M/S.N.S.S.KARAYOGAM NO. 1556, THOTTAMON SOUTH, THOTTAMON MURI, RANNI VILLAGE, RANNY P.O., PATHANAMTHITTA DISTRICT v. SANTHOSH KUMAR PULLUPURAM, P.O., KALACKATTU HOUSE, RANNI P.O., PIN-699711; K.R.PRAKASH, S/O.RAHAVAN NAIR, KUZHIKALAYIL HOUSE, THOTTAMON MURI, RANNI VILLAGE, RANNY TALUK-699711; TREASURER, M/S. N.S.S.KARAYOGAM NO.1556, THOTTAMON SOUTH, RANNY P.O., PATHANAMTHITTA DISTRICT, THOTTAMON MURI, RANNI VILLAGE, PIN-699711

_**OP(C).1930/19**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943** **OP(C) NO. 1930 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OS 19/2015 OF MUNSIFF COURT, RANNI, PATHANAMTHITTA** ## **PETITIONER/S:** 1 M/S.N.S.S.KARAYOGAM NO. 1556, THOTTAMON SOUTH, THOTTAMON MURI, RANNY P.O., PATHANAMTHITTA DISTRICT, RANNI VILLAGE, REPRESENTED BY ITS SECRETARY AND PRESIDENT. 2 THE PRESIDENT, M/S. NSS KARAYOGAM NO.1556, THOTTAMON SOUTH, THOTTAMON MURI, RANNI VILLAGE, RANNY P.O., PATHANAMTHITTA DISTRICT. 3 THE SECRETARY, M/S. N.S.S.KARAYOGAM NO.1556, THOTTAMON SOUTH, RANNY P.O., PATHANAMTHITTA DISTRICT, THOTTAMON MURI, RANNI VILLAGE. BY ADV V.PHILIP MATHEW ## **RESPONDENT/S:** 1 SANTHOSH KUMAR PULLUPURAM P.O., KALACKATTU HOUSE, RANNI P.O., PIN699 711. 2 K.R.PRAKASH, S/O.RAHAVAN NAIR, KUZHIKALAYIL HOUSE, THOTTAMON MURI, RANNI VILLAGE, RANNY TALUK-699 711. 3 TREASURER, M/S. N.S.S.KARAYOGAM NO.1556, THOTTAMON SOUTH, RANNY P.O., PATHANAMTHITTA DISTICT, THOTTAMON MURI, RANNI VILLAGE, PIN-699 711. _**OP(C).1930/19**_ 2 BY ADV SRI.T.K.BIJU (MANJINIKARA) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.7.2021, THE COURT ON 06.09.2021 DELIVERED THE FOLLOWING: _**OP(C).1930/19**_ 3 ## **V.G.ARUN, J. ----------------------------------------------O.P.(C) No. 1930 of 2019 ----------------------------------------------Dated this the 6[th] day of September, 2021** ## **JUDGMENT** The petitioners and the 3[rd] respondent are the plaintiffs in O.S.No.19 of 2015 on the files of the Munsiff’s Court, Ranni. The suit is filed for a direction to the 2[nd] respondent to surrender vacant possession of shop room bearing Door No.XIII/128 in Ranni Grama Panchayat occupied by him. The shop room is situated in a two storeyed building belonging to the 1st petitioner Karayogom. As per the plaint averments, the shop room was leased out to the 2[nd] respondent for 11 months from 1.12.2013 on a monthly rent of Rs.535/-. The period of lease expired on 31.10.2014 and the general body of the 1st petitioner decided to enhance the rent to Rs.900/per month. Thereupon, the 2[nd] respondent filed O.S.No.306/14 before the Munsiff’s Court, Ranni for an injunction restraining the Karayogom from enhancing the rent and forcibly evicting him from the building. That suit was dismissed vide Exhibit P1 judgment dated 15.9.2018. As the 2[nd] respondent was unauthorisedly occupying the room without paying rent, O.S.No.19 of 2015 was filed for a direction _**OP(C).1930/19**_ 4 to the 2nd respondent to surrender vacant possession of the shop room, for realisation of rent at the rate of Rs.535/- for the month of October, 2014 and damages towards illegal use and occupation at the rate of Rs.900/- per month. In his written statement, the 2[nd] respondent admitted the 1[st] petitioner’s title and ownership over the building. He contended that the period of lease is not over and the enhancement of rent is illegal. After the suit was listed for trial, the 1[st] respondent filed I.A.No.850 of 2019 seeking to get himself impleaded on the premise that the plaint schedule property was purchased by the Thottaman Nair Vellala Devi Vilasam Karayogom, of which he is a member. The petitioners stoutly opposed the application contending that that the 1st respondent is not a necessary or proper party for adjudicating the questions involved in the suit and his attempt is to protract the proceedings. Despite objection, the trial court allowed the application for impleadment _vide_ Exhibit P6 order. Hence, the original petition. 2. Heard Sri.Gigi C.George, learned counsel for the petitioners and Sri.T.K.Biju (Manjanikkara), learned counsel for the 1[st] respondent. 3. Learned counsel for the petitioners contended that the court below committed a gross illegality by allowing the impleading application, after finding that the 1[st] respondent is not a necessary party. The defendant in the suit having had admitted the plaintiff’s _**OP(C).1930/19**_ 5 title and ownership over the building. Hence, the proprietary right, if any, of the Thottaman Nair Vellala Devi Vilasam Karayogom ought to be decided in a separate suit. The 1[st] respondent had not produced any document evidencing his authority to represent the Thottaman Nair Vellala Devi Vilasam Karayogom. Merely because notice under Order I Rule 8 CPC was taken out, a total stranger to the proceedings cannot be impleaded, terming him to be an interested person. Such impleadment goes against the fundamentals of Order I Rule 10(2) CPC. 4. Learned counsel for the 1[st] respondent contended that the 1st respondent is a proper party for adjudicating the issues involved in the suit. The court below had allowed the impleading application on being convinced that the 1[st] respondent is an interested person. The 1[st] respondent will substantiate his contention of the Thottaman Nair Vellala Devi Vilasam Karayogom being the title holder of the building by tendering evidence, both oral and documentary. The petitioners are fully aware of this fact and hence, the objection is against impleadment. In support of the contention, reliance is placed on the decision of the Jharkhand High Court in _**Md.Sabir Ansari v. Sada Nanda Mandal and Others**_ [2010 KHC 6667]. 