BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:15/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD)MD.No.457 of 2009 and C.R.P.(PD)MD.No.458 of 2009 and M.P(MD)No.1 of 2009 C.R.P.(PD)MD.No.457 of 2009 D.Vedanayagam ... Revision Petitioner/Petitioner/Proposed 2nd Respondent/
Proposed 2nd Defendant
Vs.
1.Raja
2.Vedamanickam … Respondents 1 and 2/Respondents 1 and 2/Petitioners/
Plaintiffs
3.Tirunelveli Diocese
represented by its
Bishop Rt.Rev.Jeyapaul David,
No.5, Punithavathiar Street,
Palayamkottai,
Tirunelveli – 627 002…. 3rd Respondent/3rd Respondent/Respondent/Defendant
Prayer
Civil Revision Petition filed under Article 227 of the Constitution of
India, to set aside the fair and decreetal order of the learned Principal
District Munsif, Tirunelveli, dated 08.12.2008 in I.A.No.1351 of 2008 in
I.A.No.630 of 2008 in O.S.No.351 of 2008.
C.R.P.(PD)MD.No.458 of 2009
D.Vedanayagam … Revision Petitioner/Petitioner/Proposed 2nd Defendant
Vs.
1.Raja
2.Vedamanickam … Respondents 1 and 2/Respondents 1 and 2/Plaintiffs
3.Tirunelveli Diocese
represented by its
Bishop Rt.Rev.Jeyapaul David,
No.5, Punithavathiar Street,
Palayamkottai,
Tirunelveli – 627 002…. 3rd Respondent/3rd Respondent/Defendant
Prayer
Civil Revision Petition filed under Article 227 of the Constitution of
India, to set aside the fair and decreetal order of the learned Principal
District Munsif, Tirunelveli, dated 08.12.2008 in I.A.No.1352 of 2008 in
O.S.No.351 of 2008.
!For Petitioner ... Mr.P.Jayapaul ^For Respondents ... Mr.M.Vallinayagam for R.1 and R.2 * * * * * :COMMON ORDER
The civil revision petitioner/petitioner has filed the C.R.P(PD)MD.No.457
of 2009 as against the order dated 08.12.2008 in I.A.No.1351 of 2008 in
I.A.No.630 of 2008 in O.S.No.351 of 2008 passed by the learned Principal
District Munsif, Tirunelveli, in dismissing the application filed by the
petitioner under Order I Rule 10(2) and Section 151 of the Code of Civil
Procedure, to implead him as the second respondent/second defendant in
I.A.No.630 of 2008 in O.S.No.351 of 2008.
2. To avoid an avoidable delay, this Court dispenses with the issuance of
notice to the third respondent in the interest of justice.
3. The petitioner/proposed defendant has filed the C.R.P.(PD)MD.No.458 of
2009 as against the order dated 08.12.2008 in I.A.No.1352 of 2008 in O.S.No.351
of 2008 passed by the learned Principal District Munsif, Tirunelveli, in
dismissing the application filed by the petitioner under Order I Rule 10(2) and
Section 151 of the Code of Civil Procedure, to implead him as the second
defendant in O.S.No.351 of 2008.
4. The trial Court while passing orders in I.A.Nos.1351 of 2008 and 1352
of 2008, has inter alia opined that the petitioner is neither necessary party
nor a proper party to the suit and resultantly, dismissed the said applications
without costs.
5. Aggrieved against the orders so passed by the trial Court in
I.A.Nos.1351 of 2008 and 1352 of 2008, the civil revision petitioner has
projected the two civil revision petitions before this Court.
6. The learned Counsel for the revision petitioner contends that the
revision petitioner has filed I.A.No.1352 of 2008 to implead him as the second
defendant in the suit and also filed I.A.No.1351 of 2008 to implead him as a
party in the injunction application in I.A.No.630 of 2008 in O.S.No.351 of 2008,
whereby the respondents 1 and 2 sought to stall the appointments and transfers
of teaching and non-teaching staffs of the educational institutions of Diocese
and that the petitioner has been elected as a member of the Diocese of
Tirunelveli and that he is the Secretary of the Standing Committee on higher
education of the Diocesan institutions which deal with the appointments and
transfers of teaching and non-teaching staffs, but the trial Court has passed a
non-speaking order without application of mind and that the trial Court has not
taken note of the fact that no election has been set aside and that the persons
elected have been competent to represent their interest and that since the
revision petitioner is an aggrieved individual, he is a necessary and proper
party to the suit and therefore, he prays for allowing the present civil
revision petitions to prevent aberration of justice.
