This Civil Revision Petition is directed against the order dated 24.11.2017 passed in an un-numbered I.A.No. - of 2017 in A.S.No.47 of 2017 on the file of the learned Additional District Court, Tenkasi.
2. The first respondent is the appellant and the second respondent is the respondent in A.S.No.47 of 2017, which was filed against the decree and judgment dated 18.10.2016 passed in O.S.No. 26 of 2007 on the file of the learned Principal Sub-Court, Tenkasi.
3. Pending appeal, the petitioner herein, who is stated to be the son of the first respondent filed un-numbered application under Order 1, Rule 10(2) of CPC read with Section 151 of CPC seeking to implead him as second respondent in the appeal alleging that the respondents 1 and 2 are the children of Murugesan Nadar and the gift deed dated 26.11.1991 executed by Murugesan Nadar in favour of the second respondent is void abinitio. According to the petitioner, the decree obtained by the second respondent is fraud and the consent memo executed by the first respondent is collusive one. Since the petitioner is having right over the suit property, he is necessary party http://www.judis.nic.in 3 to the appeal. The respondents 1 and 2 were acting deceitfully against the interest of the petitioner over the suit property and therefore, the petitioner is a necessary party to adjudicate the above appeal. Since the first respondent refused to give share in the suit property, the petitioner send a legal notice to the respondents for partition. According to the petitioner, he is having 3/8 share in the suit property and he is in joint possession of the same. Hence, the petitioner prayed for impleading him as second respondent in the appeal.
4. The office of the Additional District Judge, Tenkasi initially returned the un-numbered application filed by the petitioner on 12.09.2017 stating that how the petitioner can seek impleadment in the appeal. The petitioner represented the application stating that since the petitioner has got right over the suit property, he is a necessary party to the appeal proceedings. Being not satisfied with the representation, again the office of the Additional District Judge, Tenkasi returned the application on 24.10.2017. Finally, the petitioner represented the application on 13.11.2017. Once again not satisfied with the reasons for representation, the office had rejected the application by an order dated 24.11.2017. Challenging the rejection of the application, the petitioner has filed the present Civil Revision http://www.judis.nic.in 4 Petition.
5. I heard Mr.T.S.Mohamed Mohideen, learned counsel for the petitioner, Mr.AN.Ramanathan, learned counsel for the 1 st respondent and Mr.A.Haja Mohideen, learned counsel for the 2nd respondent and perused the entire materials available on record.
6. Assailing the order of the first appellate Court rejecting the un-numbered application, the learned counsel for the petitioner submitted that 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. He would submit that order of the first appellate Court rejecting the un-numbered application is without reasons and the Court has not given any single reason. The learned counsel further submitted that the first appellate Court has not considered the fact that the petitioner http://www.judis.nic.in 5 suffered the execution of decree in O.S.No.26 of 2007 and also unaware of the proceeding due to the collusion between respondents 1 and 2 is a necessary party to be impleaded in the first appeal.
7. It appears that the second respondent has filed the suit in O.S.No.26 of 2007 to declare that the suit item No.1 exclusively belongs to the second respondent and for possession of the same from the first respondent, failing which the Court to deliver the same to the second respondent. After full trial, by the judgment dated 18.10.2016, the trial Court decreed the suit in favour of the second respondent. The second respondent had also filed E.P.No.21 of 2017 for delivery of suit item No.1. In the mean while, challenging the judgment and decree passed in O.S.No.26 of 2007, the first respondent filed A.S.No. 47 of 2017 before the learned Additional District Court, Tenkasi and the same is pending. Pending appeal, the petitioner had filed petition to implead himself as second respondent in the appeal. It also appears that the same petitioner had filed E.A.No.685 of 2017 under Section 47 of CPC, which is also stated to be pending.
8. The application filed by the petitioner seeking to implead him as second respondent in the appeal was returned by the learned http://www.judis.nic.in 6 Additional District Judge, Tenkasi. It would be appropriate to extract the return and representation endorsement made in the above said un-numbered application, which read thus:
“12.09.2017 Returned
1. This appeal is filed challenging the trial Court judgment and decree in O.S.No.26/2007 dated 18.10.2016. How the petitioner is a necessary party in this appeal to be stated.
2. The petitioner's right is derived from his father who lost the case and filed this appeal. How the son can seek impleading in the appeal with different on the issue.
Represented:
ic& ek;gh; nky;KiwaPl;L tHf;F brhj;jpy; ,e;j kDjhh;f;F rl;lg;go 8y; 3 g';F ,Ue;J tUfpwJ/ bghJthf K:d;whk; jug;gpdh;f;nfh rf g;'fhspf;nfh tHf;F brhj;jpy; chpik ghj;jpak; rpe;jpj;Jtpl;lhy;
Mfnt ,e;j kDjhuh; rl;lg;gojhd; jd;id ic& ek;gh; tHf;fpy; nrh;f;f nfhhp kD jhf;fy; bra;J ,Uf;fpwhh; Mfnt kDjhhpd; kD rl;lg;go epiyf;fj;jf;fJ/ mjw;F Mjtuhf 2014 3 MWM Civil 582.
http://www.judis.nic.in 7 2013 SAR Civil 499 Supreme Court nkYk; kDjhu;f;F Citation fpilj;jjhy; jhf;fy;
bra;a chpikia bra;J bfhs;fpwhh;/ Sd/- xxx Advocate/20.9.2017 22.09.2017 Returned:
How the petitioner's right can be decided in this appeal to be stated. Time four weeks.
