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IN THE HIGH COURT OF MADRAS
R. Mala, J.
V.O. Duraisamy Mudaliar and Others – Appellants
Vs.
Parijathammal and Others – Respondents
C.R.P. (PD) Nos. 1245, 1246 of 2012 and M.P. No. 1 of 2012
Decided On : 4-1-2016
Order 1 Rule 10 r/w Order 22 Rule 5 CPC - Impleadment of subsequent purchaser and restoration of suit - Phul Rani vs. Sh. Naubat Rai Ahluwalia, (1973) 1 SCC 688; Smt. Bhagwati vs. Shri Kanshi Ram, 2013 (3) CTC 356; Asha Batra and Others vs. Dharam Devi, (2004) 109 DLT 852; Ram Prakash Agarwal and Others vs. Gopi Krishan (Dead through L.Rs.) and Others - The court discussed the right to sue surviving the deceased plaintiff, the nature of the claim, and the entitlement of subsequent purchaser to maintain the suit in the context of bare injunction and restoration of suit.
Fact of the Case:
The suit for permanent injunction was filed by the plaintiff, who later died, and the suit was dismissed for default. The respondent, a subsequent purchaser of a portion of the suit property, filed applications to restore the suit and to implead herself as a party to the proceedings.
Finding of the Court:
The court found that the respondent, as a subsequent purchaser, had no locus standi to file an application to restore the suit as the suit was only for bare injunction and there was no cause of action for the respondent, who purchased the property after the filing of the suit. The Trial Court's order allowing the applications was considered perverse and set aside.
Issues: The issues involved the right to sue surviving the deceased plaintiff, the nature of the claim, and the entitlement of the subsequent purchaser to maintain the suit in the context of bare injunction and restoration of the suit.
Ratio Decidendi: The court held that the right to sue did not survive to the subsequent purchaser in the context of a suit for bare injunction, and the subsequent purchaser had no locus standi to file an application to restore the suit. The Trial Court's order allowing the applications was considered perverse and set aside.
Final Decision: The Civil Revision Petitions were allowed, the impugned orders were set aside, and the applications were dismissed. The respondent was given the option to work out her remedy by filing a separate suit.
1. Heard the learned counsel appearing for the revision petitioners and the learned counsel appearing for the respondent.
2. These Civil Revision Petitions have been filed challenging the impugned orders dated 10.09.2009 made in I.A. No. 790 of 2006 and I.A. No. 791 of 2006 in O.S. No. 27 of 2005, wherein the application filed under Order 1 Rule 10 r/w Order 22 Rule 5 CPC to implead the subsequent purchaser as party to the proceeding and the application filed under Order 9 Rule 9 CPC to set aside the ex-parte dismissal of the suit and to restore the same came to be allowed.
3. The learned counsel appearing for the revision petitioners would submit that one Parijathammal as plaintiff has filed the suit in O.S. No. 27 of 2005 for bare injunction in respect of 4 items of the suit property. The said Parijathammal died on 09.07.2006 and thereafter, the suit was dismissed for default on 14.07.2006. While so, the respondent herein who has purchased the 1st item of the suit property on 24.06.2006 has filed the applications to restore the suit which was dismissed for default on 14.07.2006 and also to implead herself as party to the proceeding. The Trial Court allowed those applications, which act is against the law.
4. The learned counsel for the revision petitioners would advance his argument in three folds.
(i) The suit is filed by the plaintiff Parijathammal seeking for a relief of permanent injunction in respect of 4 items of the property against her brother. So, once the plaintiff dies, there will not be any cause of action. Further, the respondent herein has purchased the 1st item of the property only on 26.04.2006 and therefore, on the date of filing of the suit, there is no cause of action in favour of the respondent herein. Hence, the petition itself is not maintainable. However, the said factum was not considered by the Trial Court in proper perspective.
(ii) The suit property is in respect of 4 items and the respondent herein has purchased only the 1st item of the property on 26.04.2006. Hence, the application for restoration of the suit in respect of all the 4 items is against law.
(iii) The suit has been filed seeking for the relief of bare injunction and not for declaration of title. In such circumstances, there is no cause of action for the respondent herein who is the subsequent purchaser for filing the application to implead. If the suit has been filed for declaration of title, the respondent herein can very well step into the shoes of the deceased plaintiff. However, since the suit is only for bare injunction, the said option is not available to the respondent.
5. To substantiate his argument, the learned counsel for the revision petitioners relied upon the following decisions:-
1. Phul Rani vs. Sh. Naubat Rai Ahluwalia, (1973) 1 SCC 688
2. Smt. Bhagwati vs. Shri Kanshi Ram, 2013 (3) CTC 356
3. Asha Batra and Others vs. Dharam Devi, (2004) 109 DLT 852
4. Ram Prakash Agarwal and Others vs. Gopi Krishan (Dead through L.Rs.) and Others
6. Resisting the same, the learned counsel for the respondent would submit that the respondent/plaintiff is none other than the sister of the deceased Parijathammal and also the sister of the deceased first defendant. The learned counsel would further submit that the respondent herein has restricted her claim only in respect of 1st item of the suit property. As per Order 1 Rule 10 and Order 22 Rule 5 of CPC, the respondent herein is having interest over the property and hence, she can very well step into the shoes of the deceased plaintiff Parijathammal. Further, it is submitted that the respondent/proposed party purchased the property on 26.04.2006, learned counsel for the plaintiff died on 23.06.2006, the plaintiff died on 09.07.2006 and the suit was dismissed for default on 14.07.2006. Immediately, the respondent herein filed the applications to restore the suit and also to implead herself as party to the proceedings. The Trial Court considered all the aspects in proper perspective and came
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