7. The learned Counsel for the revision petitioner submits that the
petitioner is an elected office bearer and that he is a necessary party both in
injunction application as well as in the suit and if an injunction order is
passed, then certainly it will affect him in the administration and in support
of his contention, he relies on the decision of the Honourable Supreme Court in
Board of Control for Cricket, India v. Netaji Cricket Club reported in AIR 2005
SUPREME COURT 592, at page 604, wherein it is held as follows:
“84. On 11th October, 2004, we had, after hearing the counsel for the
parties observed that if a situation arises this Court would go into the
validity of the election of the office-bearers of the Board held in the meeting
dated 29th September, 2004, but, as indicated hereinbefore, we did so under a
mistaken belief that the Board would be represented by the new office-bearers
and, thus, all parties would be before us. However, it now stands admitted that
the office-bearers either in their personal capacity or official capacity are
not before us. They may have notice of the pendency of this proceeding. They
may be sitting on the fence and watching the proceedings of this Court. But,
unless they are made parties in these proceedings, we would not be in a position
to entertain the dispute as regard validity of the meeting of 29th September,
2004 resulting in the election of the office-bearers. Giving an opportunity of
hearing to the elected members in a dispute of this nature is imperative and not
a matter of mere procedure, formality or technicality. The election dispute,
therefore, must be adjudicated upon by a proper forum.”
8. He also cites the decision of this Court in P.R.Nallathambi v. Raghavan
reported in AIR 1973 MADRAS 25 at page 35, wherein it is among other things
observed that ‘… Order I Rule 8, C.P.Code 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 Order I, Rule 10, or in exercise of
its undoubted, inherent power under Section 151, C.P.Code.’
9. Further, the learned Counsel for the revision petitioner presses into
service the decision of this Court in Krishnan, S. v. Rathinavel Naicker
reported in 2007(2) CTC 73 at page 76, wherein it is held thus:
“15. 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.”
Further, in paragraph No.17, at page 77, it is observed as follows:
“17. 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 pendens. Therefore the above
list is only a broad statement of the principles that could be culled out from
judicial precedents.”
10. He also brings it to the notice of this Court the decision of the
Honourable Supreme Court in V.J.Thomas v. Pathrose Abraham reported in AIR 2008
SUPREME COURT 1503 at page 1504, wherein it is observed as follows:
“14. A litigant may execute a decree which was obtained for the benefit of
the people of the locality but if he intends to execute a decree which was
obtained for his own benefit, those who would be affected thereby should
ordinarily be made parties to the suit. Similarly, if a village pathway is the
subject matter of the suit on the premise that it is the personal property of
the plaintiff, those who use the said pathway or at least have lands adjacent
thereto should ordinarily be impleaded as parties. In the latter case, like the
present one, applying the legal principles, as noticed hereinbefore, we are of
the opinion that a decree which has been obtained by suppression of fact or
collusively would not be executable against those who were not parties to the
suit.”
11. Added further, the learned Counsel for the revision petitioner places
reliance on the decision of this Court in C.Shanmugam v. N.Radhakrishnan and
others reported in 1999 (1) CTC 542 at page 543, wherein it is held thus:
“7. It is true that even without the petitioner, the suit could be
entertained since the question to be decided in the suit is whether the
Resolution dated 3.7.1998 is valid or not. On that date, the petitioner did not
have any interest. It is only consequent to the vacancy that arose due to
suspension of the plaintiff and a Resolution had to be passed on 6.7.98 whereby
the present petitioner has been co-opted. It is therefore clear that the
petitioner is a person who is interested in the result of the suit and who will
also be affected by the decision. Eventhough, the suit could be decided without
him, he being the affected person, is entitled to come on record.”
