V.R. Subbaraya Gounder and Sons vs S.K. Samy and Sons and State

M. Karpagavinayagam, J.—The petitioner-firm, aggrieved by the order dismissing the application filed by it in I.A. No.570 of 2001 in O.S.

No.16 of 2001 under Order 1 Rule 10 C.P.C. to implead it as a defendant in the suit, has filed this civil revision petition.

The first respondent-firm, the plaintiff filed the suit in O.S. No.16 of 2001 against the petitioner-firm (represented by its Partner V.R.

Sadasivam), the first defendant, the petitioner herein, one Madhura Enterprises, the second defendant and the Inspector of Police, Erode North

Police Station, the second respondent herein, for permanent injunction restraining the second respondent herein from interfering with the peaceful

running of the business in its suit premises.

During the pendency of suit, the petitioner/first defendant filed I.A. No.413 of 2001 for appointment of Commissioner to take inventory of the

goods deposited by the petitioner in the suit premises. After filing of the said application, the first respondent/plaintiff filed an application to

exonerate the petitioner/first defendant and the son of the petitioner, the second defendant from the suit, as they are not necessary parties and the

same was ordered without notice to the petitioner and the son of the petitioner. On coming to know of this, the petitioner/first defendant filed I.A.

No.570 of 2001 under Order 1 Rule 10 C.P.C. to implead it as a defendant in the suit as the rights of the petitioner/first defendant are involved in

the suit, and as such, the petitioner/firm is a necessary party to the suit.

The said I.A. No.570 of 2001 was dismissed by the trial Court, as the petitioner is an unnecessary party to the proceedings. Challenging the

same, the present civil revision petition has been filed by the petitioner/first defendant.

According to the petitioner/first defendant, the goods in question were admittedly deposited by it in the warehouse of M/s. S.K. Samy and

Sons, the first respondent/plaintiff and when the suit was filed by the first respondent/plaintiff, the petitioner and the son of the petitioner were

arrayed as the defendants 1 and 2 in the suit. When the application was filed by the defendants 1 and 2 to order appointment of Commissioner to

take inventory of the goods in the plaintiff''s premises, the names of the defendants 1 and 2 have been exonerated and as such, the petitioner-firm

was constrained to file the present I.A. for impleading it as a party to the suit with a view to protect its interest in the goods deposited by it with the

plaintiff-firm.

On the other hand, it is the contention of learned counsel for the first respondent that no relief was sought for against the petitioner/first defendant

and as such, the petitioner/first defendant is not necessary party.

Heard learned counsel for both parties.

On going through the plaint and other records, it is clear that the case of the plaintiff is that third defendant/Inspector of Police, at the instance of

creditors, is likely to enter into the suit premises and seize the goods of the defendants 1 and 2. So, there is no dispute that the goods in question

were deposited by the petitioner/first defendant and the son of the petitioner/first defendant.

It is also noticed that the petitioner and the son of the petitioner were arrayed as defendants 1 and 2 respectively in the suit, and after filing of the

application for appointment of Commissioner in the suit, where they were arrayed as parties, their names had been exonerated even without notice

to them.

As noted above, there is no dispute in the fact that the goods in question were deposited by the defendants 1 and 2 with the plaintiff/firm.

Therefore, any order which is likely to be passed in favour of the first respondent/plaintiff in respect of the goods in question, would certainly affect

the rights of the petitioner/first defendant.

In the said context, the following observations made by this Court in Aruppukottai Sri Jaya Vilas (P.) Ltd. Vs. K.N. Karuppiah and Others,

are quite relevant:-

Even in cases where the suit has been dismissed as against the defendant concerned under Order 9 Rule 5 C.P.C., the Court may have the power

to implead the very same defendant by exercise of power under Order 1 Rule 10(2) C.P.C. to give a complete and comprehensive adjudication of

the questions that would arise for consideration in the suit.

The above observations of this Court in the said decision, would squarely be applicable to the facts of the present case. Therefore, the

impugned order is set aside. The revision is allowed. No costs. Consequently, C.M.P. No.15732 of 2001 is closed.