At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioner: R. Nalliyappan, Advocate. For the Respondents: R1, M/s. Sarvabhauman, Associates, Advocates.
(Prayer:Civil Revision Petition filed under Article 227 of the Constitution of India, against the Fair and Final Orders passed in I.A.No.138 of 2005 in O.S.No.83 of 2002, dated 01.08.2005, on the file of the Subordinate Judge, Kallakurichi.)
1. The petitioner has filed this Civil Revision Petition to set aside the fair and final order passed in I.A.No.138 of 2005 in O.S.No.83 of 2002 on the file of the Subordinate Judge, Kallakurichi, dated 01.08.2005.
2. The case of the revision petitioner is that he is the defendant in the above suit. The contesting
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st respondent namely Matheswaran has filed the above suit for the relief of specific performance against the revision petitioner on the basis of the registered sale agreement dated 13.02.2001. The said suit is contested by the revision petitioner claiming that the suit agreement is unenforceable, since the 1st respondent/plaintiff failed to discharge his duty of paying the balance sale consideration within the stipulated period of 1 year, as per the agreement. Therefore the revision petitioner prayed for dismissal of the above suit.3. In the said suit, the trial commenced and the evidences were put forth by either sides and the same was closed by the trial Court. Whereas at such a belated point of time after closure of evidence, the 1st respondent/plaintiff came up with an Interlocutory Application in I.A.No.138 of 2005 under Order 1, Rule 10(2) of CPC praying to implead the 2nd respondent herein namely Subramanian as the 2nd defendant in the suit. According to the 1st respondent/plaintiff, the 2nd respondent herein is a mortgagee of a mortgage deed dated 26.06.2001 which was executed by the revision petitioner in respect of the suit scheduled property subsequent to the sale agreement, with a view to defeat the above sale agreement dated 13.02.2001.4. According to the 1st respondent the said mortgage was not supported by any consideration. By claiming so, the 1st respondent has filed the above Interlocutory Application to implead the 2nd respondent as a defendant in the suit. Though the above application is belated and unsustainable in eyes of Law and fact, the learned trial Judge without proper appreciation of the fact and law has allowed the above application and thereby impleaded the 2nd respondent herein as the 2nd defendant in the suit. The said order is impugned herein.5. I heard Mr.R.Nalliyappan, learned counsel appearing for the revision petitioner and M/s.Sarvabhauman Associates, appearing for the 1st respondent.6. The learned counsel for the revision petitioner would submit that the 2nd respondent is neither necessary nor proper party to the above suit. The said suit being one for specific performance, the 2nd respondent cannot be added as a defendant in the suit. Since the 2nd respondent was not a party to the above sale agreement and no relief was sought as against the 2nd respondent, he is not a necessary party for adjudicating the suit on hand. The application being filed after closing of evidence in the above suit ought not to have been entertained by the trial Court. However, the learned trial judge without considering the above said facts has allowed the 1st respondent’s application to implead the 2nd respondent.7. Per contra, the learned counsel for the 1st respondent would submit that the 2nd respondent is a necessary party, since he is the subsequent mortgagee of the suit scheduled property. The execution of mortgage deed itself was to defeat and delay the legitimate claim of the 1st respondent. The 2nd respondent is none other but the brother of the revision petitioner, who has fraudulently and collusively executed the above mortgage deed in exhibit B3. Hence the same necessitated the 1st respondent herein to file an application to implead the 2nd respondent herein as a party to the suit and the same was rightly allowed by the Learned Trial Judge.8. On careful perusal of the records and upon hearing the rival submissions, it is noticeable that both the sale agreement and mortgage deed are registered documents. Whereas the sale agreement is found to be executed on 13.02.2001 and the mortgage deed is executed on 26.06.2001 i.e at later point of time. Therefore it is obvious that the mortgage deed stands executed subsequent to the suit agreement dated 13.02.2001.9. Though the 2nd respondent is not a party or signatory to the sale agreement, the property remains one and the same in both the documents. Moreover both the deeds are being executed by the revision petitioner/the defendant. Therefore this Court is not inclined to appreciate the contention of the revision petitioner that the 2nd respondent is a stranger to the suit schedule property. Furthermore there cannot be any straight jacket formula as claimed by the revision petitioner.10. It is needless to say that it is the duty casted upon a Court to implead just and necessary parties in a suit, so as to enable itself to come to a right decision on adjudication of the rights and liabilities of the parties concerned. Furthermore any decision arrived by impleading such parties would also avoid multiplicity of litigations, besides enabling the Court to render complete and substantial justice.11. In view of the above discussion, I see no irregularity in the order passed by the Learned trial Judge in impleading the 2nd respondent as 2nd defendant in the suit.12. In the result, the Civil Revision Petition fails and the same is hereby dismissed, by confirming the order passed in I.A.No.138 of 2005 in O.S.No.83 of 2002, dated 01.08.2005, on the file of the Subordinate Judge, Kallakurichi. There is no order as to cost. Consequently, connected miscellaneous petition is closed.