12. He further invites the attention of this Court to the decision of this
Court in Tamil Nadu Electricity Board, Vellore v. A.Krishnan reported in 1997
(1) CTC 116, at page 126, wherein it is inter alia held that ‘… The courts
below, in my view, over-simplified the matter by observing that the plaintiff is
seeking for a declaration of his rights. As could be seen from the plaintiff’s
averments, the specific case is that by virtue of the defective manner of
implementation of the agreement entered into under section 18(1) of the
Industrial Disputes Act, juniors of the plaintiff have stolen a march over the
plaintiff and derived undue benefits to the detriment of the plaintiff and that
being the position, if the relief has to be granted and in this case actually
has been granted by the court below, necessarily the other parties, who were
said to be nearly 42 in number as per the claim of the defendant/appellant
projected even before the trial Court, will be seriously and adversely affected.
Such parties are therefore necessary and proper parties to the proceedings
before the Court. This is not a case where any validity of rule or a statutory
provision is alone being challenged, in which case only an exception had been
made that individual workers or employees or officers who may be affected need
not necessarily be made parties, but in a case of the nature where no such claim
was involved and the very claim is competing claim of seniority and rights,
based on such claim of seniority, inter se between various workers the other
workers, who, according to the plaintiff, have undeservedly stolen a march over
the plaintiff in the matter of seniority and further promotions, ought to have
been necessarily made parties to the suit and their absence renders the suit
itself bad for non-joinder of necessary parties. On this ground also, the suit
ought to have been dismissed.’
13. The learned Counsel for the revision petitioner draws the attention of
this Court to the decision of the Honourable Supreme Court in Anil Kumar Singh
v. Shivnath Mishra alias Gadasa Guru reported in (1995) 3 Supreme Court Cases
147 at page 149, wherein it is held as follows:
“7. By operation of the above-quoted rule though the court may have power
to strike out the name of a party improperly joined or add a party either on
application or without application of either party, but the condition precedent
is that the court must be satisfied that the presence of the party to be added,
would be necessary in order to enable the court to effectually and completely
adjudicate upon and settle all questions involved in the suit. To bring a
person as party-defendant is not a substantive right but one of procedure and
the court has discretion in its proper exercise. The object of the rule is to
bring on record all the persons who are parties to the dispute relating to the
subject-matter so that the dispute may be determined in their presence at the
same time without any protraction, inconvenience and to avoid multiplicity of
proceedings.
8. The question is whether the person who has got his interest in the
property declared by an independent decree but not a party to the agreement of
sale, is a necessary and proper party to effectually and completely adjudicate
upon and settle all the questions involved in the suit. The question before the
court in a suit for the specific performance is whether the vendor had executed
the document and whether the conditions prescribed in the provisions of the
Specific Relief Act have been complied with for granting the relief of specific
performance.”
14. Yet another decision of this Court in Kaliammal v. Karuppan and
others reported in (2001) 1 M.L.J 22 at page 25, is relied on by the learned
Counsel for the revision petitioner wherein it is laid down as under:
“20. The object of O.1, Rule 10(2), C.P.C is to bring about before the
court at the same time all the persons who are parties to dispute relating to
the subject-matter so that the dispute may be determined at the same time
without any delay or inconvenience and expenses of separate actions and trials.
By reason of such a power, the court places itself in a position of being able
to effectually and completely adjudicate upon and settle all the questions
involved in the suit. However, this provision is subject to the other
provisions including Sec.21 of the Limitation Act.”
15. He also cites the decision of this Court in K.Raghupathy v.
K.R.Panneerselvam reported in 2008 (4) TLNJ 215 (Civil) wherein it is held that
‘necessary parties are persons necessary to constitution of suit without whom
decree can not be passed and there must be a right to some relief against in
respect of matter involved in the suit.’
