CRP PD/1737/2003 of ANTONY DEVARAJ Vs ARALVAIMOZHI(KURUSADI) on 31 December 2003

:ORDER

The petitioners filed I.A.No.978 of 2003 to implead them as defendants21 and 22 in O.S.No.293 of 2001 and also filed I.A.No.979 of 2003 to impleadthem as respondents 21 and 22 in the injunction application in I.A.No.336 of2001 in O.S.No.293 of 2001. These applications were dismissed by the trialCourt. Hence, these two civil revision petitions.2. The facts in brief are as follows:

(a) Aralvaimozhi (Kurusadi) Devasahayam Mount Oor and Thuya ViagulaAnnai Church, represented by the Trustee filed O.S.No.293 of 2001 against theBishop of Kottar, Kottar Diocese and others for a permanent injunctionrestraining the defendants from interfering with the management andadministration of the Aralvaimozhi (Kurusadi) Devasahayam Mount and theproperties of Thyua Vaigula Annai Church by the plaintiffs or from disturbingtheir possession in any manner. The plaintiffs filed I.A.No.336 of 2001 inO.S.No.293 of 2001 seeking for interim injunction. In the meantime, otherdefendants have been impleaded as defendants 2 to 20.

(b) The injunction application was argued and heard. At that stage,the petitioners herein, claiming themselves as former President of the OorCommittee and former Committee Member of Oor Committee respectively, filed thesaid two applications in I.A.Nos.978 and 979 of 2003 to implead themselves asdefendants 21 and 22 and respondents 21 and 22, both in the suit and in theinjunction application respectively, as they are proper and necessary parties.(c) In the meantime, the Bishop, the first defendant filed the writtenstatement and counter affidavit. The trial Court, before passing orders inthe injunction application which was argued at length, heard the said I.As.for impleading the petitioners.

(d) It was contested by the Bishop that the petitioners herein areunnecessary parties and the suit was filed by the plaintiffs in representativecapacity and therefore, the applications filed by the petitioners inI.A.Nos.978 and 979 of 2003 as former office bearers of the Oor Committee,being belated, are liable to be dismissed, as there are no merits in the same.(e) Accepting the contention of the first defendant-Bishop, the saidapplications have been dismissed by way of common order. Since common orderhas been passed in the said I.As., the petitioners herein, the proposeddefendants 21 and 22, have filed these two civil revision petitions.3. Mr.Jyothi Mani, learned counsel for the petitioners would mainly

contend that the trial Court, without deciding as to whether the petitionersare proper and necessary parties in the suit and the injunction application,rejected the applications merely on extraneous grounds. On the other hand,the trial Court should have allowed the applications filed by the petitionersby impleading them as defendants, as neither the plaintiffs nor the firstdefendant would be affected and the presence of the petitioners in the suitwould facilitate the trial Court to arrive at a proper and appropriateconclusion, thereby avoiding multiplicity of proceedings.

4. Mr.Peppin Fernando, learned counsel appearing for the caveator,the first defendant in the suit, while justifying the impugned order, wouldsubmit that the petitioners have come to the Court belatedly to drag on theproceedings, without allowing the trial Court to pass orders in the injunctionapplication earlier filed by the plaintiffs. It is also stated by him thatthe petitioners' case is in support of the plaintiffs and as such, impleadingthem as defendants in the suit would be unnecessary.

5. Heard learned counsel for the second respondent also. Both thecounsel for the parties would cite several authorities in support of theircontentions.

6. Even at the threshold, it has to be stated that the plaintiffs filed the suit in a representative capacity of the Village and the Church, asTrustee, in the year 2001 in O.S.No.293 of 2001 and injunction application wasalso filed in I.A.No.336 of 2001. When the injunction application was takenup for hearing, the Bishop, the first defendant in the suit, filed the counterand also filed written statement. After hearing the injunction application,the trial Court posted the matter for orders. At this stage, the applicationsfor impleading in I.A.Nos.978 and 979 of 2003 were filed on 1-7-2003 by thepetitioners herein. According to the petitioners, they are the former officebearers of the Oor Committee and the administration of the Church wasmaintained by the Oor Committee and as such, they are necessary parties andhave to be impleaded as defendants, so that they would put forth their casewith reference to the management of the Church by the said Committee and thatthe delay in filing the applications was due to the fact that the firstpetitioner had been to abroad and the second petitioner was not in town forsome time, and as such, they were not aware of the filing of the above suit.

7. Admittedly, the applications have been filed in I.A.Nos.978 and 9

79 of 2003 under Order 1 Rule 10(2) C.P.C. The guidelines given by variousHigh Courts and the Supreme Court to invoke Order 1 Rule 10 (2) C.P.C. are asfollows:

(i) The plaintiff may choose to implead only those persons as defendants as against whom he wishes to proceed with. However, it is open forthe Court to add, at any stage of the suit, a necessary party in order toenable the Court to effectually and completely adjudicate upon the questionsinvolved in the suit.

(ii) A necessary party is one without whom no order can be effectively made. A proper party is one whose presence is necessary for a complete andfinal decision of question involved in the proceedings. Addition of theparties would depend upon the judicial discretion which has to be exercised,in view of the facts and circumstances of a particular case.

(iii) The person to be added as one of the parties must be one whose presence is necessary as a party. What makes a person a necessary party isnot merely that he has relevant evidence to give on some of the questions involved, but it should make him as necessary witness.

