The Kancheepuram-Thiruvallur vs Mahabhoosa Begam on 8 October, 2009

Madras High Court
The Kancheepuram-Thiruvallur vs Mahabhoosa Begam on 8 October, 2009
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.10..2009

CORAM:

THE HONOURABLE MR. JUSTICE R.SUDHAKAR

C.R.P.(PD) No.2697 of 2009
and
 M.P.No.1 of 2009

.......



The Kancheepuram-Thiruvallur
District Co-operative
Milk Producers' Union Ltd.,
rep. By its General Manager                                          ...Petitioner

                                                 Vs.

Mr. Nawabzxada Nawab Ali Khan(died)

1.Mahabhoosa Begam
2.Fiscal Mohammed Khan
3.Mr. Begn Mohammed Khan

4.The Tamilnadu Wakf Board,
rep. By its Secretary,
No.3, Santhome High road,
Chennai.4.

5. Soorsha Makkan Wakf,
 rep. By its Muthawalli,
 having office at 
    17 Venkatesan Street,
 Chedpauk, Chendnai.5. 		  		       ... Respondents


Prayer:     Petition filed under Article 227 of the Constitution of India against the order dated 03.8.2009 in I.A. No. 10094 of 2009 in   O.S.No. 4555 of 2000 on the file of the I Asst. Judge, City Civil Court, Chendnai.   

                  For Petitioner          : Mr. K. Tamilvendan

		For respondents     : Mr. AR.L.Sundaresan
						Sr. Counsel
						      for
					     Mrs. A.L. Ganthimathi R1- R3
				             Mr. V. Lakshminarayanan  R4
					     Mr. A. Ajmath Begum - R5
                                             

					O R D E R

This revision petition is filed by the Co-operative Society aggrieved by the order dated 3.8.2009 passed by the first Assistant Judge, City Civil Court, Chennai, dismissing the petition filed by the revision petitioner to implead him as a party/third respondent in O.S.No. 4555 of 2000.

2. The suit O.S.No. 4555 of 2000 has been filed by Nawabzxada Nawab Ali Khan, plaintiff, who subsequently died and his legal representatives have been brought on record as plaintiffs. The plaint is filed under Section 6 of the Wakf Act r/w Order VII, Rule 1 of C.P.C. The relief sought for in the suit is as follows:-

a) Declaring that the suit properties are not the wakf properties;

b) Consequently directing the first defendant to denotify and delete the suit properties from the proforma schedule of the properties of the third defendant and also from the records of the first defendant;

c) directing the defendants to pay the costs of the suit, and

d) granting any other relief or reliefs .

The suit is resisted by the Tamil Nadu Wakf Board, who is the first defendant/R5 and the Muthavalli R4/ second defendant in the suit.

3. At the time of trial, the revision petitioner filed I.A.No. 10094 of 2009 to implead the society as third defendant stating that they are the owners and necessary party. It is pertinent to note that the suit was originally filed in the year 2000 and was decreed on 26.2.2003 and that decree was set aside in CRP Nos. 1717 and 3808 of 2003 by an order dated 4.3.2009 and remanded for trial afresh. At that stage, the present I.A. has been filed. The grievance of the revision petitioner before trial Court is that the petitioner Milk Producers Union is the absolute owner of the property in SR No.193/3 to an extent of 33 cents having purchased the same in the year 1960. The Petitioner Union has right to participate in the suit proceedings as the suit schedule includes the property of the revision petitioner. The said application was objected to by the plaintiff and the other respondents, who are defendants in the suit. By an order dated 3.8.2009, the Court below rejected the revision petitioner’s plea for impleading them as a party third defendant. After referring to the pleadings on either side, the Court below posed a question as to the interest of the revision petitioner for impleading themselves in the suit proceedings and what is their locus standi to agitate their claim in the suit. The Court below has observed as follows:-

” Now what is to be decided in the suit is the title of the plaintiff to the suit property and also the nature of the suit property as to whether it is the absolute property of the respondent/plaintiff or notified wakf properties belonging to Tamil Nadu Wakf Board. In a case of this nature, the proposed party cannot be granted any relief with regard to his title and he has to come by way of separate suit relating to the relief prayed by him. Therefore, the proposed party do not come within the purview of necessary party or a proper party. Hence, this point is answered accordingly.”

