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Chamiar Kunchelan Vs. Kandan Damodaran - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 209 of 1959
Judge
Reported inAIR1960Ker284
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10(2)
AppellantChamiar Kunchelan
RespondentKandan Damodaran
Appellant Advocate T.S. Venkiteswara Iyer, Adv.
Respondent Advocate C.M. Devan, Adv. for Respondent 2
DispositionRevision dismissed
Cases ReferredIn Razia Begum v. Sahebzadi Anwar Begum
Excerpt:
- - 6. in the above circumstances i am not satisfied that the lower court has not judicially exercised the discretion vested in it in disallowing the prayer for addition of parties and in this view i dismiss the civil revision petition with costs of the 2nd respondent......1952, out of which the present civil revision petition arises, alleging that the assignment of the kanom right (according to him also the suit transaction was a kanom and not a mortgage) in favour of the 3rd defendant was obtained for and on behalf of the family by their father, that by a subsequent partition one half of the property was given possession to him by the father and that he, the petitioner, has been in possession and enjoyment of his share over since the partition. the plaintiff did not oppose the application, though he did not admit the petitioner's contention that he was entitled to a half share in the properties, the 3rd defendant opposed the application, but in his counter he stated that the petitioner was in actual possession of a portion of the properties as a.....
Judgment:
ORDER

T.C. Raghavan, J.

1. This Civil Revision Petition arises out of an application in the lower court under Order 1, Rule 10, Civil Procedure Code, for impleading the Petitioner as supplemental 4th defendant in the suit. The lower court dismissed the application and hence the Revision.

2. The suit is for arrears of Purappad based on a Kripanaya Kychit, defendants 1 and 2 being the original mortgagees and the 3rd delendant the assignee from them. The 3rd defendant, the main contesting defendant, pleaded that the suit transaction was not a mortgage but a Kanom and hence the suit was liable to be stayed under Kerala Act of 1957.

3. The Petitioner, who is the younger brother of the 3rd defendant, filed I. A. No. 2908 of 1952, out of which the present Civil Revision Petition arises, alleging that the assignment of the Kanom right (according to him also the suit transaction was a Kanom and not a mortgage) in favour of the 3rd defendant was obtained for and on behalf of the family by their father, that by a subsequent partition one half of the property was given possession to him by the father and that he, the petitioner, has been in possession and enjoyment of his share over since the partition. The plaintiff did not oppose the application, though he did not admit the petitioner's contention that he was entitled to a half share in the properties, The 3rd defendant opposed the application, but in his counter he stated that the petitioner was in actual possession of a portion of the properties as a trespasser and that there was a suit already pending for evicting the petitioner therefrom.

4. Order 1, Rule 10 (2) is in wide terms and it gives a wide discretion to the Court to meet every case of defect of parties. The only limitations seem to be that the Court has no power to join a person as a party if he could not have been originally impleaded and the presence of the person added must be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. This discretion vested in the Court is a judicial discretion to be exercised in a reasonable and judicial manner. In Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886 their Lordships of the Supreme Court held that the question of addition of parties under Rule 10 of Order 1 is generally not one of initial jurisdiction but of a judicial discretion, which has to be exercised in view of all facts and circumstances of a particular case. Their Lordships also held that in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject matter of the litigation.

5. Bearing in mind the above principles I shall now, consider the facts of the present case. IB is clear that the petitioner is in possession, of a portion of the suit properties. But there is no evidence to show in what right he is in possession. He claims he is entitled to a half right and is in possession thereof as owner, but the 3rd defendant claims that the petitioner is only a trespasser and a suit is pending on that basis for eviction of the petitioner. The petitioner has not produced any prima facie evidence at least to prove his claim. The Kanom right, or it may be the mortgage, right, stands in the name of the 3rd defendant. Further, the suit is one for arrears of rent and it cannot be converted into a complicated title suit, by the addition of parties, to adjudicate upon the title of the defendants inter se.

6. In the above circumstances I am not satisfied that the lower court has not judicially exercised the discretion vested in it in disallowing the prayer for addition of parties and in this view I dismiss the Civil Revision Petition with costs of the 2nd respondent.


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