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Neelakantha Pillai Ramachandran Nair Vs. Ayyappan Pillai Kumara Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 2620 of 1976
Judge
Reported inAIR1978Ker152
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 97 and 115 - Order 1, Rule 10(2) - Order 34, Rule 1
AppellantNeelakantha Pillai Ramachandran Nair
RespondentAyyappan Pillai Kumara Pillai
Advocates: P. Sukumaran Nair,; A.K. Chinnan,; V. Vyasan Poti an
DispositionRevision dismissed
Cases ReferredVenkata Reddi v. Pethi Reddi
Excerpt:
.....plaintiff made party to petitioner - petitioner objected to be party after passing of preliminary decree - party may be added after passing of preliminary decree if impleadment does not involve ripping open of any of matters dealt in preliminary decree - impleadment of petitioner as party valid. - - --(1) whether a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just...........10. civil p. c. for impleading the revision petitioner herein as an additional defendant in the suit. the suit o. s. no. 2522 of 1968 has been filed by the respondent herein for redemption of a mortgage of 1104. that suit was instituted on 20-12-1968. prior thereto, the plaintiff had issued a notice of suit to the defendant on 10-12-1968 to which there was noreply. it would now appear that subsequent to the receipt of the said notice and just two days prior to the institution of the suit, the defendant-mortgagee had executed a document dated 18-12-1968 purporting to transfer his mortgage right in favour of the revision petitioner. the plaintiff however was kept in the dark about this. the result was that the suit was filed with the original mortgagee as the sole defendant and that.....
Judgment:

Balakrishna Eradi, J.

1. This Civil Revision Petition is directed against an order passed by the 1st Addl. Munsiff, Neyyattinkara allowing I. A. No. 2689 of 1975 filed by the plaintiff in O. S. No. 2522 of 1968 of his court under Order 1, Rule 10. Civil P. C. for impleading the revision petitioner herein as an additional defendant in the suit. The suit O. S. No. 2522 of 1968 has been filed by the respondent herein for redemption of a mortgage of 1104. That suit was instituted on 20-12-1968. Prior thereto, the plaintiff had issued a notice of suit to the defendant on 10-12-1968 to which there was noreply. It would now appear that subsequent to the receipt of the said notice and just two days prior to the institution of the suit, the defendant-mortgagee had executed a document dated 18-12-1968 purporting to transfer his mortgage right in favour of the revision petitioner. The plaintiff however was kept in the dark about this. The result was that the suit was filed with the original mortgagee as the sole defendant and that position remained till 22-10-1970 on which date a preliminary decree for redemption was passed. It is necessary to mention at this stage that even though the defendant in the suit had been duly served with summons he chose to remain ex parte without even filing a written statement. On 4-12-1970 the plaintiff filed an application praying for the passing of a final decree in the suit. Notice of that application was duly served on the defendant on record. After a lapse of very nearly four years an objection petition was put in by the defendant on 31-10-.1974 mentioning for the first time that the mortgage right had been transferred by him in favour of the revision petitioner as per the document dated 18th Dec. 1968. On coming to know about the said fact from the said objection petition the plaintiff filed I. A. No. 2689 of 1975 out of which this revision petition arises, praying that the assignee, namely, the present revision petitioner, should be impleaded as a party in the suit. That application was opposed by the revision petitioner contending that it was not open to the court below to implead additional parties under Order 1, Rule 10. Civil P. C., after a preliminary decree had already been passed in the suit. The lower court overruled that contention and allowed I. A. No. 2689 of 1'975. Hence this revision petition filed by the assignee who has been impleaded as the additional 2nd defendant.

2. Our learned brother Narendran. J. before whom this revision petition originally came up for hearing considered that the case should be heard by a Division Bench, since there has not been any pronouncement of a Division Bench of this Court on the Question of law as to whether subsequent to the Passing of the preliminary decree for partition or redemption it is legally competent for the court to implead additional parties under Order 1. Rule 10, C. P. C. It is pursuant to that order of reference that the case has now come up before us.

3. In support of his contention that the court below had no jurisdiction to order the impleadment of additional parties subsequent to the passing of a preliminary decree, the learned advocate for the revision petitioner strongly relied on the decision of a learned Single Judge on the Orissa High Court reported in Baman Chandra v. Balaram (AIR 1966 Ori 160) and also a ruling of our learned brother Narendran. J. reported in Vasu-deva Kallurao v. Ramachandra Rao (1977 Ker LT 414) wherein the Orissa ruling has been followed. As against this, the learned advocate appearing for the respondents pressed into service certain rulings of the Andhra Pradesh. Madras and Patna High Courts to which we shall presently be referring. Before we discuss the rulings cited before us, it is necessary to read Order 1. Rule 10. C. P. C. which is the relevant provision contained in the Code empowering the court to strike out or add parties:

'10. Suit in name of wrong plaintiff:--

(1) Whether a suit has been instituted In the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(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.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added,' plaint to be amended.-- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amend-ed copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of theIndian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.'