(iv) The third party cannot be considered to be a necessary party fordeciding the main issue framed in the suit. Mere ground that inclusion of theproposed third party would not alter the structure of the suit may not entitlethe party to ask the Court to implead the third party as a defendant.(v) The Court may upon an application or suo motu, in a fit and propercase, implead a new party as defendant, even against the plaintiff's consentunder certain circumstances. The discretion vested with the Court though wideis however circumscribed by the limitations which are built in the provisionscontained in Order 1 Rule 10(2) C.P.C. Where a person is neither necessarynor proper party, the Court has no jurisdiction to add him as a party. If thequestion at issue between the parties can be worked out without anyone elsebeing brought in, the stranger should not be added as a party. (vi) Normally,the Court should not add a person as defendant when the plaintiff is alreadyavailable to project his case. The reason is that the plaintiff is the'dominus litis'. He is the best judge of his own interest and it should beleft to him to choose his opponent from whom he wants relief. If he seeksrelief against a particular person, it is not the look out of the Court to seewhether the relief should be claimed against the other persons, nor is it aduty of the Court to investigate whether the necessary parties have been addedor left out.

(vii) A person is not to be added as a defendant merely because he orshe would be incidentally affected by the judgment. The main consideration iswhether or not the presence of such a person is necessary to enable the Courtto effectually and completely adjudicate upon and settle the questionsinvolved in the suit.

(viii) Persons whose interests would be affected by the litigation areentitled to come on record to protect their interests when those arejeopardised by the persons already on record.

8. The above principles have been laid down in the following decisions:

(i) AIR 1973 MADRAS 25 (P.R.Nallathambi vs. V.Raghavan);

(ii) AIR 1974 CALCUTTA 358 (N.C.Garai vs. Matri Bhandar);

(iii) AIR 1992 ALLAHABAD 119

(Lakshmi Narain vs. District Judge, Fatehpur);

(iv) 1998 (I) C.T.C. 626

(Somasundaram Chettiar vs. Balasubramanian).

9. In the light of the above principles, if we look at the facts ofthe present case, there is no difficulty in holding that the petitioners havenot established either before the trial Court or before this Court that theyare proper or necessary parties. Admittedly, no relief is sought for by theplaintiffs against these proposed defendants, the petitioners herein. On theother hand, the petitioners' claim for impleadment is for the projection ofthe plaintiffs' case, as they happen to be former office bearers of the OorCommittee. As a matter of fact, the plaintiffs filed the suit and injunctionapplication, under Order 1 Rule 8 C.P.C. As the suit is filed asrepresentative capacity for the Village, the plaintiffs should be allowed toconduct the case in the interest of the Oor Committee and the Village. Nosuch allegation has been made by the petitioners that the plaintiffs have not conducted themselves properly while prosecuting the suit.

10. In this case, apart from the delay, this Court is constrained tosee that the petitioners have come forward with the applications without validground to make them as necessary and proper parties. This Court is of theview that the petitioners are neither necessary parties nor proper parties.At the most, the petitioners can be witnesses on the side of the plaintiffsduring the course of trial.

11. Therefore, the civil revision petitions are dismissed. No costs.Consequently, C.M.P.Nos.12173 and 12783 of 2003 are also dismissed.12. Before parting with these cases, this Court is constrained torefer to the practice adopted in the lower Courts.

(a) It is brought to the notice of this Court that before the trial Court, in this case, instead of the party filing affidavit in the form ofcounter, the Advocate concerned, on behalf of the first defendant, has filedcounter. This practice is not a healthy one.

(b) In this context, it would be relevant to refer to the following observations made by Justice M.Srinivasan, as he then was, reported in 1989(1) L.W. 543 (Nagarajan.V.P. vs. Prabhavathi) and the relevant portions ofthe headnote of the same are as follows:- "In recent times, an unhealthy practice has grown up among the members of theBar to come out with affidavits in support of their clients even without theclients themselves filing affidavits setting out the facts. Unfortunately theimplications and consequences thereof have not been realised by them. UnderO.19 R.2 C.P.C., affidavit will be evidence in an application and the Courtcould order crossexamination of the deponent. Thus the advocate who files anaffidavit in support of an application is liable to be cross-examined and byfiling the affidavit, he takes the role of a witness.

The Bar Council of India has framed rules under S.49(c) of theAdvocates Act, 1961. The indiscriminate way in which affidavits are filed bycounsel on records nowadays make the Court doubt whether any of them is awareof the above rule."

(c) It is also brought to the notice of this Court by both the counselthat in Kanyakumari District, all the Advocates would follow the regularpractice of filing affidavit, counter affidavit or petition on behalf of theparties, without the affidavits sworn to by the parties and the same areentertained by the lower Courts. This practice must be, atleast in thefuture, stopped.

(d) Therefore, learned Principal District Judge, Kanyakumari District

is directed to give administrative direction to all the subordinate judiciaryin the Kanyakumari District, not to entertain the petition or affidavits onbehalf of the parties, from the Advocates, without the affidavits sworn to bythe parties.

M. KARPAGAVINAYAGAM,J.

After pronouncing the order, learned counsel for the parties requested this Court to direct the trial Court to dispose of the suit early. It isnoticed that the suit is pending from 2001. Therefore, the trial Court maydispose of the suit as expeditiously as possible.

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31-12-2003

Index: YesInternet: Yes

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To

1. Principal District Munsif, Nagerocil.

2. Principal District Judge, Kanyakumari District.