Sivaram vs Gananajyothi on 5 December, 2008

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Madras High Court
Sivaram vs Gananajyothi on 5 December, 2008
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 5.12.2008
CORAM

THE HONOURABLE MR.JUSTICE S.RAJESWARAN

	    C.R.P.(PD) No.2536 of 2008 and M.P.No.1 of 2008


1. Sivaram
2. D.Ramjee			       			    ...    Petitioners

Vs
1. Gananajyothi
2. Silambuselvan
3. Durai Ezhilan

4. Aruna Higher Sec. School,
    Eraiyur, rep. by its
    Secretary,
    Eraiyur, Thittakudi Taluk.

5. Aruna Higher Sec. School 
    Managing Association,
    Rep. by its Secretary,
    Eraiyur, Thittakudi Taluk.  	     		     ...   Respondents
	
	This Civil Revision Petition is filed under Article 227 of Constitution of India, against the Order dated 08.07.2008 made in I.A.No.736 of 2005 in O.S.No.161 of 2004 on the file of the Principal Sub Judge, Virudhachalam.		
		For Petitioners 	    :  Mr.S.R.Rajagopal

		For Respondents      :  Mr.G.Sundaram

					 *****
				         O R D E R

This Civil Revision Petition is filed against the Order dated 08.07.2008 passed in I.A.No.736 of 2005 in O.S.No.161 of 2004 on the file of the Principal Sub Judge, Virudhachalam.

2. The third parties in I.A.No.736 of 2005 in O.S.No.161 of 2004, are the revision petitioners before this court. They are aggrieved by the order of the trial court dated 8.07.2008, impleading them as defendants 4 and 5 in the suit in O.S.No.161 of 2004.

3. The respondents 4 and 5 herein, as plaintiffs, filed O.S.No.161 of 2004 against the respondents 1 to 3 herein, for a declaration to declare their absolute right to the suit property, after declaring that the sale deed dated 16.8.1999 executed by the second plaintiff in favour of the defendants 1 and 2 is null and void and for recovery of possession of the suit property free from obstruction of the defendants. They also prayed for a decree for a sum of Rs.75,000/- towards the mesne profit and Rs.25,000/- towards damages with future mesne profits payable by the defendants.