It is with the interpretation of Sub-rule (2) of Rule 10 that we are directly concerned with in this case. Going by the plain words used in that provision, the court is empowered to order at any stage of the proceedings the addition of the name of any person who ought to have been joined as a party to the action whether as plaintiff or defendant, or whose presence before the court in such capacity may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. What is however contended by the petitioner is that in the case of suits for partition or redemption where the passing of more than one decree is contemplated, the earlier being preliminary in nature, although the suit will undoubtedly be pending until a final decree is passed, several matters get finally determined on the passing of a preliminary decree dealing with those questions and that it is not contemplated that new party should be impleaded after the passing of such preliminary decree because that would necessarily involve ripping open the finality of the determination made in the preliminary decree. This is the aspect mainly relied on in the decision of a learned Single Judge of the Orissa High Court in Bamon Chan-dra v. Balaram (AIR 1966 Ori 160). There it has been laid down as a general principle that except in certain exceptional circumstances such as impletion of transferees subsequent to the preliminary decree or death of parties whose rights were carved out in the preliminary decree' there cannot be any addition of new parties in an action for partition or redemption subsequent to the passing of the preliminary decree. In Krishna Aiyar v. Subrahmania Aiyar (AIR 1924 Mad 648) it was held that where circumstances render it necessary the court may add a person interested in the equity of redemption as a party even after the preliminary decree and can reopen the decree so far as the added party is concerned. The said view has been reite-rated in Swaminatha lyer v. Alagiri-swami Chettiar ((1955) 68 Mad LW 831): (AIR 1956 Mad 288) and in Swayam-prakasam v. Vijayarangam ((1970) 1 Mad LJ 243). In the last mentioned case ((1970) 1 Mad LJ 243) it is observed by Sadasivan J. that the proceedings in a suit for partition cannot come to an end till the final decree is passed and that the court has jurisdiction at any stage before the passing of a final decree to order impleadment of any person as an additional party in case it is satisfied that such person ought to have been joined as a party to the suit or that his presence before the court may be necessary to enable the court to effectually and completely adjudicate upon all the questions arising therein, A Division Bench of the Andhra Pradesh High Court has taken the same view in R. A. Nara-singa Rao v. Chunduru Sarada (AIR 1978 Andh Pra 226) approving an earlier ruling of a Single Judge of that Court reported in Syed Mohiddin v. Abdul Rahim (AIR 1964 Andh Pra 260). Our attention was also drawn to the rulings in Daw Aye v. U Kwe (AIR 1935 Rang 23) and Kunja Behari v. Bundudhar Panda (AIR 1942 Pat 185 (2)) which are also to the same effect.

4. After having given our anxious consideration to all aspects of the matter, we are of opinion that (in cases such as suits for redemption or partition) where the passing of a preliminary decree is contemplated, the power conferred under Order 1, Rule 10, C. P. C. is to be regarded as circumscribed by the provisions contained in Section 2 (2) and Section 97 of the Code. As pointed out by the Supreme Court in Venkata Reddi v. Pethi Reddi (AIR 1963 SC 992), Section 97, C. P. C. clearly indicates that in respect of the matters covered by a preliminary decree, the said decree is to be regarded as embodying the final decision of the court passing it. It will not, therefore, be reasonable to understand the provision in Order 1, Rule 10, C. P. C. as empowering the impleadment of additional parties in a suit in circumstances which would necessitate the ripping open of the determination made in the preliminary decree already passed in the suit. However, one can very well conceive of several situations where an impleadment of an additional party may be asked for or may be considered by the court to be necessary for a proper and complete adjudication of the matters in controversy in such a suit and such impleadment would not involve the reopen-ing of matters already finally settled by the preliminary decree. The correct legal position in our opinion is that while the passing of a preliminary decree in a suit for partition or redemption will not ipso facto operate as a total bar against the addition of any new parties to the action, the impleadment of additional parties subsequent to the passing of the preliminary decree is permissible only if none of the questions already settled by the preliminary decree would have to be reopened by the court as a consequence of such impleadment; the addition of parties can be allowed at that stage only on condition that the further proceedings to be taken in the suit will be only on the basis of the preliminary decree already passed, and none of the questions settled by the preliminary decree will be allowed to be reagitated on the ground that the person newly impleaded was not before the court at the time of the passing of the preliminary decree. As to whether or not the impleadment of a new party should be allowed on the aforesaid condition in the circumstances of a particular case will have to be considered by the court on the merits of each case as and when the said question arises. No party should be impleaded against his will if that would involve his being subjected to the terms of a preliminary decree which was-s passed without his being on the party array, particularly when there are pleas which the said party could have nut forward in respect of the matters considered and settled by the preliminary decree.

5. We do not, therefore, find it possible to agree wholly with the principle laid down in either of the two sets of rulings cited before us. as, in our opinion, it would not be right either to completely rule out the addition of parties after the passing of a preliminary decree or to recognise an unrestricted power to allow the impleadment of additional parties even after the preliminary decree so as to rip open matters already decided and settled by the preliminary decree. As we have already indicated the correct view seems to us to be that the power of the court to implead additional parties at a stage subsequent to the passing of a preliminary decree in an action for partition or redemption must be limited to cases where such impleadment of additional parties would not involve the ripping open of any of the matters already dealt with in the preliminary decree and the case can be proceeded withthe additional parties on record on the basis of the determination already given in the preliminary decree.

6. Tested in the light of the above principle the order passed by the court below permitting the plaintiff to implead the revision petitioner as an additional defendant cannot be said to be erroneous or illegal. The mortgage sued on is admitted and the only contention that the additional defendant seeks to put forward is that he should be awarded the value of improvements before he is called upon to surrender the property. The question of value of improvements is very often relegated for consideration to the final decree stage in a mortgage suit. In the preliminary decree passed in this suit this question has not been dealt with or determined. The impleadment of the 2nd defendant at this stage does not, therefore, involve the reopening of any of the matters settled by the preliminary decree. The order of the court below does not, therefore, call for any interference. We make it clear that the revision petitioner who is impleaded as the 2nd defendant can urge all his contentions in respect of his claim for value of improvements in the course of the final decree proceedings.

7. The revision petition accordingly fails and is dismissed. The parties will bear their respective costs.


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