16. He further relies on the decision of this Court in V.Ravi @ P.V.Ravi
v. V.Balakrishnan and 10 others reported in 2009(1) CTC 411 wherein it is
observed that ‘… It is well settled principles of law that Court has wide co-
extensive power to implead any person at any stage of Suit as necessary party to
enable Court to effectively adjudicate questions involved in Suit and for
exercise of such power, Court has to come to a finding that a party is a
necessary party and party should not to be added as defendants merely because
they will be affected by orders of Court incidentally and proper question to be
addressed by Court is whether right of persons may be affected if they are not
arrayed as parties and only reason which makes him a necessary party to an
action is that he should be bound by result of action and question to be settled
must be question which cannot be effectively and completely settled unless he is
a party to case.’
17. The learned Counsel for the revision petitioner relies on the order of
this Court dated 18.08.2008 in C.R.P(PD)Nos.2527 to 2529 of 2008 and
C.R.P(PD)Nos.2601 of 2602 of 2008 [in which the third respondent (in
C.R.P(PD)MD.Nos.457 and 458 of 2009) has figured as the revision petitioner in
C.R.P(PD)Nos.2527 to 2529 of 2008] wherein at paragraphs 13 and 14, it is
observed as follows:
“13. Mr.R.Krishnamurthy, learned Senior Counsel, appearing for
Mr.N.S.Nanda Kumar for the revision petitioners in CRP (PD) Nos.2601 and 2602 of
2008, submitted that the Civil Revision Petitions filed under Article 227 of the
Constitution of India are legally maintainable, since they are aggrieved persons
of the impugned orders, but were not made as parties, though the respondents /
plaintiffs have raised specific allegations against them in the plaint, however,
without impleading them as parties to the suit, behind their back the
respondents / plaintiffs have obtained the impugned orders against the revision
petitioners herein, by adopting method of forum shopping, which is a clear abuse
of process of court and therefore, the Civil Revision Petitions filed by the
aforesaid petitioners, invoking Article 227 of the Constitution of India is
legally maintainable. The learned Senior Counsel contended that the impugned
orders have been passed without jurisdiction by the court below and without
impleading necessary parties, hence, the revision petitions in C.R.P(PD)Nos.2601
and 2602 of 2008 have been preferred. It was further contended that the
revision petitions have independent rights and they do not claim any right
through the other revision petitioner, namely the Diocese of Tirunelveli (CSI)
represented by its Bishop, the second respondent herein and second defendant in
the suit.
14. According to the learned Senior Counsel, by the earlier order, dated
30.04.2008 made in I.A.No.6990 of 2008, the court below had directed both the
parties to the suit to maintain status quo and therefore, factually, there was
no grievance for the revision petitioners, since the revision petitioners have
been elected and holding their respective posts, though they were not impleaded
as necessary parties. However, without any basis, the court below has exceeded
its jurisdiction and passed the impugned order, dated 21.07.2008 in I.A.No.9666
of 2008 against law and adverse to the rights and interest of the revision
petitioners, by directing the parties to maintain status quo ante prior to
21.12.2007 and that the order has been passed, even without impleading necessary
parties, namely the revision petitioners in C.R.P(PD)Nos.2601 and 2602 of 2008.
Only after knowing the adverse order passed against them, they preferred the
revision petitions, after obtaining leave from this Court. According to the
learned Senior Counsel, the only remedy available for the petitioners is filing
the revision petitions by invoking Article 227 of the Constitution of India. It
was further contended by the learned Senior Counsel that the respondents/
plaintiffs have raised specific allegations against the revision petitioners in
their plaint itself at paragraph number 12, however, they were not arrayed as
respondents/defendants in the suit. Suppressing the material facts, that there
are similar suits filed and pending before various courts in Tirunelveli
District and without impleading the necessary parties, by merely impleading the
first respondent at Chennai, who was nothing to do with the election dispute
filed the suit in the City Civil Court, Chennai and have obtained the impugned
orders from the court below, which has no jurisdiction.”
