C. Ramasamy and Others vs S.S. Chinnusamy and Others

S. Palanivelu, J.—The Petitioners are third parties to the suit in O.S. No. 200 of 2008 on the file of the Principal District Munsif, Bhavani.

The suit has been filed by the Respondents who are four in numbers for a declaration that re-survey undertaken by the Defendants 1 to 3 who are

Government Officials with respect to re-survey No. 95 and 96 in Kilvani Village, Bhavani Taluk is not valid and also for a permanent injunction

restraining the Defendants from enjoying the properties by taking their cattle, tractor, lorry, etc., by constructing drainage nor putting up electric

posts or by any other means.

Pending the trial of the suit, these Petitioners filed application in I.A. No. 1233 & 1234 of 2008 under Order 1 Rule 10(2) and Section 151 of

CPC for imp leading them as party Defendants.

In the affidavit, they have alleged that the suit property is a cart-track which is a Government Pocomoke pathway through which the village

people have been going to Bhavani river and burial ground for over 100 years, that neither the Respondents nor their forefathers had been

exercising any right, that the Petitioners are proper and necessary parties to the suit and in their presence, the rights of the parties may be

adjudicated.

In the counter, it is stated that it is false to state that Survey No. 95 & 96 is consisting of a Government Pocomoke pathway, that it is incorrect

to state that it is being enjoyed by the public as a public pathway for over 100 years to reach Bhavani river and burial ground, that the suit is

against the Government officials and that the Petitioners are not proper parties nor necessary parties to the suit.

After hearing both sides, the learned District Munsif, Bhavani dismissed the application by observing that there is no relief prayed for against

these Petitioners and hence they are not necessary parties to the suit. The said order is under challenge before this Court.

The learned Counsel for the Petitioner Mr. N. Manokaran would submit that in as much as the suit property is a public pathway commonly used

by the village people to reach Bhavani river and burial ground, since the Petitioners are also utilising the said pathway like other people, their

presence in the suit is very much essential, whatever decision rendered in the suit has to be done in the presence of the Petitioners, that in case if

the suit is decreed in favour of the Plaintiffs, these Petitioners'' common interest will be much prejudiced.

Contending contra, the learned Counsel for the Respondents Mr. Selvathirumurugan would contend that there is no justification on the part of

the Petitioners to seek impalement in the suit, that they are neither necessary nor proper parties to the suit, that the frame of the suit and the

pleadings embodied therein would candidly indicate that the relief prayed for is purely against the Government and any member of public much less

the Petitioners would get prejudiced by the judgment rendered in this case, that the Plaintiffs have challenged the action of the Government officials

in not following the proper procedure in the statute and it is a dispute purely between the Plaintiffs and the Government in which the Petitioners

have no role to play and that their impalement is not at all required in the case.

The learned Counsel for the Petitioners placed reliance upon a decision of this Court in S. Krishnan Vs. Rathinavel Naicker and Others, wherein

V. RAMASUBRAMANIAM, J., after analysing the subject on record with reference to various judgments of the Supreme Court and this Court,

formulated following guidelines before imp leading the party into a suit at p. 598 of MLJ:

In a nut shell, the tests to be applied for determining the right of a party to implead another, in a pending Suit or other proceeding, may be

crystallized into the following categories:

(a) If without his presence no effective and complete adjudication could be made;

(b) If his presence is necessary for a complete and effectual adjudication of the dispute though no relief is claimed against him;

(c) If there is cause of action against him;

(d) If the relief sought in the Suit or other proceedings is likely to be made binding on him;

(e) If the ultimate outcome of the proceedings is likely affect him adversely;

(f) If his role is really that of a necessary witness but is sought to be camouflaged as a Necessary party;

Indicating Point Nos. (b) and (e) of the above said guidelines, the learned Counsel would state that if the case was decided in the absence of the

Petitioners, their interests will be affected. He also garnered support from a decision of the Supreme Court in Mumbai International Airport Pvt.

Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd. and Others, in which their Lordships have dealt with importance of proper party and

necessary party and the implication of their absence and impalement in a suit. Following is the relevant portion of the judgment.

A ""necessary party"" is person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by

the Court. If a ""necessary party"" is not imp leaded, the suit itself is liable to be dismissed. A ""property party"" is a party who, though not a necessary

party, is a person whose presence would enable the Court to completely, effectively and adequately adjudicate upon all matters in dispute in the

suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary

party, the Court has no jurisdiction to implead him, against the wishes of the Plaintiff. The fact that a person is likely to secure a right/interest in a

suit property, after the suit is decided against the Plaintiff, will not make such a person a necessary party or a proper party to the suit for specific

performance.

The learned Counsel for the Petitioner would draw attention of this Court to a writ proceeding taken by the 3rd Plaintiff by name S.

