C. Gomathy Amma v. Narayanaruru Thrivikramaruru (2nd respondent deleted)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 13TH DAY OF DECEMBER 2012/22ND AGRAHAYANA 1934** ## **CRP.No. 1426 of 2003 (H)** **-----------------------AGAINST THE JUDGMENT IN CMA.440/2002 of II ADDL.D.C.,TRIVANDRUM OS.713/2001 of PRL.M.C.,TRIVANDRUM** **REVISION PETITIONER/1ST APPELLANT/1ST COUNTER PETITIONER: -----------------------------------------------------** **C.GOMATHY AMMA, WIDOW OF BALAKRISHNAN NAIR, RESIDING AT T.C. VIII/ 719, RADHAKRISHNA HOUSE, ELAMKULAM, SREEKARYAM P.O., THIRUVANANTHAPURAM** **BY ADVS.SRI.T.C.SURESH MENON SRI.R.RAJA RAJA VARMA SMT.M.R.VALSA SRI.SREEKANTH.K.R** **RESPONDENT/2ND APPELLANT/ PETITIONER/ 2ND COUNTER PETITIONER:** **--------------** **1. NARAYANARURU THRIVIKRAMARURU, S/O VASUDEVARURU, RESIDING AT KALLUMADAM, UMAYANALLUR, KOLLAM** ***2. UNNIKRISHNAN, S/O. C. GOMATHY AMMA, RESIDING AT T.C. VIII/719, RADHAKRISHNA HOUSE, ELAMKULAM, SREEKARYAM P.O, THIRUVANANTHAPURAM.** **(2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DT. 3.10.2012 IN I.A. 2410/2012 IN CRP 1426/2003)** **R,R1 BY ADV. SRI.G.S.REGHUNATH** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-12-2012, ALONG WITH WPC. 41130/2003, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - C.R.P No.1426 of 2003 & W.P(C) No.41130 of 2003** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 13[th] day of December, 2012** ## **O R D E R / J U D G M E N T** The civil revision petition is filed by the first defendants before the court below, against an order in C.M.A 440/2002 which confirmed the common order passed by the trial court in I.A No.1008/2001 and I.A No.7910/2001 in O.S No. 713/2001. The plaintiff claimed ownership and possession of A schedule property and alleged apprehension of demolition of C schedule wall on the boundary of A and B schedule properties; the latter of which belong to the defendant. The plaintiff claimed title by virtue of a decree in O.S No.110/1958, in execution of which he came into possession of the property on 17.7.2000, the date on which the delivery was effected. The suit was filed before the Vacation Court on 23.4.2000 and a status quo order was made on 25.4.2000. The regular Court having taken up the matter, the plaintiff filed I.A No.7912/2001 on 22.8.2001 complaining that on 19.8.2001, the defendants and five other hired persons CRP.1426/2003 & WPC No.41130/2003 : 2 : demolished the wall and hence prayed for a mandatory injunction to re-build the wall. I.A No.1008/2001, in which the status quo order was passed by the Vacation Judge was also heard along with this application. The court below found that there was demolition as alleged and held the plaintiff entitled to a mandatory injunction. I.A No.7910/2001 was allowed and there was no separate order passed in I.A No.1008/2001. This order was confirmed by the appellate court which is impugned in the revision. 2. It is very pertinent that there is nothing on record to show whether, after the regular Court took up the matter, any orders were passed in I.A No.1008/2001, and in fact, an injunction was in existence at the time of the alleged demolition. Normally, this Court would have remanded the matter, by reason only of the passage of time, after setting aside the order granting mandatory injunction and left it to the discretion of the court below to be decided after trial and in the final judgment to be passed. However, there is a curious situation in so far as the plaintiff, subsequent to the filing of the CRP, approached the trial court with an application to CRP.1426/2003 & WPC No.41130/2003 : 3 : withdraw the suit. Then five other persons attempted to come on record by filing an impleading petition. This situation gave rise to the writ petition filed under Article 227, wherein the common order passed by the court below in four interlocutory applications is challenged. 3. I.A No.1529/2003 was filed by the plaintiff, seeking permission to withdraw the suit, as having been settled with the defendant. The defendant filed I.A No. 3353/2003 to strike out the pleadings. I.A No. 1625/2003 was filed by the petitioners 1 to 5 therein, seeking impleadment as plaintiffs 2 to 6. They also filed one other I.A No.3185/2003; seeking impleadment as additional defendants. This was as an abundant caution, if at all, their prayer to be impleaded as plaintiffs, was dismissed. The case of the petitioners in the affidavit filed along with the impleading petition was that they had obtained assignment of the entire plaint schedule property from the plaintiff on 19.8.1994 by virtue of five separate sale deeds in favour of each of them. The plaintiff having obtained delivery of the properties on 17.7.2000 was said to be in possession of the property. It was only thereafter the plaintiff CRP.1426/2003 & WPC No.41130/2003 : 4 : executed a release deed; on 25.5.2001, at which point, he handed over possession of the plaint schedule property. 