Further, he also places reliance on the observation made in paragraph No.45 of
the aforesaid order passed in the above Civil Revision Petitions which runs
thus:
“45. There is deliberate suppression of material facts by the
respondents/plaintiffs, apart from forum shopping and a total contradictory plea
for the alleged cause of action to file the suit, which leads to the inference
of fraud being played on the court below by the respondents/plaintiffs. The
impugned orders have been passed against the revision petitioners in
C.R.P.Nos.2601 and 2602 of 2008, though specific allegations were raised against
them by the respondent/plaintiffs in the plaint, but, without impleading them as
necessary parties, behind their back, hence, the order is affected by non-
joinder of necessary parties. There are materials available to show forum
shopping. In the light of the decisions referred to above, I am of the view
that the aforesaid impugned orders passed by the court below in I.A.No.6990 of
2008 and I.A.No.9666 of 2008 are expacie illegal and without jurisdiction and
fraud has been played on the part of the court below and therefore the affected
parties can maintain the revision petition by invoking Article 227 of the
Constitution of India, which is not legally precluded on the facts and
circumstances of this case. Therefore, the revision petitions in
C.R.P(PD)Nos.2529, 2601 and 2602 of 2008 are allowed and the impugned order,
dated 30.04.2008 and subsequent order dated 21.07.2008 passed in I.A.No.9666 of
2008 granting status quo ante on the date prior to 21.12.2007 are set aside. I
am of the considered view that Chapter IV Rule 3 of the Constitution of Diocese
of Tirunelveli is not applicable on the facts and circumstances, directing the
parties to maintain status quo, prior to 21.12.2007.”
18. Per contra, the learned Counsel for the respondents 1 and 2, submits
that the present suit in O.S.No.351 of 2008 on the file of the learned Principal
District Munsif, Tirunelveli, is not a suit questioning any election already
held and that earlier, the plaintiff in O.S.No.194 of 2007 on the file of the
learned District Munsif Court, Nanguneri, has filed a suit in a representative
capacity praying for the relief of declaration that elections held to the
pastoral Committees, Church Councils and Diocesan Council of the first defendant
Diocese held on 07.10.2007, 12.10.2007 and 20.10.2007 are null and void non-est
and not binding on the members of the first defendant Diocese and for appointing
a Commissioner / Election Committee to conduct fresh elections to the Pastorate
Committee, Church Councils, Diocesan Council, Executive Committees, Sub-
Committees, Office of Lay Secretary, Clerical Secretary and Vice Chairman of the
first defendant Diocese and for permanent injunction restraining the defendants
1 to 3, their men or agents from conducting any elections including the election
to the Executive Committee, Sub-Committee, Office of Lay Secretary, Vice
Chairman and Clerical Secretary of the first defendant Diocese and for permanent
injunction restraining the defendants 1 to 3, their men or agents from giving
effect to new appointments of correspondents to St.John’s College, Sarah Tucker
College, St.John’s Hr.Sec.School, Cathedral Hr. Sec. School, Florence Swaignson
Deaf and Dumb Hr. Sec. School, Sarah Tucker Teacher Training Institute of the
first defendant Diocese and that in I.A.No.739 of 2007 in O.S.No.194 of 2007, on
30.11.2007, an order has been passed by the learned Additional District Munsif,
Nanguneri, vacating the interim stay order dated 06.11.2007 and has issued the
following directions:
“1. There is no bar to conduct the next chain of election process which
has to be completed and the elected representatives have to be sent to Synod as
per the schedule by permitting the undisputed elected members (members from
undisputed election of Pastorate Committees and Diocesan Council) to exercise
their voting rights as per the provisions provided under the Constitution of
Diocese of Tirunelveli in further elections. The respondents are directed to
complete all the election process as early as possible.
2. In respect of the disputed election for the Pastorate Committees as
well as for the Diocesan Council Member from Nanguneri, Parapadi, Donavour and
other places and in respect of diocesan member elections disputes, the
petitioner has to submit representations before the election tribunal of Diocese
of Tirunelveli with all the relevant material evidence referred in the affidavit
within one month from the date of the order passed by this Court. The
respondent should consider the representation of the petition’s within two weeks
from the date of receipt of the representation and pass a speaking order based
on the merits of the representation placed before it.
