Ponnuswami Reddiar vs Lalitha and Others

P.R. Gokulakrishnan, J.—The revision petition arises out of the order passed in I.A. No. 258 of 1971 in O.S. No. 81 of 1964 on the file of

the Sub-Court, Tiruchirapalli. The first respondent herein filed that application under Order 1, Rule 10 and Section 151, Civil Procedure Code,

praying to implead the petitioner herein as a partly defendant in the suit. It is necessary to narrate the events that preceded the fling of the

application under order 1, Rule 10, Civil Procedure Code, by the first respondent herein.

Lalitha, the first respondent herein filed the suit O.S. No. 81 of 1964 against respondents a and 3 for rendition of accounts of the value of all the

jewels which the first respondent had entrusted with them. The suit was decreed on 24th March, 1966, directing rendition of accounts by the

second and third respondents to the first respondent. On appeal by respondents 2 and 3 to the District Court, Tiruchirapalli, in A.S. No. 427 of

1966, the District Judge found that the entrustment of the jewels, listed in Exhibit A-17, with respondents 2 and 3 by the first respondent was true

and that respondents 2 and 3 will have to account and pay for the jewels. While disposing of the appeal, the District Judge observed:

There is nothing to show that out of sheer goodwill, the first respondent (petitioner herein) may have agreed to bear the entire expenses of three

substantial litigations launched by the appellant (first respondent herein).... Inevitably, therefore the expenditure of litigation in part at least, must

have come out of the sale or pledge of jewellery of the appellant (first respondent herein). Therefore the relief sought obviously is to recover the

balance of value either in the shape of cash or the remaining jewellery of the appellant (first respondent herein) after debiting against her the

expenditure of the litigation or a proper part thereof. But it is not the case of the appellant first respondent herein) that respondents 2 and 3

(respondents 2 and 3 herein) were in charge of the conduct of the litigations in which she was involved or that they sold the jewellery or incurred

any expenditure in connection with the litigation. On the other hand, the case of the appellant (first respondent herein) is that the first respondent

(petitioner herein) did so. Yet, the first respondent (petitioner herein) has not been made a party to the suit. Therefore the best way of disposing of

the suit seems to be remand the suit so that the first respondent (petitioner herein) may also be made a party there to and then : (1) take an account

of the expenditure incurred for the litigation ; (2) the precise amount realised by the sale if any, of the jewels; and (3) if none of the jewels are

available, determine the value of the jewels; and (4) set off the expenditure of the litigation against the same and enable the appellant (first

respondent herein) to recover the balance.

With these observations, the District Judge remanded the suit to the final Court for disposal afresh.

On appeal against the order of remand preferred by respondents 2 and 3 herein before this Court in S.A. No. 877 of 1968, Kailasam, J.,

dismissed the second appeal with the following observations:

The only point is whether the order of remand can be sustained. Taking into account that Ponnuswami Reddiar (petitioner herein) is a necessary

party, I do not think that the order of remand directing to implead him and to go into the question mentioned by the lower appellate Court is

erroneous. Therefore the order of remand will have to be confirmed. In directing remand, the lower appellate Court has given some findings. As

the entire case will be re-opened in the presence of Pormusami Reddiar who was not a party to the prior proceedings, these findings will have to

be vacated and the matter gone into afresh.

The first respondent here also filed O.S.No. 19 of 1964 against the petitioner (Ponnusami Reddiar) for rendition of a true and correct account

of the moneys which she had entrusted with him. According to her, she entrusted a sum of Rs. 10,000 with him. The trial Court dismissed the suit.

The first respondent preferred A.S. No. 613 of 1966 on the file of the District Court of Tiruchirappglli. The District Judge rendered a common

judgment both in A.S. No. 613 of 1966 and in A.S. No. 427 of 1966, by which he dismissed the appeal filed by the first respondent (A.S. No.

613 of 1966). The first respondent preferred S.A. No. 1464 of 1968 before this Court. The said second appeal was heard along with S.A. No.

877 of 1968. By a common judgment, Kailasam, J., dismissed S.A. No. 1464 of 1968.

