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Judgment
M. Venugopal, J.—The civil revision petitioner/first respondent/plaintiff has filed this civil revision petition as against the order dated
12.08.2008 in I.A. No. 813 of 2008 in O.S. No. 416 of 2005 passed by the Additional District Judge, Fast Track Court No. V, Coimbatore at
Tiruppur in allowing the application filed by the first respondent/proposed party under Order 1 Rule 10 of CPC and directing him to be impleaded
as 4th defendant in the suit.
The trial Court while passing orders in I.A. No. 813 of 2008 has inter alia observed that ''the execution of a document itself is to be proved by
means of evidence etc. and in order to avoid multiplicity of litigation in respect of agreement of sale and also to consider the claim of proposed
party in the present suit itself, ordered the impleading of the proposed party as 4th defendant in the suit and after impleading the proposed party
has been permitted to raise his plea by way of counter claim by paying necessary court fee and resultantly, allowed the said application.''
The learned Counsel for the revision petitioner urges before this Court that the trial Court has erred in passing orders while directing the
impleading of first respondent herein as one of the defendants in the suit without considering the merits of his claim from proper perspective and the
trial Court should have seen that a person who sought to implead himself based on an alleged unregistered deed of assignment must prove the
assignment in the manner known to law and further that the revision petitioner/plaintiff/mother has disputed the execution of the assignment and that
the trial Court should have seen that mother is the plaintiff and that the son who claimed to have an assignment in his favour is enimical towards her
and further that a party sought to be impleaded cannot be transmitted either as a plaintiff or as a defendant without any right to exercise against the
plaintiff and in any event, a third party cannot be thrust against the Will of the plaintiff because in the suit plaintiff is the dominus litus and therefore,
prays for allowing the civil revision petition to promote substantial cause of justice.
The learned Counsel for the revision petitioner contends that the first respondent/proposed party/petitioner is not a proper and necessary party
to be impleaded in the present case and in support of his contention, he relies on the decision Hridaya Narain Singh Vs. Hira Lal and another,
wherein it is inter alia observed as follows:
Otherwise also the plea of the applicant that he was the real owner of the property in question and that the defendant opposite party, Smt. Phulmati
Devi, was holding the property benami cannot entitle him to be impleaded in the suit in view of the provisions contained in Sub-section (2) of
Section 4 of the Benami Transactions (Prohibition) Act, 1988 which provides that no defence based on any right in respect of any property held
benami, whether against the person in whose name the property is held or against any person, shall be allowed in any suit, claim or action by or on
behalf of a person claiming to be the real owner of such property. The applicant, therefore, is not such a person who ought to have been joined in
the suit as defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely adjudicate
upon and settle all or any question involved in the suit. The Court below was well within its jurisdiction under Sub-rule (2) if Rule 10 of Order I of
the Code in declining the prayer of the applicant for being impleaded as defendant and did not act either illegally or with any material irregularity.
He also cites the decision M.K. Navaneetham Naidu Vs. Gangiah Naidu and Others, whereby it is held that ''the real owner is not the legal
representative of a benamidar within the meaning of Section 2(11) of CPC and that a benamidar can maintain an action in his own name and so
long as the benamidar does not purport to sue in a representative capacity, the real owner cannot come in on his death under Order 22, Rule 3 of
Civil Procedure Code.'' Yet another decision Ajmera Housing Corporation Vs. Amrit M. Patel (Dead) Through L.R.S. and Others, has been
relied on the side of petitioner wherein the Hon''ble Supreme Court has refused to interfere with the impugned order of High Court since the issues
involved as to the assignment of rights ought to be thrashed out in properly constituted suit and not in an appeal against interlocutory order and any
decision would prejudice developer in case he files separate suit. Further, the learned Counsel for the revision petitioner submits that as per Section
19 of the Specific Relief Act, an undisclosed principal cannot be impleaded as a party in the case and that the trial Court has not gone into the
aspect and therefore, the order of the trial Court suffers from serious infirmity and needs to be set aside by this Court.
Contending contra, the learned Counsel for the first respondent/proposed party/petitioner submits that the respondent/proposed party is a
necessary party for proper adjudication of disputes involved in the case and that the trial Court has passed a just and fair order of allowing the I.A.
