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Ponnuswami Reddiar Vs. Lalitha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 2116 of 1971
Judge
Reported inAIR1974Mad121
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 1, Rule, 10
AppellantPonnuswami Reddiar
RespondentLalitha and ors.
Excerpt:
.....1 rule 10 of code of civil procedure, 1908 - respondent no. 1 sought to implead petitioner as party in suit - respondent no. 1 filed suit against respondent no. 2 and 3 for rendition of accounts - court under order 1 rule 10 (2) may order to join name of person whose presence may be necessary in order to enable it to effectually and completely adjudicate and settle upon all questions - prayer in plaint was for accounting of jewels that had been entrusted to respondents no. 2 and 3 - no question of joining petitioner as no relief had been claimed by respondent no. 1 - court can effectively adjudicate on all issues without presence of petitioner. - - 17, with respondents 2 and 3 by the first respondent was true and that respondents 2 and 3 will have to account and pay for the..........barred.6. the subordinate judge took up for consideration the question as to whether the third party, ponnuswami, should be impleaded in the suit. he allowed the application after observing thus:--'it may be that plaintiff (first respondent herein) does not desire a decree against ponnuswami (petitioner herein) but nevertheless this court is bound by the order of the appellate count as well as the high court directing him to implead ponnuswami reddiar as he is a necessary party..............it is open to ponnuswami reddiar (petitioner herein) after he is impleaded in the suit to raise whether contentions including the question of limitation in his pleadings and contest the suit.'aggrieved by the order of the subordinate judge, this civil revision petition has been preferred by.....
Judgment:
ORDER

1. This revision petition arises out of the order passed in I.A. 258 of 1971 in O.S. 81 of 1964 on the file of the Sub Court, Tiruchirapalli. The first respondent herein filed that application under Order 1, Rule 10 and Section 151, Civil P.C. praying to implead the petitioner herein as a party defendant in the suit. It is necessary to narrate the events that preceded the filing of the application under Order 1, Rule 10, Civil P.C. by the first respondent herein.

2. Lalitha, the first respondent herein filed the suit O.S. 81 of 1964 against respondents 2 and 3 for rendition of accounts of the value of all the jewels which the first respondent had entrusted with them. The suit was decreed on 24-3-1966 directing rendition of accounts by the second and third respondents to the first respondent. On appeal by respondents 2 and 3 of the District Court Tiruchirapalli in A.S. 427 of 1966, the District Judge found that the entrustment of the jewels listed in Ex. A.17, with respondents 2 and 3 by the first respondent was true and that respondents 2 and 3 will have to account and pay for the jewels, while disposing of the appeal the District Judge observed--

'There is nothing to show that out of sheer good-will, the first respondent (petitioner herein) may have agreed to bear the entire expenses of three substantial litigations launched by the appellant (first respondent herein).......... Inevitably, therefore, the expenditure of litigation in part at least must have come out of the sale or pledge of jewellery of the appellant (first respondent herein). Therefore, the relief sought obviously is to recover the balance of value either in the shape of case or the remaining jewellery of the appellant (first respondent herein) after debiting against her the expenditure of the litigation on a proper proof thereof. But it is not the case of the appellant (first respondent herein) that respondents 2 and 3 (respondents 2 and 3 herein) were in charge of the conduct of the litigation in which she was involved or that they sold the jewellery or incurred any expenditure in connection with the litigation. On the other hand, the case of the appellant (first respondent herein) is that the first respondent (petitioner herein) did so. Yet, the first respondent (petitioner herein) has not been made a party to the suit. Therefore, the best way of disposing of the suit seems to me to remand so that the first respondent (petitioner herein) may also be made a party thereto and then (1) take an account of the expenditure incurred for the litigation, (2) the precise amount realised by the sale if any, of the jewels, and (3) if none of the jewels are available, determine the value of the jewels are available, determine the value of the jewels and (4) set off the expenditure of the litigation against the same and enable the appellant (first respondent herein) to recover the balance.'

With these observations, the District Judge remanded the suit to the trial Court for the fresh disposal.

3. On appeal against the order of remand by respondents 2 and 3 herein before this Court in S.A. 877 of 1968, Kailasam, J. dismissed the second appeal with the following observations:--

'The only point is whether the order of remand can be sustained. Taking into account that Ponnuswami Reddiar (petitioner herein) is a necessary party, I do not think that the order of remand directing to implead him and to go into the question mentioned by the lower appellate Court is erroneous. Therefore, the order of remand will have to be confirmed. In directing remand, the lower appellate Court has given some findings. As the entire case will be reopened in the presence of Ponnuswami Reddiar who was not a party to the prior proceedings, these findings will have to be vacated and the matter gone into afresh.'

