dated 18.01.1962 had purchased only an extent of 86 cents in survey No.424, but his wife Tmt. Thangammal and others have sold to the first defendant an extent of 0.88.0 hectares by sale deed dated 24.05.1999 and the sale deed has been fraudulently done by including an extent of 32 cents and that the predecessor in title of the first defendant have conveyed the property with incorrect measurement. The defendants in their written statement have denied all the allegations and contended that the plaintiff's title, pursuant to the sale deed dated 29.01.1975 in respect of survey No.423/2A itself contains incorrect measurement as his predecessor in title one Periannan and Alagammal and their minor children did not possess the said extent in survey No.423/2A. It is further stated that the sale deed executed in favour of the plaintiff dated 29.01.1975 is a forged and fabricated document by the plaintiff and his vendors. In paragraph 7 of the written statement, the defendants have stated as to how they have acquired title to the property. 9. With the above factual background, the defendants filed I.A.No.151/2005 for impleading the defendants Tmt.Govindaammal and Thangammal. A counter affidavit was filed, wherein apart from resisting the application for impleadment, the plaintiff also raised several averments to sustain his title over the suit property. Perusal of the counter appears to be a reply statement to the written statement. With these pleadings, the learned Trail Judge took up the matter for consideration and elaborately went into the issue and in fact has rendered a finding that one of the proposed party is the predecessor in title of the plaintiff and the other is wife of the plaintiff and the property, which is subject matter possessed by them are different and in each civil litigation if the predecessors in title are to be impleaded, then there would be no end to the litigation and therefore dismissed the application. 10. Order 1 Rule 10(2) CPC has given wide power to the Court to join any party to a proceedings either upon or without an application, to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. For impleadment of a proper and necessary party, the theory that the plaintiff is the dominus litis is not always an absolute rule and the Court is required to exercise its discretion and decide as to whether in the absence of such parties whether, the Court would be in a position to effectively and completely adjudicate and settle all the questions, which are involved in the suit. Therefore, while https://hcservices.ecourts.gov.in/hcservices/ considering an application under Order 1 Rule 10 (2) CPC, the Court ought not to over stretch the theory of dominus litis. As seen from the facts of the present case, there is a serious dispute as regards an extent of land conveyed to the plaintiff as well as what has been purchased by the first defendant. The plaintiff himself in the plaint has raised as specific plea that the first defendant predecessor in title has conveyed more than what she is entitled to. Per contra, the defendants in their written statement would contend that the sale deed executed in favour of the plaintiff dated 29.01.1971 itself is a forged and fabricated document. Therefore, unless the right, title and interest of the predecessors in title to the plaintiff and the first defendant is gone into a complete adjudication of the question involved in the present suit cannot be decided. 11. The application for impleadment is for impleading the predecessor in title. Therefore, on facts it cannot be stated that the proposed parties are not necessary parties to the suit. Considering the case pleaded by both parties, the proposed defendants are not only necessary parties but proper parties, so that the Court would be in a position to completely and effectively adjudicate on all the issues involved in the suit. Therefore, the order of the Court below in rejecting the application for impleadment is not tenable. The Hon'ble Supreme Court in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, (1992) 2 SCC 524, considered the object of Order 1, Rule 10 (2) CPC and held as follows:- "13. A clear distinction has been drawn between suits relating to property and those in which the subject matter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest as distinguished from the commercial interest is required to be shown before a person may be added as a party. 14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which https://hcservices.ecourts.gov.in/hcservices/ cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd. 2, wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England 3, that their true test lies not so much in an analysis of what are the constituents of the applicants’ rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated: “The test is ‘May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights’.” 12. By applying the above decision to the facts of the present case, it is clear that for deciding the question raised in the suit, it would be necessary to go into the fact as to whether the predecessors in title had valid right over the property in question on the date, whey they conveyed the same to the parties to the suit and any decision on such question would have a binding effect on the proposed parties. Therefore, in order to give a complete adjudication to the suit claim and to avoid multiplicity of proceedings, the Court below ought to have exercise discretion and allowed the application for impleading. 13. For the above reasons, the Civil Revision Petition is allowed and the order passed in I.A.NO.158/2005 in O.S.No.86/2003 dated 31.08.2005, on the file of the District Munsif Court, Dharmapuri, is set aside and the proposed parties, namely the second and third respondents herein are impleaded as the third and fourth defendants in O.S.No.86/2003. No costs. Consequently, connected Miscellaneous Petition is closed. pbn/rpa Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ TO 1.The District Munsif Court at Dharmapuri. 2.The Section Officer, V.R.Section, High Court, Chennai. + 1 cc to Mr. V.Ayyadurai, Advocate SR No.44399 + 1 cc to Mr. R.Thamaraiselvan, Advocate SR No.44528 PKB(CO) SR/25.6.2010 Order in C.R.P.(PD).No. 344 of 2006 https://hcservices.ecourts.gov.in/hcservices/