Rathnamani and Suresh Kumar v. K.P. Parameswaran, Suresh, N. Radhakrishnan and Aru

## **.IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946** **OP(C) NO. 1406 OF 2017** **ORDER DATED 16.02.2017 IN IA 4043/2016 IN OS NO.440 OF 2015 OF PRINCIPAL MUNSIFF COURT, PALAKKAD** ## **PETITIONERS/PLAINTIFFS:** - **1 RATHNAMANI, W/O.LATE K.RAMANKUTTY, KARUPPANKALAM, KALLEKAD, PIRAYIRI AMSOM, PALAKKAD** - **2 SURESH KUMAR, S/O.LATE K.RAMANKUTTY, KARUPPANKALAM, KALLEKAD,PIRAYIRI AMSOM, PALAKKAD** **BY ADV SRI.VINOD KUMAR.C** ## **RESPONDENTS/3RD PARTY/DEFENDANTS:** - **1 K.P.PARAMESWARAN, S/O.PADMANABHA IYER, 16/150, SHANMUGHAPRIYA, KODUNTHIRAPULLY GRAMAM, KODUNTHIRAPULLY, PALAKKAD-678004** - **2 SURESH, S/O.CHAMI, NELLIPARAMBA, PIRAYIRI AMSOM, PALAKKAD-678006** - **3 N.RADHAKRISHNAN, S/O.NARAYANAN NAIR, NELLIPARAMBA, PIRAYIRI AMSOM, PALAKKAD-678006** - **4 ARU, S/O.KUTTAN, NELLIPARAMBA, PIRAYIRI AMSOM, PALAKKAD-678006** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON** - **03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C).No.1406/2017 -:2:- **C.R.** ## **J U D G M E N T** Ext.P5 order allowing an application for impleadment filed under order I Rule 10(2) of the Code of Civil Procedure (for short 'the CPC’) is under challenge in this original petition. 2. The petitioners are the plaintiffs, and the respondent Nos. 2 to 4 are the defendants in O.S.No.440/2015 on the files of the Munsiff's Court, Palakkad (for short 'the trial court'). The suit was one for permanent prohibitory injunction against trespass. During the pendency of the suit, the 1[st] respondent herein, who was not a party to the suit, filed Ext.P3 application to get himself impleaded as supplemental 4[th] defendant. The trial court allowed Ext.P3 application as per Ext.P5 order. It is challenging the said order; the plaintiffs have filed this original petition. 3. I have heard Sri. C. Vinod Kumar, the learned counsel for the petitioners. In spite of the service of notice, the respondents have not appeared. 4. The suit is one for a permanent prohibitory injunction O.P.(C).No.1406/2017 ## -:3:- based on possession. The case of the plaintiffs is that the plaint schedule property belongs to them and is in their possession, and the defendants are trying to trespass therein. The defendants entered appearance and filed Ext.P2 written statement. They denied the plaint allegations. It was thereafter, the 1[st] respondent filed Ext.P3 application. According to the 1[st] respondent, the plaint schedule property originally belonged to his great-grandfather, and now it belongs to him. It is alleged that the plaintiffs do not have any title or possession over the property. According to him, for the effective adjudication of the questions involved in the suit, he is a necessary party to the proceedings. 5. Rule 10 of Order 1 of CPC provides for addition, deletion and substitution of parties. The object of the rule is to bring on record all the persons interested in the dispute relating to the subject matter of the suit so that all the controversies in the suit may be finally determined once and for all in the presence of all the parties concerned. Sub-rule (2) of Order 10 enables the court to strike out the name of any party improperly O.P.(C).No.1406/2017 ## -:4:- joined, or to add any person as a party who ought to have been joined as plaintiff or defendant or whose presence may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. Under this provision, only two classes of persons may be added as parties to a suit: (i) necessary or (ii) proper party. A ‘necessary party’ is a person who ought to have been joined as a party and in whose absence no decree or order can be passed, while a ‘proper party’ is a person whose presence is necessary for complete and effectual adjudication of the questions involved in the suit. If a person is neither a necessary nor a proper party, he cannot be impleaded in a suit. At the same time, however, each and every person connected with the subject matter of the suit cannot be said to be a necessary or proper party. The power to add a party is general in nature and can be exercised upon an application by any party to the proceedings or by a stranger or by the court _suo motu_ . Where a person applies to be made a party, the court ought to consider whether his/her presence is necessary for deciding the suit or for complete and effectual O.P.