4. The first respondent here also filed O.S. 19 of 1964 against the petitioner (Ponnuswami Reddiar) for rendition of a true and correct account of the money which she had entrusted with him. According to her, she entrusted a sum of Rs. 10,000 with him. The trial Court dismissed the suit. The first respondent preferred A.S. 613 of 1966 on the file of the District Court of Tiruchirapalli. The District Judge rendered a common judgment both in A.S. 613 of 1966 and in A.S. 427 of 1966, by which he dismissed the appeal filed by the first respondent (A.S. 613 of 1966). The first respondent preferred S.A. 1464 of 1968 before this court. The said second appeal was heard along with S.A. 877 of 1968. By a common judgment, Kailasam, J., dismissed S.A. 1464 of 1968.

5. Pursuant to the abovesaid observations made by the District Judge, in A.S. 427 of 1966, confirmed by the High court in S.A. 877 of 1968, the first respondent preferred I.A. 258 of 1971 under Order I Rule 10 and Section 151, Civil Procedure Code for impleading the petitioner herein as a party defendant in the suit. O.S. 81 of 1964. In his affidavit filed in support of that application, the first respondent herein referred to the judgments in A.S. 427 of 1966 and S.A. 877 of 1968 and prayed for impleading Ponnusami as a defendant in the suit. In the counter filed by Ponnusami (petitioner herein) he contented that there are no grounds for adding him as a party to the suit at the present stage and that the application is barred by limitation. It was further contended that the grounds alleged for adding him as a defendant are neither proper nor correct and that the proper gist and effect of the previous proceedings have not been clearly and correctly set out in the affidavit. The counter affidavit further stated that the suit is of the year 1964 and the application filed in 1971 is clearly barred by limitation. It is against the contention in the counter-affidavit that it has never been found that the petitioner herein is an accounting party to the suit, that the first respondent herein had on a previous occasion stated that he was not willing to add him as a party and that the present application is therefore barred.

6. The Subordinate Judge took up for consideration the question as to whether the third party, Ponnuswami, should be impleaded in the suit. He allowed the application after observing thus:--

'It may be that plaintiff (first respondent herein) does not desire a decree against Ponnuswami (Petitioner herein) but nevertheless this court is bound by the order of the appellate count as well as the High Court directing him to implead Ponnuswami Reddiar as he is a necessary party..............It is open to Ponnuswami Reddiar (Petitioner herein) after he is impleaded in the suit to raise whether contentions including the question of limitation in his pleadings and contest the suit.'

Aggrieved by the order of the subordinate Judge, this civil revision petition has been preferred by Ponnuswami.

7. Sri M. S. Venkatarama Iyer, learned counsel for the petitioner, submitted that Ponnuswami was not a party in O.S. 81 of 1964 nor in A.S. 427 of 1966, not in S.A. 877 of 1968 and that as such any directions contained in the judgment in A.S. 427 of 1966 or in S.A. 877 of 1968 are not binding on him. Learned counsel also submitted that the Subordinate Judge, except for stating that he is bound by the directions made by the appellate courts, has not applied his mind to the question as to whether the petitioner is a proper or a necessary party to the suit. According to Mr. M. S. Venkatarama Iyer, learned counsel for the petitioner, such conclusion of the court below without application of its mind to the facts and to the provisions contained in Order 1, Rule, 10, Civil Procedure Code has resulted in the failure and as such this court, under its revisional powers, can interfere with the order.

8. Sri K. Ramaswami, learned counsel for the first respondent, submitted that there is no question of jurisdiction involved in this revision petition for me to interfere and that Ponnuswami is a proper and necessary party to the suit. According to Sri K. Ramaswami, the learned counsel for the first respondent, the second respondent is the wife of the petitioner and the 3rd respondent is the daughter of the petitioner and as such the pledging of the jewels and the expenditure incurred by the petitioner for the litigation of the first respondent, are necessary matters in issue to be decided in O.S. 81 of 1964 and hence Ponnuswami is not only a proper but a necessary party to effectually adjudicate upon the dispute involved in the suit.

9. The plaint filed by the first respondent in O.S. 81 of 1964, which is admittedly against respondents 2 and 3, prays for directing respondents 2 and 3 or such of them as may be liable to render to the first respondent, a true and correct account of the value of all the jewels which the first respondent had entrusted with them. The trial Court, after observing that the plaintiff (first respondent) has proved to the satisfaction of the court that she had entrusted the jewels mentioned in the list appended to the plaint, with the defendants (respondents 2 and 3), passed a preliminary decree directing the defendants (respondent 2 and 3) to render to her (first respondent) an account of the value of the jewels which she had entrusted to them as per the list appended to the plaint. Even the appellate court, viz., District Court in A.S. 427 of 1966 found, on evidence that the first respondent brought the jewellery, that they were taken charge of by the second respondent and keep in a safe which admittedly she has and the key of which are said to be in her possession and that thus therefore it is reasonably clear that there must have been entrustment of jewellery as alleged.