5. The prayer in the suit is for a direction to the defendant to surrender vacant possession of the plaint schedule shop room _**OP(C).1930/19**_ 6 and for recovery of the arrears of rent and damages for illegal use and occupation. The 2nd respondent/defendant has accepted the 1st plaintiff as the landlord. The 1st respondent had sought impleadment contending that the Thottaman Nair Vellala Devi Vilasam Karayogom is the owner of the building. As per Order I Rule 10(2) CPC, the Court is empowered to join any person, whose presence is necessary for enabling the court to effectively and completely adjudicate and settle the questions involved in the suit. The trial court found that the 1[st] respondent's presence is not necessary for adjudicating and settling the questions involved in the suit. Having entered such finding, the court should not have allowed the impleading application on the premise that, notice under Order I Rule 8 having been taken out, the 1st respondent can be impleaded as a proper party, being a person interested in the subject matter and possibility of the decision in the suit affecting the interest of the petitioner. The notice under Order 1 Rule 8 is not an open invitation to all persons claiming interest in the subject matter to join as parties to the suit. For a person to be impleaded pursuant to the notice under Order I Rule 8, he should be having the same interest as that of the plaintiff or defendant. As held by the Apex Court in _**T.N. Housing Board v. T.N. Ganapathy,**_ [(1990) 1 SCC 608], the provisions of Order I of Rule 8 have been included in the Code in public interest, so as to avoid multiplicity of litigation. The condition _**OP(C).1930/19**_ 7 necessary for application of the provisions is that the persons on whose behalf the suit is being brought must have the same interest. In other words either the interest must be common or they must have a common grievance which they seek to get redressed. Here, the interest of the 1st respondent is to establish the proprietary right of the Thottaman Nair Vellala Devi Vilasam Karayogom over the plaint schedule building. By no stretch of imagination can the said interest be equated with the interest of the parties to the suit. As far as the finding that the 1st respondent is a proper party, it may be appropriate to refer to the decision of the Honourable Supreme Court in _**Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd. and Others**_ [(2010) 7 SCC 417]. Therein, explaining the meaning of terms ‘necessary party’ and ‘proper party’ and the power for impleadment of parties vested with the Court under Order I Rule 10(2) CPC, the Apex Court held as under; _“_ _**13.** The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure (“the Code”, for short), which provides for impleadment of proper_ _**OP(C).1930/19**_ 8 _or necessary parties. The said sub-rule is extracted below:_ _“10. (2) Court may strike out or add parties.—The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”_ _**14.** The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party._ _**15.** A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he_ _**OP(C).1930/19**_ 9 _need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”_ Therefor, having found that the 1[st] respondent is not a necessary party, the court had no jurisdiction to implead him against the wishes of the plaintiffs. 6. In _**Md.Ansari**_ (supra) relied on by the learned Counsel for the 1st respondent _,_ it was held that at the stage of application under Order I Rule 10(2), the trial court has to look whether the applicant can show a fair semblance of title or interest and need not evaluate the chances of success or the chance of rejection of the applicant’s claim. The Court also found fault with the trial court for rejecting the impleading application on the ground that the sale agreement was not produced. Therein, the application for impeladment was filed in a partition suit claiming right, title and interest upon part of the suit property based on an agreement. The facts in the instant case are entirely different and therefore the dictum in _**Md.Ansari**_ (supra) has no application. 7. The factual matrix and the legal proposition discussed above leaves this court with no alternative other than setting aside the _**OP(C).1930/19**_ 10 impugned order. In the result, the original petition is allowed and the impugned Exhibit P6 order is set aside. Sd/- **V.G.ARUN, JUDGE** _vgs_ _**OP(C).1930/19**_ 11 ## **APPENDIX OF OP(C) 1930/2019** PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE JUDGMENT IN OS NO.306/2014 DATED 15.09. EXHIBIT P2 COPY OF THE PLAINT IN OS NO.19/15. EXHIBIT P3 COPY OF THE WRITTEN STATEMENT OF THE 2ND RESPONDENT. EXHIBIT P4 COPY OF IA NO.850/19 FILED BY THE FIRST RESPONDENT. EXHIBIT P5 COPY OF THE OBJECTION AGAINST P4. EXHIBIT P6 COPY OF THE ORDER DATED 05.07.2019 IN IA NO.850/2019 IN OS 19/2015 PASSED BY MUNSIFF COURT, RANNY.