4. It was contended that the assignees were in the bonafide belief that the plaintiff would prosecute the suit and in the context of the withdrawal application filed by the plaintiff it has become necessary for them to come on record as additional plaintiffs since they were in fact, the title holders in possession of the plaint schedule property. On the basis of the specific contention that the plaintiff had no title at the time when the suit was filed, the defendants filed I.A No. 3353 of 2003 to strike out the pleadings under Order 6 Rule 16. The interlocutory applications were considered together and the plaintiff's application to withdraw the suit as also the defendants' application to strike out the pleadings were dismissed. The prayer in I.A No. 1625/2003 for impleading the petitioners therein as additional plaintiffs was allowed and as a consequence, their claim for being impleaded as additional defendants was rejected. The common order is challenged under Article 227 in the writ petition. 5. In the context of the subsequent developments in the CRP.1426/2003 & WPC No.41130/2003 : 5 : suit after the filing of the Civil Revision Petition, this Court is of the opinion that the Writ Petition has to be considered first. I have heard the learned counsel appearing for the petitioner/defendants and the learned counsel appearing for the respondents 3 to 7. 6. The learned counsel for the writ petitioner would contend that the suit itself is not maintainable for reason of the plaintiff having no title at the time of filing of the suit. The respondents 3 to 7 could not have sought impleadment since their assignment was not during the pendency of the suit. The learned counsel for the respondents 3 to 7 however, would contend that since the original plaintiff was in possession of the properties after delivery of the same in execution, it was he who was competent to approach the Court for injunction simplicitor. The only prayer in the suit was to restrain the defendants from interfering with the possession of the plaint schedule property and from demolishing the boundary wall; C schedule. Even after possession was given to them, it is contended, that, they were in the bonafide belief that the suit will be prosecuted by the plaintiff and the plaintiff having CRP.1426/2003 & WPC No.41130/2003 : 6 : turned against them they had no other option but to approach the Court seeking impleadment to protect their rights. 7. The court below, relied on decisions of this Court reported in **Chinnan Kesavan v. Gouri Amma [AIR1959 KER 180], Mamu v. Kunhamina Umma [1971 KLT 296]** and **Cherukutty v. Velappu [1987 (1) KLT 565],** to allow the impleadment under Order 1 Rule 10 and Section 146 of the Civil Procedure Code. The learned counsel for the respondent would further support the order as being permissible under Order 22 Rule 10. 8. **Chinnan Kesavan** (supra) was a case in which the plaintiff, who filed a suit for redemption, assigned his rights for equity of redemption to another while the suit was pending. The suit was continued by the original plaintiff and decree also obtained. In execution, the plaintiff and the assignee joined together. The judgment debtor opposed the same contending that there was no valid transfer of decree as contemplated by Order 21 Rule 16 of the Code. The execution court overruled the objection but the appellate court found that assignment made while the suit was pending could not be CRP.1426/2003 & WPC No.41130/2003 : 7 : taken as an assignment of the decree, since the decree was latter in point of time. The Division Bench of the High Court also approved the said findings. However, it was found that Section 146 of the Civil Procedure Code entitled the assignee to execute the decree and reap its benefits since he was a person claiming under the decree holder and the sweep of section 146 would definitely take in such a case. 9. **Mamu(supra** ) again considered Order 22 Rule 10 and Section 146. There, the second respondent was the owner of the property which was mortgaged in favour of the first respondent. The mortgagee filed a suit to recover the amount and an ex-parte preliminary decree was passed. Without knowledge of the decree, the revision petitioner purchased the equity of redemption. On knowing about the passing of the ex-parte decree the revision petitioner was before the court below seeking, setting aside of the ex-parte decree, condonation of delay in filing the application and also to implead the revision petitioner as the additional defendant. This Court found that the suit cannot be said to have concluded since it was only a preliminary decree that was passed under CRP.1426/2003 & WPC No.41130/2003 : 8 : Order 34 Rule 3. The revision petitioner hence was found to be entitled to come on record relying on a decision of the Supreme Court in **Sm.Saila Bala Dassi v. Sm. Nirmala Sundari Dassi & another [AIR1958 SC 394].** The Supreme Court in the said decision held that the expression, “claiming under”, is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule 10 CPC. 10. **Cherukutty (supra)** was from a suit for realisation of money on the basis of a promissory note. The plaintiff, during the pendency of the suit assigned his rights on the promissory note, to one other person. The suit, however, was continued by the plaintiff, who later died. On the death of the plaintiff, before the suit abated, the assignee came forward with an application to implead as additional plaintiff and seeking permission to continue with the suit, which was declined by the lower court. This Court found that under Order 22 Rule 10 it ought to have been allowed especially, since, the suit had not abated. It was held that though it would have been desirable for the plaintiff to come on record immediately after the assignment was made, there was nothing wrong in permitting CRP.1426/2003 & WPC No.41130/2003 : 9 : the plaintiff to continue the suit. On the plaintiff's death the assignee had approached the Court before the suit abated and it was open and perfectly legal for the assignee to continue the suit, was the finding. 