No. 813 of 208 by observing that in order to avoid multiplicity of litigation in respect of the suit agreement of sale and to consider the claim of the
proposed party in the suit etc. and therefore, this Court sitting in revision may not interfere with the orders passed by the trial Court in as much as
the trial Court has exercised its discretion in allowing the impleading application. Further, the learned Counsel for the first respondent/proposed
party/petitioner cites the decision Firm of Mahadeva Rice and Oil Mills and Others Vs. Chennimalai Goundar, wherein this Court has formulated
the following tests as a useful guidance in the case of adding of parties under Order 1 Rule 10 of CPC are runs as follows:
... (1)If, for the adjudication of the ""real controversy"" between the parties on record, the presence of a third party is necessary, then he can be
impleaded; (2)It is imperative to note that by such impleading of the proposed party, all controversies arising in the suit and all issues arising
thereunder may be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject-matter which could still have been decided
in the pending suit itself; (3)The proposed party has a defined, subsisting, direct and substantive interest in the litigation, which interest is either legal
or equitable and which right is cognisable in law; (4)Meticulous care should be taken to avoid the adding of a party, if it is intended merely as a
ruse to ventilate certain other grievances of one or the other of the parties on record which is neither necessary or expedient to be considered by
the Court in the pending litigation; and (5)It should always be remembered that considerable prejudice would be caused to the opposite party
when irrelevant matters are allowed to be considered by Courts by adding a new party whose interest has no nexus to the subject-matter of the
suit. C.M.V. Krishnamachari Vs. M.D. Dhanalakshmi Ammal and Others, and Razia Begum Vs. Sahebzadi Anwar Begum and Others, and In Re:
Kelloth Ibrahim Haji and Others, and Nrisingh Prosad Paul Vs. Steel Products Ltd., , Rel. on.
It is to be borne in mind that a necessary party is one without whom no order can be effectively made in the considered opinion of this Court.
As a matter of fact, besides the Order 1 Rule 10(2) of CPC the Court has inherent power to order substitution of parties. However, the Court is
to take into account all relevant circumstances. It is to be noted that a necessary party is of one without whom no order can be made effectively. A
proper party is one whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the
question involved in the proceedings. Indeed, a person may be a proper party even though no relief is claimed against him. To bring a person as a
party defendant is not a substantive right but one of procedure and the Court has to exercise its discretion in a proper manner. To avoid multiplicity
of suits and conflicting decisions a party may be added in a given case.
At this stage, this Court points out that for invoking protection u/s 19(b) of the Specific Relief Act the subsequent purchaser should have entered
into a transaction bonafide and that he ought to have paid the entire amount etc. These ingredients will have to be proved by the subsequent
purchaser and onus lies on him.
On a careful consideration of respective contentions, since the first respondent/proposed party/petitioner has made a claim that the revision
petitioner/first respondent/plaintiff has executed a made over deed in his favour on 21.01.2008 with respect to the sale agreement and taking note
of the fact that the revision petitioner/first respondent/plaintiff has denied the same as false, this Court is of the considered view, the first
respondent/proposed party is a necessary and proper party for completely and effectively deciding all questions/controversies involved in the suit
and further that since the first respondent/proposed party is likely to be affected by the final outcome of the case, he must be impleaded as one of
the defendants and in that view of the matter, he has been rightly ordered to be impleaded as 4th defendant in the suit for an effective and final
adjudication and therefore, the order passed by the trial Court does not suffer from any material irregularity or illegality in the eye of law. However,
the observation of the trial Court that after impleading the first respondent/proposed party can raise his plea by way of counter claim by paying
necessary Court fee is clearly unsustainable in the eye of law and hence, the same is set aside by this Court in the interest of justice.
In fine, the order passed by the trial Court in so far as it relates to the impleading of the first respondent/proposed party as 4th defendant in the
suit is confirmed. However, the further observation of the trial Court that after impleading the proposed party can raise his plea by way of counter
claim by paying necessary Court fee is set aside to prevent aberration of justice. Liberty is given to the parties to raise all contentions/objections in
the main suit before the trial Court in the manner known to law.
With these observations, the Civil Revision Petition is disposed of. There shall be no order as to costs. Consequently, connected miscellaneous
petition is closed.