Resubmitted:
The suit property is ancestral me, it is an undivided property. It was purchased from the sale income of undivided Hindu family. So this petitioner has right over the property. The 2nd respondent also admitted the accrual of income and geological table of the family. From this it is the right time to implead the petitioner as party to this appeal. Because, the matter should not bequeathed without proper parties. The petitioner attend majority recently and the petitioner came to know the disputes in the property. Hence, he came forward to file this petition to implead him as a party. Hence, this petition is represented.
Sd/- xxx Advocate 24.10.2017 http://www.judis.nic.in 8 Returned:
The explanations offered for previous returns dated 12.09.2017 and 22.09.2017 are not satisfactory and convincing to take this I.A. on file. The case already went upto the Hon'ble Supreme Court and decided against the father of the petitioner. The entertainability of the petitioner is strongly objected by the respondents on various grounds including the legitimacy of the petitioner's paternity. What can be decided in this appeal is illegality or irregularity ground in the trail Court judgment. The issues raised by the petitioner including his right cannot be decided in this appeal. Hence, this petition is returned as not entertainable.
Resubmitted:
The documents in the year 1960, 1961 are invents recently. The petitioner attained majority one year back. As per the 1960, 1961 documents, the suit property is an undivided joint family property. So the petitioner having share on the suit property. As per the documents 1960, 1961 the facts has to be proved or clarified to the court of law. The father of petitioner lost the case will not bind the petitioner without necessary the 1960, 1961 documents. Hence, this petition is represented to take on file and pass suitable order.
Sd/- xxx http://www.judis.nic.in 9 Advocate/13.11.2017 24.11.2017 Returned:
This petition is repeatedly represented by the 3rd party – petitioner, in spite of the observation of the Court about the entertainability and maintainability of the same. There is no point in representing the petition. Hence, the petition is rejected and no more representation is permitted.”
9. The aforesaid return made by the learned Additional District Judge, Tenkasi qua the entertainability and the maintainability of the petition filed by the petitioner to implead him as second respondent in the appeal appears to be sustainable for the reason that how the petitioner's right can be decided in the appeal filed by the first respondent challenging the judgment passed in O.S.No.26 of 2007.
10. Further, while representing the petition on 20.09.2017, the petitioner relied upon two decisions in support of his case qua the maintainability of the petition. However, the petitioner had failed to produce those two decisions. Therefore, in the absence of any supporting decisions by the petitioner qua maintainability of the petition to implead him as second respondent in the appeal filed by the http://www.judis.nic.in 10 first respondent, the learned Additional District Judge was right in rejecting the un-numbered application filed by the petitioner.
11. As rightly stated by the learned Additional District Judge, the issue that can be decided in the appeal is whether the trial Court has committed any error in decreeing the suit. Moreover, the rights of respondent Nos.1 and 2 herein can alone be looked into in the pending appeal and nothing more. Further, in the facts and circumstances of the case, the petitioner cannot invoke the provisions of Order 1, Rule 10(2) of CPC to implead him as respondent in A.S.No.47 of 2017 and the learned Additional District Judge, Tenkasi was right in rejecting the un-numbered petition. At best, the petitioner can challenge the decree passed in O.S.No.26 of 2007 by way of appeal, subject to convincing the first appellate Court qua maintainability. Thus, this Court finds no infirmity and/or perversity in the order of the learned Additional District Judge, Tenkasi impugned in the revision. No valid grounds have been made out to interfere with the order of the learned Additional District Judge, Tenkasi and thus, the Civil Revision Petition is liable to be dismissed.
12. In the result:
http://www.judis.nic.in 11
(a) The Civil Revision Petition is dismissed by confirming the order passed in an un-numbered I.A.No.
- of 2017 in A.S.No.47 of 2017 dated 24.11.2017 on the file of the learned Additional District Court, Tenkasi.
(b) The petitioner is given liberty to challenge the decree in O.S.No.26 of 2007 dated 18.10.2016 on the file of the learned Principal Sub-Court, Tenkasi by way of appeal, if he wish, subject to convincing the first appellate Court.
(c) No costs. Consequently, connected miscellaneous petition is closed.
01.10.2018 vsv Note:Issue order copy on 18.02.2019 Index : Yes Internet : Yes To The Additional District Judge, Tenkasi. http://www.judis.nic.in 12 M.V.MURALIDARAN, J. vsv Pre-delivery order made in C.R.P.(MD)(PD)No.2559 of 2017 and CMP(MD)No.11908 of 2017 01.10.2018 http://www.judis.nic.in