Pursuant to the above said observations made by the District Judge in A.S. No. 427 of 1966, confirmed by the High Court in S.A. No. 877 of

1968, the first respondent preferred I.A. No. 258 of 1971 under Order 1, Rule 10 and Section 151, Civil Procedure Code, for impleading the

petitioner herein as a party-defendant in the suit O.S. No. 81 of 1964. In his affidavit filed in support of that application, the first respondent herein

referred to the judgments in A.S. No. 427 of 1966 and S.A. No. 877 of 1968 and prayed for impleading Ponnusami as a defendant in the suit. In

the counter filed by Ponnuswami (petitioner herein) he contended that there are no grounds for adding him as a party to the suit at the present stage

and that the application is barred by limitation. It was further contended that the grounds alleged for adding him as a defendant are neither proper

nor correct and that the proper gist and effect of the previous proceedings have not been clearly and correctly set out in the affidavit. The counter-

affidavit further stated that the suit is of the year 1964 and the application filed in 1971 is clearly barred by limitation. It is again the contention in the

counter-affidavit that it has never been found that the petitioner herein is an accounting party to the suit, that the first respondent herein had on a

previous occasion stated that he was not willing to add him as a party and that the present application is therefore barred.

The Subordinate Judge took up for consideration the question as to whether the third party, Ponnuswami, should be impleaded in the suit. He

allowed the application after observing thus:

It may be that plaintiff (first respondent herein) does not desire a decree against Ponnuswami (petitioner herein) but nevertheless this Court is

bound by the order of the appellate Court as well as of the High Court directing him to implead Ponnusami Reddiar as he is a necessary party....It

is open, to Ponnusami Reddiar (petitioner herein) after he is impleaded in the suit to raise whatever contentions including the question of limitation in

his pleadings and contest the suit.

Aggrieved by the order of the Subordinate Judge, this C.R.P. has been preferred by Ponnuswamy.

Thiru M.S. Venkataramier, learned Counsel appearing for the petitioner, submitted that Ponnuswami was not a party in O.S.No. 81 of 1964

nor in A.S. No. 427 of 1966, nor in S.A. No. 877 of 1968 and that as such any directions contained in the judgment in A.S. No. 427 of 1966 or

in S.A. No. 877 of 1968 are not binding on him. Learned Counsel also submitted that the Subordinate Judge, except for stating that he is bound

by the directions made by the appellate Courts, has not applied his mind to the question as to whether the petitioner is a proper or a necessary

party to the suit. According to Thiru M.S. Venkataramier, learned Counsel for the petitioner, such conclusion of the Court below without

application of its mind to the facts and to the provisions contained in Order 1, Rule 10, Civil Procedure Code, has resulted in the failure of exercise

of its jurisdiction and as such this Court under its revisional powers, can interfere with the order.

Thiru K. Ramaswami, learned Counsel for the first respondent, submitted that there is no question of jurisdiction involved in this revision petition

for me to interfere and that Ponnuswami is a proper and necessary party to the suit. According to Thiru K. Ramaswami, the learned Counsel for

the first respondent, the second is the wife of the petitioner and the third respondent is the daughter of the petitioner and as such the pledging of the

jewels and the expenditure incurred by the petitioner for the litigation of the first respondent, are necessary matters in issue to be decided in O.S.

No. 81 of 1964 and hence Ponnuswami is not only a proper but a necessary party to effectually adjudicate upon the dispute involved in the suit.

The plaint filed by the first respondent in O.S. No. 81 of 1964, which is admittedly against respondents 2 and 3, prays for directing

respondents 2 and 3 or such of them as may be liable to render to the first respondent a true and correct account of the value of all the jewels

which the first respondent had entrusted with them. The trial Court, after observing that the plaintiff (first respondent) has proved to the satisfaction

of the Court that she had entrusted the jewels mentioned in the list appended to the plaint, with the defendants (respondents 2 and 3), passed a

preliminary decree directing the defendants (respondents 2 and 3) to render to her (first respondent) an account of the value of the jewels which

she had entrusted to them as per the list appended to the plaint. Even the appellate Court viz., District Court, in A.S. No. 427 of 1966 found, on

evidence, that the first respondent brought the jewellery, that they were taken charge of by the second respondent and kept in a safe which

admittedly she has and the keys of which are said to be in her possession and that thus therefore it is reasonable clear that there must have been

entrustment of jewellery as alleged.