11. This Court is of the opinion that the facts in the instant case are clearly distinguishable from that of the above cited decisions. The suit was filed on 23.4.2001 claiming not only possession but also title under a decree in O.S No.110/1958. The plaintiff was silent about the assignment made by him in 1994. He relied on the decree as also the delivery effected to him on 17.7.2000. Subsequently, the plaintiff filed an application for withdrawal; at which point the applicants in I.A No. 1625/2003 sought impleadment as plaintiffs and resisted the application for withdrawal. It is not as if, the respondent 3 to 7, who were the applicants in I.A No.1625/2003 was not aware of the suit. The counsel for the petitioner has made available, on my direction, the affidavit accompanying the Interlocutory Application filed for impleadment before the lower court. This Court looked into it only because the trial court had noticed the contention of the CRP.1426/2003 & WPC No.41130/2003 **==> picture [26 x 9] intentionally omitted <==** respondents 3 to 7 that they had obtained assignment in 1994 and were in fact, behind the filing of the suit. The affidavit dated 10.2.2003, specifically contend that the respondents 3 to 7 by five separate sale deeds obtained ownership over the entire plaint schedule property in 1994. It is also contended that the sale deeds are not produced since they have been mortgaged to a bank. The delivery effected by the original plaintiff on 17.7.2000 was also contended to be on behalf of respondents 3 to 7. They also contend that on 17.7.2000 the property vested with them. 12. The learned counsel for the respondent, however, would take me through the specific contention that a release deed was executed by the original plaintiff on 25.5.2001 and only then the formal possession was handed over to respondents 3 to 7. According to this Court, that sentence cannot be read out of context. The respondents 3 to 7 specifically contended that the properties were mortgaged to a bank after they were conveyed with a title in 1994. This belies the statement that there was a defect to their title which was later cured by a release deed. Even the delivery on 17.7.2000 CRP.1426/2003 & WPC No.41130/2003 **==> picture [26 x 9] intentionally omitted <==** was contended to be on behalf of the respondents 3 to 7. It is also the case of the respondents 3 to 7 that they were aware of the filing of the suit and that it was on their instruction that the original plaintiff filed the suit. There is no explanation as to why they themselves did not file a suit and the contention that they sought impleadment to avoid multiplicity of suits is not worth noticing. 13. The learned counsel for the respondent would urge on the basis of **Kesava Bhat v. Subraya Bhat[1979 KLT 766]** that for seeking an injunction simplicitor, possession alone was relevant and not title. The counsel also places before me **Kunjan Nair Sivaraman Nair v. Narayanan Nair** **[2004 (1) KLT 1082]** to contend that the immediate cause of action for filing a suit was the apprehension of demolition. Here is a case where the possession of the plaintiff was said to be on behalf of the respondents 3 to 7. The contention of the respondent 3 to 7 is that during the pendency of OS 110/58 they were assigned with the title of the plaint A schedule property. The original plaintiff alone continued to be a party in O.S No.110/58. There is absolutely no infirmity in that. The CRP.1426/2003 & WPC No.41130/2003 : 12 : decree was passed and whatever rights that had accrued to the original plaintiff, from the said decree, would enure to the benefit of the assignees. They were in fact, entitled to file an execution. But, they chose not to and the original plaintiff received possession by delivery effected through Court; but on behalf of the respondents 3 to 7. This is not to say that only the original plaintiff could have filed a suit based on possession. 14. The possession does not at all efface the title and in any event it was the specific claim that the possession of the original plaintiff was for and on behalf of the respondents 3 to 7. **Ramprasad Dagaduram v. Vijayakumar Motilal Hirakhanwala and others [AIR 1967 SC 278]** was a case in which the plaintiffs sued to enforce a mortgage on the ground that he was adopted by his grandmother and was entitled to succeed to her. The lower court having refused to accept the adoption, the plaintiff was before the High Court. Before the High Court, in the appeal, the plaintiff made an application to implead his mother as additional plaintiff and two of her siblings as additional defendants; on the ground that they in CRP.1426/2003 & WPC No.41130/2003 : 13 : any event would succeed to their mother. The High Court allowed the impleadment and passed a preliminary decree in favour of the additional plaintiff and the additional defendants. The Hon'ble judges of the Supreme Court differed on the procedure adopted by the High Court to implead the additional plaintiff and two defendants. But the Bench concurred in reversing the decision of the High Court, in so far as finding that, the plaintiff had instituted the suit for himself on the claim of adoption and by seeking impleadment of the actual legal heirs; is putting up a claim antagonistic to the original claim. It is pertinent that, the Supreme Court held that the suit was not one filed in a representative capacity. The plaintiff sued on the strength of the adoption, and not as a representative of the children of his grandmother(paragraph 7 & 15). 