3. In respect of the alleged violations about the election of Diocesan
workers in various places, the petitioner should raise their dispute before the
election tribunal of the Diocese within one month from the date of this order
and the election tribunal has to decide the violations after hearing all the
concerned parties and pass a speaking order.
4. In respect of 6 newly appointed Correspondents and employees under the
diocesan have not right to participate the present election process and they can
cast their voting right if any for the election coming from the next turn.
5. The above such direction is not applicable to any case is pending any
other courts in respect of election disputes.”
and on the basis of this order, the further elections have been held and a third
party has filed the C.R.P.No.1764 of 2007 before this Court and the same has
been allowed on 14.12.2007 setting aside the order passed by the learned
Additional District Munsif, Nanguneri, in I.A.No.739 of 2007 in O.S.No.194 of
2007 dated 30.11.2007 and that any person claiming right that he has been
elected by virtue of the order passed by the learned Additional District Munsif,
Nanguneri, in I.A.No.739 of 2007 in O.S.No.194 of 2007 dated 30.11.2007 must go
and hence, the respondents 1 and 2 (in C.R.P(PD)MD.Nos.457 and 458 of 2009) have
filed O.S.No.351 of 2008 on the file of the learned District Munsif,
Tirunelveli, praying for the relief of mandatory injunction directing the
defendant and his men and agents to hold further chain of elections to the
Church Councils, Diocesan Councils, recognizing the voting rights of the
representative of the Pastorate Committee throughout the Diocese including
Parapadi Pastorate as per the bye-law and for prohibitory permanent injunction
restraining the defendant and his men and agents from appointing, transferring
any Pastor in the Diocese, teaching and non-teaching staff in the educational
institution including Parapadi Pastorate without properly forming the respective
committees as per bye-law and that the revision petitioner claims that he has
been elected in pursuance of the order passed in I.A.No.739 of 2007 in
O.S.No.194 of 2007 dated 30.11.2007 and that he is not a necessary party in
I.A.Nos.1351 and 1352 of 2008 and that the trial Court has exercised its
discretion in refusing to allow the said I.A.Nos.1351 and 1352 of 2008 and that
the order passed by the trial Court in I.A.Nos.1351 and 1352 of 2008 are a
reasoned one and that they need not be interfered with by this Court at this
stage.
19. Continuing further, the learned Counsel for the respondents 1 and 2
submits that the respondents 1 and 2 herein are not parties in
C.R.P.(PD)Nos.2527 to 2529 of 2007. It is significant to make a mention that
the civil revision petitioner in C.R.P(PD)MD.Nos.457 and 458 of 2009 has figured
as the fourth petitioner in C.R.P(PD)Nos.2601 and 2602 of 2008.
20. Moreover, the learned Counsel for the respondents 1 and 2 brings it to
the notice of this Court that in I.A.No.629 of 2008 (filed under Order I Rule 8
of the Code of Civil Procedure), in O.S.No.351 of 2008, the Bishop has been
permitted to represent all the members of the Diocese.
21. The learned Counsel for the respondents 1 and 2, relies on the
decision of this Court in A.Shanmuga Sundara Pandia Nadar and another v.
P.S.R.Vivekanandan and others reported in 1991 (1) MLJ 105, at page 110, wherein
it is inter alia observed as follows:
“14. Learned Counsel for the third respondent raised a preliminary
objection as to the maintainability of the application in the court below as
well as this revision petition in this Court. According to the learned Counsel
for the third respondent, the application in the court below was vitiated by
non-joinder of necessary parties, viz., the Commissioner and the newly elected
members of the Administrative Council. According to him, the application before
the court below to declare the election as null and void was akin to an election
petition under the Representation of People Act, the Panchayats Act or the
District Municipalities Act and without impleading the successful candidates,
the petition was wholly unsustainable. It was argued that the impleading of the
Commissioner as a party to the Revision Petition would not improve the situation
and the non-joinder of the successful candidates in the revision petition would
be sufficient to dismiss the same as not maintainable. On the merits, learned
Counsel for the third respondent contended that the Commissioner was entitled to
ignore the order of injunction granted by Sub Court, Madurai as it was null and
void. According to him, the election was being held in pursuance of the terms
of the compromise decree and in accordance with the directions given by the Sub
Court, Tirunelveli, and no member of the Sangam was entitled to approach any
other Court for injunction and the entire proceeding was mala fide and an abuse
of process of Court. He has also stated that the proceedings in the other
courts were really engineered by the petitioners herein, who are keen on
clinging on to the office as long as possible. Learned counsel for the third
respondent also submitted that the Commissioner was right in rejecting the claim
made by the 278 members as trader members. Thus, learned counsel contended that
the order of the court below is unassailable in having accepted the contention
put forward by the respondents.”
