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2012 Supreme(Mad) 2928
High Court of Judicature at Madras
T. MATHIVANAN
R. Radha
Versus
A.S. Ibrahim Rawather & Another
Application No.1065 of 2012 in C.S.No.506 of 2005
Decided On : 11-07-2012
For the Applicant:T.K.S. Gandhi, Advocate.
For the Respondents:C. Ramesh, Advocate.
The plaintiff's opposition to the addition of a party should be taken into account, and adding a party should not involve a de novo trial.
Headnote:
Order XIV Rule 8 - Impleadment of Third Party - Code of Civil Procedure - [Order XIV Rule 8, Order I Rule 10(2)] - The court discussed the application filed under Order XIV Rule 8 of the Original Side Rules read with Order I Rule 10(2) of the Code of Civil Procedure to implead the applicant as the second defendant in the suit. The court considered the legal provisions and the consequences of adding a third party to the suit, citing the proposition of law laid down by the Apex Court in Anokhe Lal vs. Radhamohan Bansal and others, reported in AIR 1997 SC 257. The court also referred to the proviso to sub-rule (2) to Rule 10 of Order I of the Code of Civil Procedure and discussed the discretion of the court to strike out or add parties at any stage of the proceedings. The court emphasized that the plaintiff's opposition to the addition of a party should be taken into account and added that the application was devoid of any merits and liable to be dismissed.
Fact of the Case:
The applicant sought to be impleaded as the second defendant in a suit for specific performance filed by the first respondent against the second respondent. The applicant claimed to have purchased the property in question under a registered sale deed and wanted to establish her right over the property.
Finding of the Court:
The court found that the applicant's impleadment was not necessary or proper, as the real controversy was between the first respondent and the second respondent. The court also noted that the plaintiff opposed the inclusion of the applicant in the suit, and adding the applicant as a defendant would involve a de novo trial.
Issues: The main issue was whether the applicant, as a third party, was a necessary and proper party to the suit.
Ratio Decidendi: The court emphasized the plaintiff's opposition to the addition of a party, citing the discretion of the court to strike out or add parties at any stage of the proceedings. The court also highlighted the legal principles established in Anokhe Lal vs. Radhamohan Bansal and others, reported in AIR 1997 SC 257, and the proviso to sub-rule (2) to Rule 10 of Order I of the Code of Civil Procedure.
Final Decision: The court dismissed the application, finding it devoid of any merits and liable to be dismissed.
1. This application is filed under Order XIV Rule 8 of the Original Side Rules read with Order I Rule 10(2) of the Code of Civil Procedure to implead the applicant as the second defendant in the suit in C.S.No.506 of 2005.
2. The applicant is a third party to the suit in C.S.No.506 of 2005. According to the applicant, she had purchased the property, in respect of which the suit has been filed by the first respondent/plaintiff seeking the relief of specific performance, under a registered sale deed dated 30.11.2006 for a total sale consideration of Rs.79,20,000/-and the sale in her favour has been suppressed by the second respondent for the reasons best known to him.
3. The first respondent and the second respondent had entered into an agreement of sale dated 10.06.2002 in respect of the suit property for a total sale price of Rs.7,00,000/- and that the first respondent had paid a sum of Rs.5,00,000/-to the second respondent towards the advance amount. Since the second respondent had failed to execute the sale deed in favour of the first respondent, he has filed the suit against the second respondent for the relief of specific performance. Under this circumstance, this application has been brought before this Court by the applicant claiming that she has become the absolute owner for having purchased the same on 30.11.2006 under a registered sale deed and therefore she wants to implead himself as the second defendant in the suit.
4. The first respondent/plaintiff, in his counter, has contended that he had entered into an agreement of sale on 10.06.2002 with the second respondent/defendant in respect of the suit property and since the second respondent had committed breach of the terms of sale agreement, he has filed this suit for specific performance on 12.06.2005.
5. At the time of filing the suit, he had filed an application in O.A.No.601 of 2005, seeking the relief of an Order of interim injunction, against the second respondent and his men from encumbering, alienating or otherwise dealing with the property.
6. In that application, this Court was pleased to order on 01.09.2009 to maintain status-quo as regards the possession and enjoyment of the suit property till the disposal of the suit. Despite the Order of this Court, the second respondent, suppressing the fact that the existence of sale agreement dated 10.06.2002 entered into between him and the first respondent, had prepared the alleged sale deed in collusion with the applicant to create complication and frustrate the agreement of sale.
7. The second respondent/defendant has also contended that the trial was commenced in the suit and the evidence on the part of both the plaintiff as well as the defendant was completed. The case itself was posted for argument and the first respondent, who is the plaintiff in the suit, for the purpose of dodging the Court from giving finality, had introduced the applicant without any justification or reason to file this application in a suit of specific performance of contract.
8. The suit was filed in the year 2005 and was successfully dragged on till this date i.e., upto 2012. When the case had been slowly reaching the finality of the trial, the first respondent/plaintiff, with an oblique motive, had brought this applicant to interfere in the suit to protract the further proceedings of the suit and to create unnecessary issue as if there is some kind of right in favour of the applicant.
9. Heard Mr. T. K. S. Gandhi, learned counsel appearing for the applicant, Mr.C.Ramesh, learned counsel appearing for the first respondent/plaintiff and Mr.V.Manohar, learned counsel appearing for the second respondent/defendant.
10. On examination of the averments of the application as well as the counter affidavits filed on behalf of the respondents 1 and 2, the following issue has been arisen for the consideration of this Court:
"Whether the applicant, who is a third party, is a necessary and proper party to the suit?"
11. "The cou