10. But, unfortunately, the District Court, in A.S. No. 427 of 1966, observed that the relief sought obviously is to recover the balance of value either in the shape of case or the remaining jewellery of the first respondent after debiting against her the expenditure of the litigation on a proper proof thereof. This in my opinion, is outside the scope of and prayer in the plait and in the suit, which is a simple one for directing respondents 2 and 3 to render to the first respondent a true and correct account of the value of the jewels which were entrusted to the second respondent as per the list appended to the plaint. Both the Subordinate Judge and the District Judge in O.S. 81 of 1964 and A.S. 427 of 1966 respectively, categorically found that the jewels as listed in the list appended to the plaint were 'entrusted' to the second respondent. It is significant to note that there is absolutely no counter claim by the second or the third respondent with regard to the amount alleged to have been spent out of the amount that came on account of the pledging of the jewels entrusted with them by the first respondent. In the absence of such a counter claim, and in the absence of any such prayer in the pleadings, it is too much for the District Court to observe in its judgment in A.S. 427 of 1966--

'The expenditure of litigation in part, at least must have come out of the sale of pledge of jewellery of the appellant' (first respondent).

The High Court, in S.A. 877 of 1968, observed that the petitioner is a necessary party to the suit and ordered remand with a direction to implead the petitioner. These observations of the High Court were admittedly not made in the presence of the petitioner as a party in S.A. 877of 1968. No doubt, the appeal in which the petitioner was a party, viz., S.A. 1464 of 1968, was heard along with the appeal in which the said observations were made. But it cannot be construed that simply because the two second appeals had been heard together and disposed of, in one of which the petitioner was not a party, the petitioner is bound by any directions contained in the order in the appeal to which he was not a party.

11. Further the directions to implead the petitioner as a necessary party to the suit cannot be, in these circumstance, considered as binding upon the petitioner since he has every right to contest the application to implead him as a party-defendant in the suit as soon as such an application is filed. The directions of the District Court and the High Court have been complied with by the filing of the application under O. I, R. 10, C.P.C. by the first respondent before the trial court. But the petitioner has rightly contested the application on the ground that he is neither a necessary nor a proper party to the suit.

12. Again it is surprising to note how and why the first respondent is agitating this matter, viz., of impleading the petitioner as a party to the suit, since it will not be to the advantage of herself if the petitioner is added as a party-defendant to the suit. On the other hand, it is respondents 2 and 3 who will stand to gain by making Ponnuswami as a party defendant, inasmuch as it will reduce their liability to a very great extent. But whatever it may be, the whole matter is left open by reason of the appellate judgments for a fresh trial and as such respondents 2 and 3 can as well defend the suit by letting in the evidence of Ponnuswami on their side and also taking necessary steps in regard to realising any claim they may have against the first respondent.

13. Order 1, Rule 10(2), Civil Procedure Code states that the court may, if it finds just, order that the name of any person who ought to have been joined whose presence before the court may be necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. The prayer in the plaint of the first respondent is for accounting for the jewels mentioned in the list appended to the plaint which had been entrusted to respondents 2 and 3. As such there is no question of joining Ponnuswami (petitioner herein) as a defendant in the suit since no relief has been claimed by the first respondent in the suit. Further, the court can effectually and completely adjudicate upon and settle all the questions involved in the suit without the presence of the petitioner as a party-respondent, in as much as the suit is only for directing the defendants (respondents 2 and 3) to render to the first respondent a true and correct account of the value of the jewels which the first respondent had entrusted with respondents 2 and 3. Thus the petitioner herein is not a necessary or a proper party to the suit.

14. The court below has not discussed as to how the petitioner is a necessary party except following the directions of the appellate Court. Sri M. S. Venkatarama Iyer, learned counsel for the petitioner, rightly asserted that directions issued without notice to the petitioner cannot bind the petitioner. No doubt, the court below has the right to consider the question of impleading the petitioner as a party-defendant on the merits of the case. But it seems to have been obsessed by the observations of the appellate court and as such committed an error in the exercise of its jurisdiction.

15. In these circumstances, and upon the discussion and findings I have arrived at in the foregoing paragraphs, I am of the view that the petitioner here in is not a proper or necessary party to the suit. The civil revision petition is allowed. There will be no order as to costs

16. Petition allowed.


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