The revision has been filed by the third party to the suit, challenging the order passed in I.A.No.1206 of 2007 dated 07.08.2008, on the file of the District Munsif Court, Palani, wherein, the Court below has rejected the application filed for impleading them as defendants in the suit.
2. The first respondent herein, being the plaintiff filed the suit in O.S.No.203 of 2007, on the file of the District Munsif Court, Palani seeking that she is entitled for transfer of patta.
3. In the plaint, the first respondent herein has averred that the petitioners herein have fradulently obtained the sale deed in favour of one Sulika Beevi. According to the first respondent, as per the document dated 06.08.1982, she is in possession and at present, she has let out the suit property on lease. The petitioners herein have filed the impleading petition contending that they are the owners of the suit property. According to the petitioners in pursuant to the registered document dated 15.02.1995, they have been in possession and enjoyment of the suit property. Hence, they contend that they should be made as parties to the suit, being the necessary and proper parties. However, the Court below has dismissed the said application.
4. The learned counsel for the petitioners submitted that in view of the specific averments made in paragraph 10 & 11 of the plaint, the application ought to have been allowed. According to the learned counsel, a mere reading of the averments would show that the first respondent is aware of the sale deed in favour of the respondents and in any case, in view of the said averments the petitioners will have to be made as the parties to the suit since the truth or otherwise of the averments cannot be decided in the absence of the petitioners. It is also submitted that the relief sought for is also for transfer of patta which cannot be granted without hearing the petitioners. The learned counsel also relied upon the judgment reported in 1996 (2) MLJ 334 (S.Nagarajan Vs. Mariammal and another), wherein, this Court has held that in a suit claiming title and mandatory injunction filed against Municipality for changing the House Tax records, the other party who claims the said property under settlement deed is a proper and necessary party.
5. Per contra, the learned counsel for the first respondent submitted that in a suit, the plaintiff is the Dominus Litus and the third parties cannot seek to adjudicate their title in a suit filed by the first respondent. It is further submitted that only question to decide in the suit is as to whether the plaintiff is entitled to get the relief or not. It is further submitted by the learned counsel that when no relief has been sought for against the proposed defendants they need not be made as parties. The learned counsel relied upon various judgments reported in AIR 1958 SC 886 (V 45 C 122) (Razia Begum Vs. Sahebzadi Anwar Begum and others), 2002 (1) MLJ 814 (S.Sathyamoorthy and another Vs. Poojari alias Kaveri and others), 1999 (3) MLJ 386 (V.M.Subramani and others Vs. Arulmugu Bhavanarayanasamy Temple rep. by its Trustees), 2003 (3) LW 780 (Kousalya Educational Trust Rep. by its Chairman Kumaran K.Pandiyan Office at 24-A, New Street, Sendorkuppam, Ambur, Vellore District Vs. 1.K.Vijayakumari, W/o.Kannian, 2.Pandian Educational Trust, Tirupattur, rep. by its Secretary V.K.Kamalakannan S/o.Kandasamy, Office at Sama Nagar, Tirupattur, 3.T.V.Mohamed Ali, S/o.Vellaiya Rowther, Sama Nagar, Tirupattur) and 2004 (2) MLJ 111 (Antony Devaraj and another Vs. Aralvaimozhi (Kurusadi) Devasahayam Mount Dor and Thuya Viagula, Annai Church rep. by the Trustee and others) in support of his contentions and argued that it is for the plaintiff to decide the defendants in the suit, a new cause of action would arise by impleading the proposed parties and when no relief is sought against the proposed parties, they cannot be impleaded. Therefore, the learned counsel for the first respondent sought for the dismissal of the revision.
6. In the present case, as mentioned above the relief sought for is for the change of patta to the suit property. The averments made in paragraph 10 & 11 of the plaint would clearly indicate that there is a rival claim to the suit property. The said averments would also indicate that a sale deed has been executed by the original owner Sulika Beevi. It is also seen that, that is the reason why the original defendants in the suit are not granting change of patta. Therefore, under those circumstances, it is clearly seen that the petitioners herein are necessary and proper parties. More so, when the suit has been filed based upon the allegations made against the petitioners in paragraph 10 & 11 of the plaint, they should be made as parties.
7. As contended by the learned counsel for the petitioners in the judgment reported in 1996 (2) MLJ 334 (S.Nagarajan Vs. Mariammal and another), this Court has held that where a suit has been filed against the authorities seeking mutation in the records, the rival person will have to be made as a party. In so far as the judgment relied upon by the learned counsel for the first respondent is concerned, the said judgments are not applicable to the present case on hand. In the judgment reported in 2004 (2) MLJ 111 (Antony Devaraj and another Vs. Aralvaimozhi (Kurusadi) Devasahayam Mount Dor and Thuya Viagula, Annai Church rep. by the Trustee and others), this Court has held that when no relief has been sought for by the proposed defendants they cannot be made as a party. However, in the present case on hand, a mere reading of the plaint would show that the relief was indirectly sought against the defendants. Similarly, in the judgment reported in AIR 1958 SC 886 (V 45 C 122) (Razia Begum Vs. Sahebzadi Anwar Begum and others), the Hon'ble Supreme Court has held that the exercise under Order 1 Rule 10 is a judicial discretion. The said judgment is of no use to the first respondent since the High Court can interfere with the judicial discretion exercised by the trial Court. In the judgment reported in 2002 (1) MLJ 814 (S.Sathyamoorthy and another Vs. Poojari alias Kaveri and others), this Court has held that the impleadment of proposed parties would lead to new cause of action since the proposed defendants are the purchasers pending the suit. Hence, the facts mentioned in the said case are not applicable to the present case. This Court in the judgment reported in 1999 (3) MLJ 386 (V.M.Subramani and others Vs. Arulmugu Bhavanarayanasamy Temple rep. by its Trustees) is also not applicable to the present case since in the said case, the original defendants have filed an application to implead a third party claiming that the third party is the owner of the suit property. Therefore, the above said judgment is also not applicable to the present case. In so far as the judgment reported in 2003 (3) LW 780 (Kousalya Educational Trust Rep. by its Chairman Kumaran K.Pandiyan Office at 24-A, New Street, Sendorkuppam, Ambur, Vellore District Vs. 1.K.Vijayakumari, W/o.Kannian, 2.Pandian Educational Trust, Tirupattur, rep. by its Secretary V.K.Kamalakannan S/o.Kandasamy, Office at Sama Nagar, Tirupattur, 3.T.V.Mohamed Ali, S/o.Vellaiya Rowther, Sama Nagar, Tirupattur) is concerned, this Court has held that the power of revision under Section 115 of the Civil Procedure Code cannot be invoked challenging the order passed under Order 1 Rule 10 of the Civil Procedure Code after the amendment made to the Civil Procedure Code. This Court is of the opinion that the said judgment is also not applicable to the present case since the application has been filed invoking the power of the High Court under
Article 227 of the Constitution of India. Therefore, on considering the facts and circumstances of the case, this Court is of the opinion that it is a fit case where Order 1 Rule 10 is exercised. Hence, the revision petition deserves to be allowed.
Accordingly, the Civil Revision Petition is allowed. Consequently, connected Miscellaneous Petition is closed. There shall be no orders as to costs.