(C).No.1406/2017 ## -:5:- adjudication of the matter. The mere fact that fresh litigation can be avoided is no ground to invoke the power under the Rule. 6. As stated already, the suit filed by the plaintiffs is one for injunction simpliciter based on their possession. The question involved in the suit is whether the plaintiffs have possession over the plaint schedule property and whether their apprehension that the defendants may trespass on the property is true and genuine. The 1[st] respondent set up a rival title over the plaint schedule property. A person cannot be impleaded merely because he would be incidentally affected by the judgment or is interested in the fruits of the litigation. What is to be seen in allowing or disallowing an application for the addition of a party is whether such addition would be consistent with the scope of the inquiry necessitated in the pending suit and in the absence of such a party, it would not be possible to completely and effectively adjudicate the controversy raised before the court [ _See._ _**Ramesh v. Municipal Corporation of Greater Bombay**_ (1992) 2 SCC 524]. The title or possession claimed by the 1[st] respondent over the plaint schedule property has nothing to do O.P.(C).No.1406/2017 -:6:- with the dispute between the plaintiffs and the defendants. In other words, the presence of the 1[st] respondent is not at all necessary to resolve the question involved in the case. The expression “all the questions involved in the suit” primarily refers to questions between parties of the suit, i.e., between the plaintiff and the defendant, relating to the right or claim set up by one side and denied or contested by the other side [ _See_ . _**Razia Begum v. Sahebzadi Anwar Begum and Others**_ (AIR 1958 SC 886)]. The expression does not take within its sweep questions, which may arise between co-plaintiffs or between codefendants _inter se_ . 7. The defendant to be added must be a person against whom the plaintiff has some cause or grievance, which ought to be in the action, and it was never intended to apply where the person to be added as the defendant is a person against whom the plaintiff has no claim and does not wish to prosecute any more. It is well settled that a plaintiff is _domius litis_ . It is for him to choose his opponent and to claim relief against him. The court will not allow leave to add a party which would alter the nature or O.P.(C).No.1406/2017 -:7:- character of the suit. A simple suit for injunction cannot, by granting an application to implead a party, be converted into a suit for title. The 1[st] respondent is not at all a necessary or proper party to the proceedings. His remedy is to institute a separate suit to establish his right, if any, over the property. It is trite that any decree passed by the court will not bind the person who is not a party to the suit except in a representative suit. Hence, the trial court erred in allowing Ext.P3 application. The impugned order is accordingly set aside, Ext.P3 application is dismissed, and the original petition is allowed. Sd/- **DR. KAUSER EDAPPAGATH JUDGE** **kp** O.P.(C).No.1406/2017 ## -:8:- ## **APPENDIX OF OP(C) 1406/2017** **PETITIONER EXHIBITS** **EXHIBIT P1** **TRUE COPY OF PLAINT IN OS 440/2015 FILED BEFORE MUNSIFFS COURT, PALAKKAD** **EXHIBIT P2** **TRUE COPY OF WRITTEN STATEMENT IN OS 440/2015 FILED BEFORE MUNSIFFS COURT, PALAKKAD** **EXHIBIT P3** **TRUE COPY OF IA 4043/2016 DATED 3.9.2016 FILED BEFORE MUNSIFFS COURT, PALAKKAD** **EXHIBIT P4** **TRUE COPY OF COUNTER STATEMENT IA 4043/2016 FILED BEFORE MUNSIFFS COURT, PALAKKAD** **EXHIBIT P5** **TRUE COPY OF ORDER IN IA 4043/2016 DATED 16.2.2017 FILED BEFORE MUNSIFFS COURT, PALAKKAD**