But unfortunately, the District Court, in A.S. No. 427 of 1966, observed that the relief sought obviously is to recover the balance of value

either in the shape of cash or the remaining jewellery of the first respondent after debiting against her the expenditure of the litigation on a proper

proof thereof. This, in my opinion, is outside the scope of and prayer in the plaint in the suit, which is a simple one for directing respondents 2 and

3 to render to the first respondent a true and correct account of the value of the jewels which were entrusted to the second respondent as per the

list appended to the plaint. Both the Subordinate Judge and the District Judge, in O.S.No. 81 of 1964 and A.S. No. 427 of 1966 respectively,

categorically found that the jewels as listed in the list appended to the plaint were ""entrusted"" to the second respondent,. It is significant to note that

there is absolutely no counter-claim by the second or the third respondent with regard to the amount alleged to have been spent out of the amount

that came on account of the pledging of the jewels entrusted with them by the first respondent. In the absence of such a counter-claim, and in the

absence of any such prayer in the pleadings, it is too much for the District Court to observe in its judgment in A.S. No. 427 of 1966,

the expenditure of litigation is part, at least must have come out of the sale or pledge of jewellery of the appellant"" (first respondent).

The High Court, in S.A. No. 877 of 1968 observed that the petitioner is a necessary party to the suit and ordered remand with a direction to

implead the petitioner. These observations of the High Court were admittedly not made in the presence of the petitioner as a party in S.A. No. 877

of 1968. No doubt, the appeal in which the petitioner was a party, viz., S.A. No. 1464 of 1968, was heard along with the appeal in which the said

observations were made. But it cannot be construed that simply because the two second appeals had been heard together and disposed of, in one

of which the petitioner was not a party, the petitioner is bound by any directions contained in the order in appeal to which he was not a party.

Further the direction to implead the petitioner as a necessary party to the suit cannot be, in these circumstances, considered as binding upon

the petitioner since he has every right to contest the application to implead him as a party-defendant in the suit as soon as such an application is

filed. The directions of the District Court and the High Court have been complied with by the filing of the application under Order 1, Rule 10, Civil

Procedure Code, by the first respondent before the trial Court. But the petitioner has rightly contested the application on the ground that he is

neither a necessary nor a proper party to the suit.

Again it is surprising to note how and why the first respondent is agitating this matter, viz., of impleading the petitioner as a party to the suit,

since it will not be to the advantage of herself if the petitioner is added as a party-defendant to the suit. On the other hand, it is respondents i and 3

who will stand to gain by making Ponnusami as a party-defendant, inasmuch as it will reduce their liability to a very great extent. But whatever it

may be, the whole matter is left open by reason of the appellate judgments for a fresh trial and as such respondents 2 and 3 can as well defend the

suit by letting in the evidence of Ponnuswami on their side and also taking necessary steps in regard to realising any claim they may have against the

first respondent.

Order 1, Rule 10(a), Civil Procedure Code, states that the Court may, if it finds just, order that the name of any person who ought to have

been joined, whose presence before the Court may be necessary in. order to enable it effectually and completely to adjudicate upon and settle all

the questions involved in the suit, be added. The prayer in the plaint of the first respondent is for accounting for the jewels mentioned in the list

appended to the plaint which had been entrusted to respondents 2 and 3. As such there is no question of joining Ponnusami (petitioner herein) as a

defendant in the suit since no relief has been claimed by the first respondent in the suit. Further, the Court can effectually and completely adjudicate

upon and settle all the questions involved in the suit without the presence of the petitioner as a party-respondent, inasmuch as the suit is only for

directing the defendants (respondents 2 and 3) to render to the first respondent a true and correct account of the value of the jewels which the first

respondent had entrusted with respondents 2 and 3. Thus the petitioner herein is not a necessary nor a proper party to the suit.

The Court below has not discussed as to how the petitioner is a necessary party except following the directions of the appellate Courts. Thiru

M.S. Venkataramaiyar, learned Counsel for the petitioner rightly asserted that directions issued without notice to the petitioner cannot bind the

petitioner. No doubt, the Court below has the right to consider the question of impleading the petitioner as a party-defendant on the merits of the

case. But it seems to have been obsessed by the observations of the appellate Courts and as such committed an error in the exercise of its

jurisdiction.

In these circumstances, and upon the discussions and findings I have arrived at in the foregoing paragraphs, I am of the view that the petitioner

herein is not a proper or necessary party to the suit.

The Civil Revision Petition is allowed. There will be no order as to costs.