4. Learned counsel for the revision petitioner relied upon the suit schedule and stated that the SR.No. 193/3 measuring 33 cents is also the subject matter of the suit and therefore, their interest will be very much affected in the suit between the plaintiffs and the defendants.

5. On the contrary, Mr. AR.L.Sundaresan, learned senior counsel appearing for the respondents 1 to 3 / Plaintiffs 1 to 3 submitted that the nature of the relief sought for in the suit is to declare that the suit properties are not wakf properties and denotify and delete the suit properties from the proforma schedule issued by the Tamil Nadu Wakf Board/first defendant. The notification has been issued by the Wakf Board in the year 1929 where the SR.No. 193/3 measuring 33 cents does not find place. Therefore, the counsel for first defendant/4th respondent stated that in a suit challenging the proforma issued by the first defendant, the revision petitioner has no right or say in the lis between the parties. He relied upon the decision reported in Razia Begum Vs. – Sahebzadi Anwar Begum and Others (AIR 1958 SC 886).

6. While a party seeks to implead himself as a party to the suit, the same has to be considered in the light of the provisions of the Order I, Rule 10(2) of CPC, which reads as follows:-

“10(2) court may strike out or add parties:- 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. ”

7. The Apex Court , in the decision cited above, while considering the scope of Order I, Rule 10 of CPC would summarise the position with regard to adding a party to a litigation in the following manner:-

” It is no use multiplying references bearing on the construction of the relevant rule of the Code, relating to addition of parties. Each case has to be determined on its own facts, and it has to be recognised that no decided cases have been brought to out notice, which can be said to be on all fours with the facts and circumstances of the present case. There cannot be the least doubt that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to movable or immovable property. In the instant case, we are not concerned with any controversy as regards property or estate. Hence, all the cases cited at the bar, laying down that person, who has no present interest in the subject-matter, cannot be added, are cases which were concerned with property rights. In this case, we are concerned primarily with a declaration as regards status which directly comes under the provisions of S.42 of the Specific Relief Act.”

It has been further held in paragraph 13 of the said decision as follows:-

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

(1) That the question of addition of parties under R.10 of O.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 S.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 Ss.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;”

8. The only reason stated by the revision petitioner to implead himself as a party third defendant in the suit is that the Union is the absolute owner of the property in SR.No. 193 /3 consequent to the document executed in their favour and that will give right for the Union to implead themselves in the suit filed by the plaintiff challenging proforma notice and to declare the property as not the wakf property.

9. The lis is between the plaintiffs and the wakf board with regard to the nature of the suit property viz., whether the property is a wakf property or privately owned property of the plaintiff. The nature of the suit proceedings in O.S.No. 4555 of 2000 will have no bearing with regard to the claim of the revision petitioner, which is totally independent, based on the document of title. The revision petitioner is no way concerned with the nature of the lis between the plaintiff and the Defendants 1 and 2. The Court below is called upon to adjudicate the suit as to whether the suit property is the absolute property of the plaintiffs or that of the wakf . In that suit, no relief can be granted in favour of the third party revision petitioner. If there is a claim by the revision petitioner, it is for them to agitate the same by a separate proceedings in the manner known to law. In any event, the result of the suit in O.S.No. 4555 of 2000 will have no bearing with regard to the right, title and interest of the revision petitioner and therefore, they cannot be said to be directly interested in the outcome of the suit and consequently, the Court below was justified in rejecting the application. If the revision petitioner has got any right, they are entitled to establish the same as against any of the parties independently and therefore, they cannot be added as a defendant in the present suit.

10. Considering the above facts and circumstances and in view of the decision cited supra, I find no illegality or infirmity in the order of the Court below to interfere with the same. Finding no merits, this civil revision petition is dismissed. Consequently, M.P.Nos. 1 and 2 of 2009 are also dismissed. No costs.

ra

To

The I Assistant Judge,
City Civil Court,
Chennai

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