4. The case of the plaintiffs in O.S.No.161 of 2004 is that, the suit property is a landed property situated in Gudalur village which is adjacent to Eraiyur Village. When the School was planned for the benefit of the villagers living nearby, the Government by order dated 14.8.1975, placed at the disposal of the second plaintiff, lands measuring 4.64 acres for construction of a high school building. This area of 4.64 acres is for building, play ground, open area, etc. The school later became a Higher Secondary School. There was a meeting on 7.3.1989 of the association and at that time, the suit property situated at the immediate west of the school ground came for sale and except this land, there is no other lands for the school to purchase. Hence, it was unanimously resolved to purchase the suit property in the said meeting and by borrowing money, the suit property was purchased by the second plaintiff on 19.9.1989 for a valid consideration. At that time, the third defendant/third respondent herein was a teacher working in the school. But for the purchase of the suit property, the land possessed by the School would have been less than 5 acres (i.e. 4.64 acres) and as per the rules framed under the Tamilnadu Recognised Private Schools Regulation Act 1973, any school to have recognition, should have atleast not less than 5 acres for playground, excluding the land occupied for the building portion. The third defendant/third respondent herein became the Headmaster of the school in 1989 and he was having an eye over the suit property. It is now learnt by the plaintiffs that there was a meeting of the Association in the presence of the third defendant/third respondent herein on 7.11.1998. The same was not a validly convened meeting and any decision taken in that meeting is void. In that said meeting, a resolution was said to have been passed authorising the Managing Director of Aruna Sugars Ltd. to sell the suit properties. Such a resolution is wholly invalid as the Managing Director of Aruna Sugars has no authority to deal with the land. Further, the School should possess 5 acres of land and no property of a private school shall be transferred by way of sale except with previous permission in writing of the competent authority. On the basis of the illegal resolution, a sale has taken place on 16.8.1999 executed by the second plaintiff Secretary in favour of the defendants 1 and 2/ respondents 1 and 2 herein. It is alleged in the plaint that the sales is devoid of any consideration. A fraud has been committed by the defendants/ respondents 1 to 3 herein and unfortunately, the Secretary of the Association has been a willing party to the unlawful Act. On 4.10.1999, the management of the school was taken over by ThiruM.Arumugam and he became the President. To his surprise, he found that the Government was likely to withdraw the recognition, as the school after the illegal and void sale, has been deprived of the minimum required land. He also found that several illegalities and irregularities have taken place during the tenure of the third defendant/third respondent herein as Headmaster. So, it has been resolved to initiate disciplinary proceedings against the third defendant/third respondent herein and out of the charges framed against him, one of the charges is, the illegal purchase of the suit property in the name of his wife and son who are defendants 1 and 2/respondents 1 and 2 herein. The third defendant/third respondent was also suspended from service and after a fullfledged enquiry, the charges were found to be proved, resulting in his dismissal. The plaintiffs, on 6.5.2004, approached the Director of School Education to revoke the impugned sale which has taken in the name of defendants 1 and 2 and the Joint Director by letter dated 17.9.2004, referred to Sec.31(1) of the Tamilnadu Recognised Private Schools Regulation Act and instructed the plaintiffs to take action before the Civil Court to declare the sale as null and void. Hence, the plaintiffs/respondents 4 and 5 herein filed the suit i.e., O.S.No.161 of 2004 for the aforesaid reliefs.

5. The first defendant/first respondent herein filed a written statement denying the allegations levelled in the plaint and the suit is being contested. Pending suit, the defendants/respondents 1 to 3 herein filed I.A.No.736 of 2005 under Order I Rule 10(2) C.P.C. to implead the revision petitioners/third parties as defendants 4 and 5 in the suit. In the affidavit filed in support of I.A.No.736 of 2005, it is stated by the defendants in the suit that as per the resolution dated 7.11.1998, authorisation was given to the first revision petitioner herein to sell the property. Thereafter, the second revision petitioner was elected as the Secretary of the Association. A sale consideration of Rs.1,50,000/- was fixed and the same was paid by the defendants to the second revision petitioner herein. Only thereafter, the sale deed was executed on 16.8.1999 and the same was registered on 19.8.1999. Therefore, the revision petitioners, who are the President and Secretary of the Association at the time of executing the sale deed, are proper and necessary parties to be impleaded in the suit. Hence, they have filed I.A.No.736 of 2005 for the aforesaid reliefs. This impleading application was resisted by both the plaintiffs in the suit as well as the third parties. The trial court by order dated 8.7.2008 allowed I.A.No.736 of 2005 and impleaded the revision petitioners as defendants 4 and 5 in the suit and aggrieved by the same, the above revision petition has been filed under Article 227 of the Constitution of India by the impleading parties.

6. Heard the learned counsel for the revision petitioners and the learned counsel for the respondents 1 to 3 and I have also gone through the documents and judgments filed by them in support of their submissions.

7. The learned counsel for the revision petitioners submits that the revision petitioners are neither necessary nor proper parties to be impleaded in the suit and considering the relief prayed for in the suit, no decree could be passed against them and the suit could be disposed of on merits without their presence. If at all, some clarifications are necessary with regard to their involvement in the impugned sale, they could be summoned as witnesses and therefore, the trial court has committed an illegality in impleading them as defendants in the suit. In support of his submissions, the learned counsel for the revision petitioners relied on the following decisions:

1. A.I.R. 1958 SC 886 (Razia Begum Vs Sahebzadi Anwar Begum and others)

2. A.I.R. 1968 MAD 287 (Firm of Mahadeva Rice and Oil Mills and others Vs Chennimalai Goundar)

3. A.I.R. 1977 Goa 4 (Gonsalo De Filomena Luis, etc. Vs Inacio Piedade Hildeberte Fernandes and others)

4. A.I.R. 1988 Vol. 79 (Ker) (M/s.National Spices Vs Andhra Bank, Ernakulam)

8. Per contra, the learned counsel for the respondents 1 to 3/defendants 1 to 3 submits that considering their involvement in the impugned sale, the revision petitioners are alteast proper parties in the suit and the trial court has rightly adverted to the facts and impleaded them as defndants in the suit. He relied on a decision of the Supreme Court reported in A.I.R. 1971 SC 761 (Jugraj Singh Vs Jaswant Singh).

9. I have considered the rival submissions carefully with regard to facts and citations.

10. As per Order I Rule 10(2) C.P.C., the court may, at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the court, to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added.

(1) In A.I.R. 1958 SC 886 (cited supra), the majority of the Judge of the Hon’ble Supreme Court held as under:

“13. As a result of these considerations, we have arrived at the following conclusions:

(1) That the question of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code;

(2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation;

(3) Where the subject-matter of a litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy;

(4) The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Sections 42 and 43 of the Specific Relief Act;

(5) In cases covered by those statutory provisions, the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission;

(6) The result of a declaratory decree on the question of status, such as in controversy in the instant case, affects not only the parties actually before the court, but generations to come, and in view of that consideration, the rule of present interest, as evolved by case law relating to disputes about property, does not apply with full force; and
(7) The rule laid down in Section 43 of the Specific Relief Act, is not exactly a rule of res judicata. It is narrower in one sense and wider in another.”

(2) In A.I.R. 1968 MAD 287 (cited supra), this court held that court has no jurisdiction to add a party unless the party is necessary or proper party. The relevant portion reads as under:

“2. A proper party is one without whose presence the question in the suit cannot be completely and effectively adjudicated upon. If he is neither a necessary party nor a proper party, the Court has no jurisdiction to add him as a party. Now that the lower Court has held that the vendor of the plaintiff is not a necessary party, it is for consideration whether he is a property. If he is not, the lower Court erred in exercising jurisdiction which it has none by impleading the vendor, its order would be, therefore, subject to my revisional jurisdiction.

(3) It is an essential prerequisite for one to be made a party that should have a subsisting interest in the subject-matter of the suit. Ramamurthi, J. Had occasion to consider exhaustively the implications of O. I R.10, C.P.C. In Krishnamachari Vs Dhanalakshmi Ammal (1966) 2 Mad LJ 298 = (AIR 1968 Mad 142). The learned Judge observed that the interest that is necessary to make a person a party is legal interest including equitable interest, that is, an interest which law would recognise and uphold. Thus, the sine qua non for any person being impleaded to an already pending lis is that he or she should have a direct or tangible interest in the subject-matter. A mere convenience or benefit which might possibly result too a party applicant by adding another party to the pending suit is not the test to be applied. Avoidance of multiplicity of legal proceedings is no doubt a salient rule. Such avoidance must be in relation to the lis in question and cannot embarass all possible conceivable litigation that the parties may indulge in later which are totally unconnected with the main issues in the suit. Another infallible test is that a new party can be added in order to decide all questions arising in the suit or involved in the suit. If, therefore, such questions can be decided without the proposed party, the judicial discretion vested in Court to implead parties under O.I R.10(2), C.P.C. ought not to be exercised; if so exercised, it would amount to a patent exercise of jurisdiction when it is not there. In Rasia Begum V Anwar Begum, 1959 SCR 1111 = (AIR 1958 SC 886), their Lordships of the Supreme Court held that the interest which the proposed party shall have in the suit to enable him to be impleaded therein, should be a direct interest and not a commercial interest. What is sought to be done in this case is that the plaintiff who has instituted a suit for partition of the suit property which is alleged to be in the joint possession of the respondent and the petitioners, applies for impleading his vendor who was originally the co-sharer in the property along with the petitioners. It cannot be said that, without the presence of the vendor of the plaintiff the issues arising in the suit and all questions involved therein cannot be decided satisfactorily. No question of avoidance of multiplicity of suit arises. The vendor has neither a direct or commercial interest in the list. It is significant to note that the petitioners are not disputing the sale or the share of the plaintiff in the suit property consequent upon such a sale. Indeed, no relief is asked for against the proposed party.

