The petitioner, who is the plaintiff in the suit, has filed this civil revision petition challenging the fair and decreetal order dated 15.07.2011 made in I.A.No.201 of 2011 in O.S.No.103 of 2008 on the file of the learned Principal District Munsif Court, Tiruvannamalai.
2. The facts in brief are as under: The petitioner had filed the suit in O.S.No.103 of 2008 seeking declaration of title and permanent injunction as against the defendants. The said suit was resisted by the respondents.
3. Pending suit, the petitioner filed an application in I.A.No.201 of 2011 under Order I Rule 10(2) of the Civil Procedure Code to implead the first defendant's son Elumalai as necessary party to the suit. The respondents filed counter affidavit in the said interlocutory application.
4. The Court below, by order dated 15.07.2011, observing that the petitioner had not furnished details of the person to be impleaded as necessary party to the suit and that the petitioner had filed a chief affidavit instead of an affidavit, held that the petitioner was ambivalent in his approach and thereby dismissed the interlocutory application.
5. Assailing the said order, the present civil revision petition is filed.
6. The learned counsel appearing on behalf of the petitioner submitted that the respondents entered appearance through their counsel and hence the parties were not present until the case was posted for the evidence on the side of the respondents and it was only at that stage the petitioner noticed that Elumalai, arrayed as third defendant, is not the person against whom he is seeking relief and, therefore, the Court below ought to have excused the inadvertent error committed by the petitioner and permitted him to array Elumalai, the son of the first respondent as party to the suit.
7. I heard Mr.K.Venkatasubban for M/s.Sarvabhauman Associates, learned counsel appearing on behalf of the petitioner and perused the documents available on record. However, there is no representation on behalf of the respondents.
8. It is seen from the records that the suit was originally filed for declaration and permanent injunction restraining the respondents from interfering with the petitioner's peaceful possession and enjoyment of the suit property. According to the petitioner, he is entitled to the suit schedule property and patta stands in his name and he is paying taxes regularly. It is alleged that respondents 1 to 4 are trying to disturb the peaceful possession of the petitioner with the aid of rowdy elements and it was under such circumstances, that the suit was filed for the above said relief.
9. It is the specific averment of the petitioner that only when the matter was taken up for trial and after evidence on the side of the petitioner had been completed, the matter was posted for examination of the witness on the side of the respondents and only at that time, the petitioner came to know that the third respondent, who entered appearance, was an entirely different person with the same name. The petitioner arrayed Elumalai, the son of the first respondent, whereas the Elumalai who entered appearance was a different person. In fact, the person who entered appearance was the son-in-law of the first respondent. Under such circumstances, since Elumalai, son of the first respondent, is relevant party and not the son-in-law of the first respondent, the petitioner filed the interlocutory application referred to above.
10. That apart, it is clear from the counter affidavit filed by the third respondent that he lacked clarity as to why he was impleaded in the suit. This only fortifies the plea of the petitioner that the third respondent, son-in-law of the first respondent, is nowhere connected with the suit schedule property and he was erroneously arrayed as a party respondent in the suit.
11. As seen from the above, the only reason given for rejecting the application of the petitioner is that he had approached the Court at a belated stage and that he was ambivalent as to who is the correct Elumalai, he sought to implead as party respondent in the suit.
12. At this juncture, it is apposite to refer to Order I Rule 10(2) of the Civil Procedure Code, which reads as under.
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.
13. A reading of the above said provision makes it clear that the Court is empowered to strike out the name of any party improperly joined or to add any person as a party, who ought to have been joined as plaintiff or defendant. Thus, the Rule enables the trial Court to remove the defect of inadequate or improper joining of parties, the underlying object being the final determination of all the issues and controversies that arise in the suit which can only be possible by the presence of all the parties who are likely to be affected by adjudication of the issues by the Court. In other words, the scope and application of Order I Rule 10(2) of the Civil Procedure Code is to add parties who are necessary or proper to enable the Court to substantially adjudicate all the questions that are involved in a case.
14. In the case on hand, nothing has been placed before the Court to show that the mistaken arraying of the third respondent was not bona fide. If instead of Elumalai, the son of the first respondent, son-in-law of the first respondent is arrayed, who is not a necessary party to the suit, no purpose would be served and it will not help in the final determination of the real matter in dispute. In such view of the matter, this Court is of the view that the trial Court has committed an error apparent on the face of record warranting interference.
15. Accordingly, the civil revision petition is allowed and the order dated 15.7.2011 made in I.A.No.201 of 2011 in O.S.No.103 of 2008 by the Principal District Munsif, Tiruvannamalai, is set aside. The trial Court is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
20.02.2017 Note:Issue order copy on 01.10.2018 vs Index : Yes/No To The Principal District Munsif, Tiruvannamalai.
M.V.MURALIDARAN, J.
vs Pre-delivery order made in C.R.P.(PD) No.2380 of 2012 and M.P.No.1 of 2012 20.02.2017