22. He also cites the decision in Tansukhlal and 4 others v. Smt.Vinita
and 8 others reported in 2000(II) CLT 27 wherein it is held that ‘the trial
Court should be left with discretion to come to conclusion as to which is
necessary party to be impleaded in suit for finding out truth for adjudication
of issues in controversy, without eclipsing its jurisdiction on anticipation of
averments and by addition of parties not compulsively necessary, there is
possibility of widening of dimensions of issues in controversy which may give
rise to the multiplication of issues to be adjudicated.’
23. Another decision of this Court in Antony Devaraj and another v.
Aralvaimozhi (Kurusadi) Devasahayam Mount Oor and Thuya Viagula, Annai Church,
rep. by the Trustee and others reported in 2004(2) CTC 183 is relied on the side
of the respondents 1 and 2, wherein the guidelines in regard to the application
of Order 1, Rule 10(2) of the Code of Civil Procedure have been summarized as
follows:
“(a) Plaintiff may choose to implead only persons against whom he wishes
to proceed with and Court may add any other party if such party is necessary
party to enable Court to effectually and completely adjudicate questions
involved in suit; (b) Necessary party is one without whom no order can be
effectively made and proper party is one whose presence is necessary for
complete and final decision of question involved in proceedings; (c) Person to
be added as party must be one whose presence is necessary as party and he had
relevant evidence to give on some questions involved and he becomes necessary
witness; (d) Third party cannot be considered necessary party for deciding main
issue framed in suit; (e) Court can suo moto in fit case implead new party as
defendant but Court cannot implead person who is neither necessary nor proper
party; (f) If question in issue between parties can be worked out without anyone
else being brought in strangers should not be added as party; (g) Plaintiff is
dominus litis and he is best Judge of his own interest and it should be left to
him to choose his opponents; (h) Person need not be added merely because he or
she would be incidentally affected by judgment; (i) Persons whose interest would
be affected by litigation or entitled to come on record to protect their
interest when such interest are jeopardized by person already on record and
persons who sought to be impleaded in their capacity as former office bearers
cannot sustain their application as suit already filed is representative
proceedings and in interest of Oor committee and Village.”
24. Further, the learned Counsel for the respondents 1 and 2 also cites
the decision of the Honourable Supreme Court in Binayak Swain v. Ramesh Chandra
Panigrahi and another reported in 1996(3) SCR 24 wherein it is laid down thus:
“The principle of the doctrine of restitution is that on the reversal of a
decree the law imposes an obligation on the party to the suit who received the
benefit of the erroneous decree to make restitution to the other party for what
he has lost. The Court in making restitution is bound to restore the parties so
far as they can be restored to the same position they were in at the time when
the Court by its erroneous action had displaced them from.”
25. He further presses into service the decision of this Court in All
India Anna Dravida Munnetra Kazhagam v. State Election Commissioner reported in
2007(1) CTC 705 at page 837, wherein at paragraph No.252, it is held as follows:
“252. A submission was made on behalf of the respondents that in the
absence of all the candidates, and particularly the successful candidates, such
election could not have been set aside in respect of all the wards. The
decision of the Supreme Court in Avtar Singh Hit v. Delhi Sikh Gurudwara
Management Committee, 2006 (8) SCC 487, has been relied upon in support of the
contention that in the absence of elected representatives, no such dispute
should be decided.