4. In such circumstance, the main question that arises for determination is, whether the vendor of the respondent who has been directed to be added as a proper party by the lower Court can be considered to have been so added legally. In re. Ibrahim Haji, AIR 1957 Mad 699, Ramaswami J. Held as follows:

“Order I Rule 10(2), C.P.C. confers wide discretion to the Court to meet every case of defect of parties but is subject to two limitations, viz., (1) that the Court has no power to join a person as a party if he could not have been originally impleaded under O.I Rule 1 or R.3 C.P.C. and (2) that the presence of the person added must be necessary to effectually and completely adjudicate upon and settle all points involved in the suit if persons who are sought to be impleaded have no subsisting right over the properties and they are sought to be impleaded only for the purpose of getting their evidence, and it would not be proper to make them parties to the suit and that the petitioner’s apprehension that they would be driven to the necessity of filing a separate suit against these persons is not a sufficient justification to compel the plaintiff to implead them as parties to the suit.”

(3) In A.I.R. 1977 Goa 4 (cited supra), it was held as under:

“3. The question for my determination is, whether “the Intervenor” was a proper or necessary party to the present suit. The law on the subject can be formulated from the decisions in Firm of Mahadeva Rice and Oil Mills Vs Chennimalai Gounder, AIR 1968 Mad 287, Banarsi Dass Durga Prashad Vs Panna Lal Ram Richhpal Oswal, AIR 1969 Punj. & Har 57, (1892)1 Ch.487, Foll. & AIR 1958 A.P. 195, Ref. (sic). The principles governing the powers of the Court under O. 1, R. 10 of C.P.C. are: As a rule the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition. The reason is that the plaintiff is the “dominus littis”. He cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief. The word ‘may’ in sub rule (2) imports a discretion, the Courts will invariably take into account the wishes of the plaintiff before adding a third person as a defendant to his suit. Under sub-para. (2) of Order 1, Rule 10, a person may be added as a party to a suit in two cases only, i.e., when he ought to have been joined and is not so joined, i.e. when he is a necessary party, or, when without his presence the questions in the suit cannot be completely decided. There is no jurisdiction to add a party in any other case merely because that would save a third person the expense and botheration of a separate suit for seeking adjudication of a collateral matter, which was not directly and substantively in issue in the suit into which he seeks intrusion. A person may not be added as a defendant merely because he would be incidentally affected by the judgment. The following tests may be formulated usefully as a guidance in the case of adding of parties, under Order I, Rule 10, C.P.C.; (1) If, for the adjudication of the “real controversy” between the parties on record, the presence of a third party is necessary, then he can be impleaded; (2) It is imperative to note that by such impleading of the proposed party, all controversies arising in the suit and all issues arising thereunder may be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject-matter which could still have been decided in the pending suit itself; (3) The proposed party must have a defined, subsisting, direct and substantive interest in the litigation which interest is either legal or equitable and which right is cognisable in law; (4) Meticulous care should be taken to avoid the adding of a party when the addition is intended merely as a ruse to ventilate certain other grievances of one or the other of the parties on record which is neither necessary or expedient to be considered by the Court in the pending litigation; and (5) It should always be remembered that considerable prejudice would be caused to the opposite party when irrelevant matters are allowed to be considered by Courts by adding a new party whose interest has no nexus to the subject-matter of the suit.”