15. Looking at Order 1 Rule 10, it cannot be disputed that it postulates a situation where there is a bonafide mistake in instituting a suit in the name of a wrong person or when a doubt arises as to who should have filed the suit. In the instant case, it cannot be said that there was a bonafide mistake. The CRP.1426/2003 & WPC No.41130/2003 : 14 : respondents 3 to 7 voluntarily chose to keep away and instigated the institution of a suit by a person who did not have any title over the property. It is not clear as to why the respondents 3 to 7 chose to keep away. The provisions of subrule (2) of Rule 10 of Order 1 also does not enable the respondents to claim for impleadment since in the present case, the plaintiff seeks withdrawal of the suit. It has been held in **Anokhe Lal v. Radhamohan Bansal and others [1996(6) SCC 730]** that the Court should have been very circumspect in dealing with the application of a third party seeking leave to become party in the suit, when the plaintiff, who is the dominus litis of the suit is opposed to it. The plaintiff who is the master of the suit, is seeking withdrawal and respondents 3 to 7 seek continuation of the proceedings, on totally different pleadings. 16. Order 22 Rule 10 also does not come to the aid of respondents 3 to 7 since it deals with the procedure in case of assignment before the final order in the suit and takes within its ambit only assignment, creation or devolution of any interest during the pendency of the suit. The interest in the CRP.1426/2003 & WPC No.41130/2003 : 15 : plaint A schedule property, as has been found by this Court, and admittedly, was assigned in favour of the respondents 3to 7 long before the suit was instituted. Section 146 also does not help the respondents 3 to 7 though the scope and ambit of the beneficial provision has been found to be quite wide. Here is a case, where the original title holders who were in possession, allegedly through another, failed to come before Court. They instigated a suit by a person who had no title. The suit itself was not maintainable for reason of the plaintiff having neither possession nor title at the time when the suit was instituted. 17. Law frowns upon such conduct of persons who choose to deliberately keep away from Court and set up another who has no cause of action to claim a relief, that too on the strength of obviously false pleadings. Such persons having not chosen to come before Court with a properly instituted suit, cannot claim to be impleaded at a later stage to validly carry on a proceeding; the very institution of which has been proved to be suspect. It has also been held that such impleadment cannot be as a matter of course and none can claim a vested right for such impleadment. Impleadment in a CRP.1426/2003 & WPC No.41130/2003 : 16 : proceeding has to be with the leave of the Court. The suit was not one instituted in a representative capacity and the third parties, if now impleaded, would have pleadings antagonistic to that of the original plaintiff. The order of the lower court, according to me, is not based on sufficient legal grounds and is patently erroneous. 18. On the strength of the findings above, this Court is of the opinion that Ext.P1 order, produced in the writ petition, is liable to be set aside, for reason of it being beyond the scope and jurisdiction of the Court in the context of the withdrawal application filed by the plaintiff. I.A No.1529/2003 filed in O.S No.713/2001 hence is allowed and the plaintiff is permitted to withdraw the suit. The suit hence, is dismissed, as withdrawn. In the context of this Court permitting the plaintiff to withdraw the suit all the other I.A's are closed as unnecessary. The Civil Revision Petition also no longer survives, since, the suit itself has been dismissed as withdrawn. The orders passed in the Civil Revision Petition, on the withdrawal of the suit, needless to say, are unenforceable. The Writ Petition is allowed and the Civil Revision Petition is closed as unnecessary. CRP.1426/2003 & WPC No.41130/2003 **==> picture [26 x 9] intentionally omitted <==** 19. Obviously, it will be open to the parties to work out their remedies in accordance with law. It is clarified that this court has not entered into any findings on the title and possession either of the parties to the suit or the persons who sought impleadment. The findings are only with respect to the claim to seek impleadment as additional plaintiffs in the suit in the context of the original plaintiff having sought for withdrawal of the suit. The Writ petition is allowed and the CRP is closed. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma **//** true copy// P.A to Judge