In my considered and humble opinion, the ratio of the said decision may
not be applicable to the peculiar facts situation of the present case. All the
Writ Petitions had been filed as public interest litigations. It is of course
true that five of the Writ Petitions were filed by the political parties whose
candidates were contesting in the election. However, other petitions had been
filed either by the candidates or even citizens who cherish democratic value. A
free and fair election has been held to be a basic principle of democracy and
democracy is considered to be a basic structure of the Constitution. The
purport of the petitions was to ensure free and fair poll. The duty was upon
the Election Commission and other officials to ensure such free and fair poll.
Such officials were before the Court. All the Writ Petitions had been filed at
a stage when results were yet to be announced. These public interest litigations
cannot be equated with Election Petitions under the statutory provisions, which
require that all candidates should be impleaded. At the time when the petitions
were filed counting had not begun. Subsequently when counting was permitted to
be undertaken, it was specifically indicated that declaration of results would
be subject to the decision in the Writ Petitions. In fact under a specific
direction of this Court, in the certificates in favour of the successful
candidates, it has been so indicated. Therefore, all the successful candidates
knew that their election as Councillors was in peril being subject to the result
of the Writ Petitions. Keeping in view the peculiar nature of the case and the
main purpose of filing the public interest litigations which was to ensure free
and fair election, it cannot be said that in the absence of the candidates or
even the successful candidates, the Writ Petitions were hit by the principle of
non-joinder of necessary parties.”
26. At this stage, the learned Counsel for the revision petitioner
contends that the relief sought for in the suit in O.S.No.351 of 2008 on the
file of the learned District Munsif, Tirunelveli, by the respondents 1 and
2/plaintiffs is likely to be made binding on the revision petitioner and that
the ultimate outcome of the suit proceedings will likely affect the revision
petitioner and therefore, he is not only a proper but also a necessary party to
the suit in O.S.No.351 of 2008 as well as in the injunction application in
I.A.No.630 of 2008 in O.S.No.351 of 2008 and therefore, the civil revision
petition has to be allowed in furtherance of substantial cause of justice.
27. It is to be borne in mind that where complete and effective relief can
be obtained by a litigant, then it is not necessary to join any other party, in
the considered opinion of this Court. It is needless to say that a necessary
party is one without whom no order can be made effectively and a proper party is
one in whose absence, an effective order can be made, but whose presence is
necessary for complete and final decision of the question involved in the
proceeding.
28. In reality, the respondents 1 and 2/plaintiffs being the dominant lite
cannot be directed to implead the persons against whom no relief is sought for
in the suit.
29. As far as the present case is concerned, since the order issuing
directions in I.A.No.739 of 2007 in O.S.No.194 of 2007 dated 30.11.2007, passed
by the learned Additional District Munsif, Nanguneri, has been set aside by this
Court in C.R.P.No.1764 of 2007 dated 14.12.2007, the subsequent election which
has been conducted is only a non-est in the eye of law and (as a matter of
prudence, one cannot brush aside an important fact that the revision petitioner
claims only to have been elected in pursuance of the order in I.A.No.739 of 2007
in O.S.No.194 of 2007) and that the parties are relegated to original position
as on the date of filing of the suit in O.S.No.194 of 2007 and inasmuch as
I.A.No.629 of 2008 in O.S.No.351 of 2008 filed under Order 1 Rule 8 of the Code
of Civil Procedure has been allowed by the trial court whereby, the Bishop has
been permitted to represent all the members of the Diocese, this Court is of the
considered view that the revision petitioner is not a proper and necessary party
and moreover, the revision petitioner cannot be added as a party merely because
he will be affected by the judgment or orders of the Court incidentally and
indeed, the revision petitioner has no enforceable legal right and that even in
the absence of the revision petitioner, the trial Court can effectively
adjudicate upon the controversies/disputes involved in the suit and in that view
of the matter, the exercise of judicial discretion by the trial Court in
refusing to allow the said I.A.Nos.1351 and 1352 of 2008 cannot be found fault
with and consequently, the present Civil Revision Petitions fail and the same
are hereby dismissed leaving the parties to bear their own costs. Resultantly,
the connected Miscellaneous Petition is closed.
rsb
To
1.The Principal District Munsif, Tirunelveli