(4) In A.I.R. 1988 NOC 79 (Ker) (cited supra), the Kerala High Court has held as under:

“When a person is sought to be impleaded against the will of the plaintiff who is to control the litigation, what the court has mainly to look is whether there is anything in the suit which cannot be determined on account of his absence in the party array or whether there will be prejudice by his not being added. The wording in O.1, R.10(2) are “whose presence before the court may be necessary in order to enable the court effectively and completely to adjudicate upon and settle “all the questions involved in the suit”. ‘Questions involved in the suit are only questions as between the plaintiff and the defendants and not questions that may arise between plaintiffs and third parties or defendants and third parties unconnected with the plaint cause of action and relief. Impleading should be had where it is really necessary for a complete adjudication of the questions involved in the suit and to avoid multiplicity of proceedings. On the mere ground that the addition of parties may save third party or the defendant from expenses of a separate litigation, the subject of which is not directly or substantially the subject matter of the pending litigation impleading cannot be had A.I.R. 1983 NOC 139 (Ker), 1986 Ker LT 406, AIR 1976 A.P. 182 and AIR 1970 Raj 167 (FB) Ref.”

(5) In A.I.R. 1971 SC 761 (cited supra), the Hon’ble Supreme Court, in the facts and circumstances of that case, found that the mortgagor’s son in that case, though not a necessary party, but, is a proper party.

11. In the light of the above judgments, now, let me consider the facts of the present case to consider whether the revision petitioners are necessary and proper parties to be impleaded in the suit.

12. O.S.No.161 of 2004 has been filed to declare the title of the plaintiffs to the suit schedule property after declaring the sale deed dated 16.8.1989 executed in favour of the defendants 1 and 2 as null and void and also for recovery of possession of the suit property. The case of the plaintiffs is that, the sale said to have been executed is void abinitio. To decide this issue, the revision petitioners are neither necessary nor proper parties and in fact, no relief is claimed against the revision petitioners. But, the contention of the respondents 1 to 3 herein is that, the revision petitioners were holding the position of President and Secretary of the Association during the relevant time of sale and in fact, the sale deed was executed by the Association represented by the second revision petitioner in his capacity as Secretary. The respondents 1 to 3 herein in the written statement filed in the suit, have stated that the revision petitioners ought to be impleaded in the suit. They further stated in the written statement that if it is established that the amount paid by the defendants is not properly appropriated, the defendants in the suit could recover the amount from the revision petitioners in the suit itself without filing another suit. Therefore, according to the respondents 1 to 3 herein, the revision petitioners ought to be impleaded in the suit. The same reason was reiterated by the respondents 1 to 3 herein in the affidavit filed in support of I.A.No.736 of 2005.

13. I am of the considered view that these reasons are not sufficient and in fact, they are not relevant for impleading the revision petitioners as defendants in the suit.

14. While deciding the question of adding certain parties in the suit, the court should find whether the relief prayed for in the suit or the lis involved in the suit could be decided without the addition of the impleading parties. If the answer is ‘yes’, the parties need not be impleaded as it is settled law that the plaintiffs as dominus litus could decide against whom he/she could file the case. As rightly pointed by the learned counsel for the revision petitioners, if clarifications are necessary with regard to the involvement of the revision petitioners in the impugned sale, they could be summoned as witnesses and the trial court is wrong in impleading them as defendants in the suit.

15. Therefore, I am inclined to interfere with the order passed by the trial court and accordingly, I.A.No.736 of 2005 is dismissed.

16. In the result, the Civil Revision petition is allowed. No costs. Connected miscellaneous petition is also dismissed.

5.12.2008

Index: Yes/No
Internet:Yes/No
vaan
To
The District Munsif, Sirkazhi

S.RAJESWARAN,J
vaan

Pre-Delivery Order in
C.R.P.PD.No.2536 of 2008
and M.P.No.1 of 2008

05.12.2008

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