IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.09.2021 CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(PD).No.1345 of 2017 and C.M.P.No.6229 of 2017

1.Kamalam

2.Sivagami .. Petitioners Vs.

1.Marappan

2.Rajendran .. Respondents Prayer: This Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decretal order dated 07.08.2015 made in I.A.No.48 of 2015 in O.S.No.68 of 2009 on the file of the Distict Munsif cum Judicial Magistrate Court, Paramathi.

For Petitioners : Ms.L.Parvin Banu For R1 : Mr.J.Selvarajan for Mr.M.Kulandaivelu For R2 : No appearance

O R D E R

(The matter is heard through “Video Conferencing/Hybrid Mode”.)

This Civil Revision Petition is filed against the fair and decretal order dated 07.08.2015 made in I.A.No.48 of 2015 in O.S.No.68 of 2009 on the file of the Distict Munsif cum Judicial Magistrate Court, Paramathi.

2.The petitioners are the third parties in O.S.No.68 of 2009 filed by the

1^st respondent. The 1^st respondent filed the said suit against the 2^nd respondent / defendant, who is his son for partition on 06.03.2009. The 2^nd respondent filed written statement on 24.09.2010 and is contesting the suit. At that stage, the 1^st respondent filed I.A.No.48 of 2015 under Order I Rule 10(2) C.P.C. to implead the petitioners herein as defendants 2 and 3 in the said suit. According to 1^st respondent, the 2^nd respondent has taken a stand in the written statement that suit is bad for non-joinder of daughters of 1^st respondent. The 1^st respondent came to know the said averment only at the time of his cross examination. Hence, it is necessary to implead the petitioners herein as defendants 2 and 3 in the suit. The 2^nd respondent did not file any counter affidavit. The 1^st petitioner/1^st proposed party to the suit filed counter affidavit, which was adopted by the 2^nd petitioner/2^nd proposed party and submitted that suit property belongs to 2^nd respondent who purchased the same by the sale deed dated 27.03.2006 and the petitioners have no right in the suit property and hence, they are not proper and necessary parties to the suit and prayed for dismissal of I.A.No.48 of 2015.

3.The learned Judge considering the averments in the affidavit and counter affidavit, allowed the I.A. holding that petitioners are necessary parties to the suit and their rights in the suit property can be decided only after Trial.

4.Against the said order dated 07.08.2015 made in I.A.No.48 of 2015, the petitioners have come out with the present Civil Revision Petition.

5.The learned counsel appearing for the petitioners contended that the learned Judge failed to consider the averments in the counter affidavit filed by the petitioners that they have no right in the suit property and the suit property belongs to the 2^nd respondent. The learned Judge erred in coming to the conclusion that the petitioners are necessary parties to the suit without giving any findings. The learned Judge erroneously held that the right of the petitioners can be decided only after Trial and impleaded the petitioners without deciding the issue. The affidavit filed by the 1^st respondent in support of the present I.A. to implead the petitioners as defendants does not have any averment to show how it is necessary to implead them except the defendant / 2^nd respondent has stated in the written statement that suit is defective for non-joinder of necessary parties. In the affidavit, the 1^st respondent has not stated that what is the extent of share the petitioners are entitled to when the petitioners themselves filed counter affidavit stating that they do not have any share or right over the suit property. The order of the learned Judge is erroneous and prayed for allowing the Civil Revision Petition and dismissing the I.A.

6.The learned counsel appearing for the 1^st respondent submitted that the 2^nd respondent in the written statement filed by him has stated that the petitioners are necessary parties and suit is bad for non-joinder of p