Balasubramaniam. He filed W.P. No. 23933 of 2008 and the Hon''ble First Division Bench of this Court on 6.11.2008 dismissed the writ petition.

The prayer contained there is for issuance of a writ of mandamus forbearing the Respondents not to construct the burial round on the banks of

Bhavani River near by the Petitioner''s land situated in Survey Nos. 94/1, 98/1, 98/2 and 98/3 of Sennimalaigoundan Pudur, Keelvani Village,

Bhavani Taluk, Erode District. The properties in the civil suit and the writ proceedings are entirely different and the relief''s prayed for in both the

suit and the writ are also different.

The learned Counsel for the Respondents/Plaintiffs placed reliance upon the following decisions

(1) Film Federation of India v. Union of India and Ors. AIR 1996 Mad 43 (DB)

(2) R.R. Square et. v. Mrs. Shobalatha Debi (1997) 2 LW 691

(3) Kasturi Vs. Iyyamperumal and Others,

(4) Leelavathi v. Sri Venkateswara Finance (2009) 2 CTC 697: (2009) 7 MLJ 761

(5) B. Somaiah and Others Vs. Amina Begum,

(6) Girdhari Lal v. Nagar Parishad and Anr. AIR 1998 Raj 128

(7) Tulsi Devi and Anr. v. Municipal Corporation of Delhi and Anr. AIR 1985 Del 353

In the case of Film Federation of India v. Union of India and Ors. (supra), a Division Bench of this Court has observed as follows

Where the validity of a statue, Copyright (Amendment) Act, 1984 in the instant case, is challenged a private litigant who happened to be the

beneficiary of the policy envisaged under the Act cannot be allowed to be joined as party because what is sought to be done is not to put the law

in motion but to make an attempt to defend a legislation, to which Govt. alone was necessary party to support its own legislation.

Relying upon the above said decision, the learned Counsel for the Respondent/Plaintiff would say that the Plaintiffs are challenging the

procedure adopted by the Government officials in not issuing any notice u/s 9(2) of the Tamil Nadu Survey and Boundaries Act and the said

decision is applicable to the case. Going by the allegations in the plaint, it is learnt that during the re-survey, the Plaintiffs were not issued with

notice u/s 9(2) of the Tamil Nadu Survey and Boundaries Act and they came to know about the change of nomenclature of the suit property as

Government Pocomoke cart-track"" only after receiving the re-survey in the year 2008 in the month of April when the revenue officials came and

inspected the property. In this context, the particulars of the prayer incorporated in the plaint are also relevant. A declaration is sought for to make

the re-survey invalid with respect to Survey No. 95 and 96 for non-compliance of Section 9(2) of the above said Act and for a permanent

injunction in favour of the Plaintiffs. It is for the Government to agitate the claim and establish before the Court about their adopting the procedure

in the re-survey process as valid. In this process, the Petitioners have no role to play.

In the other decisions relied upon by the learned Counsel for the Respondents, the importance of impalement of parties under Order 1 Rule

10(2) of CPC have been discussed. The gist of the principles laid down therein are to the effect that the provisions dealt with two types of cases

only; one is where the applicant ought to have been joined as Plaintiff or Defendant and is not so joined, meaning thereby that he is a necessary

party for proper adjudication of the suit. The other is, where without his presence the question in suit cannot be completely and effectually

adjudicated upon.

The Court has to weigh the role to be played by the proposed parties who seek to be imp leaded in a suit with reference to their rights. If the

Court feels that without their presence nothing could be adjudicated, then they are necessary parties and their presence can be decided to be

essential. On the other hand, if the Court deems fit that a party whose presence alone is necessary and no relief need to be accorded to the said

party, then such party is a proper party and he may be added as a party. If the Court reaches a conclusion that presence of the proposed party is

not at all necessary for adjudication of the claims of the parties in the suit, then he is neither a necessary party nor a proper party and there is no

need to implead him.

Adverting to the facts of the present case, it is the claim of the Petitioners that they are using the suit cart-track like other village people and in

case if the title of the property is declared in favour of the Plaintiffs by the Court, then, they will be much prejudiced. The contention could not be

countenanced for the reason that the Plaintiffs have agitated the procedure adopted by the Government officials. They say that the revenue

department did not comply with the procedures incorporated in the statute. In this regard, there is no scope for impalement of the third parties. If

the proposed parties feel aggrieved by the action taken by anybody else, they may very well approach the Court in a representative capacity,

representing all the villagers which would reflect common interest. The present suit is purely a dispute between the Plaintiffs and the Government. In

these circumstances, I am of the considered opinion that the Petitioners are not necessary parties to the suit and they need not be imp leaded.

Hence, the order challenged before this Court deserves to be confirmed and it is accordingly confirmed. The revision is devoid of merits.

In fine, the Civil Revision Petitions are dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.