A. KULASEKARANC.R.P. (PD) No. 2802 of 2003andC.M.P. No. 21239 of 2003-o-M. George v. M. Albert2. M. Vijayachandra3. Mrs. Shanthakumari4. J. Saravana Rajan5. J. Suresh6. J

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 04-03-2005CORAM :THE HONOURABLE MR. JUSTICE A. KULASEKARANC.R.P. (PD) No. 2802 of 2003andC.M.P. No. 21239 of 2003-o-M. George ... Petitioner (2nd Defendant)Versus1. M. Albert2. M. Vijayachandra3. Mrs. Shanthakumari4. J. Saravana Rajan5. J. Suresh6. J. Naresh7. Andrew Raj8. A. Rebucca Swarna9. Dorathi Nova... Respondents(Plaintiff-Defendants 3,5,8 and Pro-Defendnts9-11.) Revision under Article 227 of The Constitution of India againstthe order dated 19-11-2003 made in I.A. No. 1039 of 2003 in O.S. No.249 of 1996 on the file of the Subordinate Court, Ootacamund.For Petitioner :Mr. Srinath SridevanFor Respondent :Mr. Lenin for R1Mr. Sivakumar for R2No appearance for RR7 to 9NDW for RR3 to 6.ORDERThe second defendant in O.S. No. 249 of 1996 on the file of theSub-court, Ootacamund is the revision petitioner herein. The firstrespondent herein has filed the above said O.S. No. 249 of 1996. 2.In the said suit, the fourth defendant, who is the sisterof the first respondent herein as well as the revision petitionerwas set exparte on 19-11-1992. Thereafter, the fourth defendantdied on 04-09-1996, hence the plaintiff/first respondent herein hasfiled I.A. No. 1039 of 2003 to implead the legal heirs of thedeceased fourth defendant as defendants 9 to 11 in the suit. Thetrial court, after hearing both sides allowed the said application,hence this revision petition. https://hcservices.ecourts.gov.in/hcservices/

3.Mr. Srinath Sridevan, learned counsel appearing for thepetitioner submits that the trial court failed to note that the suitas against the fourth defendant abates and as such the trial Courtought not to have permitted to implead the legal heirs of thedeceased fourth defendant in the absence of an application underOrder 22 Rule 4 CPC and prayed for setting aside the impugned orderof the trial court.4.For the sake of convenience, the parties are referred toas arrayed by the Court below. Before the court below, the fourthdefendant was set exparte on 19-11-1992 since she did not appeareven after receipt of summons from the court below. Issues wereframed on 14-02-1997. Subsequently, the first defendant died, hislegal heirs were impleaded as defendants 5 to 8 in the suit andnecessary amendments were also carried out in the plaint. On10-04-2000, the case was listed for hearing and at the request ofthe plaintiff it was adjourned for three times. On 04-09-2000, theplaintiff filed an application for adjournment, which was dismissedand the suit was also dismissed for default. The plaintiff filedI.A. No. 1517 of 2000 for restoration of the suit on 29-09-2000 inwhich the name of the fourth defendant was also shown. The noticesent in the said interloctuary application to the fourth defendantwas returned with an endorsement that the fourth defendant died,which reached the Court on 01-12-2000. The plaintiff failed to takesteps to bring the legal heirs of the deceased fourth defendant inspite of several adjournments. The said I.A. No. 1517 of 2000 wasallowed and the suit was restored as against the other defendantsexcept fourth defendant. The court below pointed out that there isno abatement order was passed in so far as the fourth defendant isconcerned. 5.The trial of the suit was over on 19-09-2003, argumentswere heard on 22-09-2003 and the suit was posted for judgment on 29-09-2003. At that time, the plaintiff has filed I.A. No. 1039 of2003 to implead the legal heirs of the deceased fourth defendant asdefendants 9 to 11 in the suit. The argument of the plaintiffbefore the trial court was that no abatement order as against thefourth defendant has been passed or the death of the fourthdefendant was informed to the Court, hence the implead petitionunder Order I Rule 10 is maintainable, though it is filed belatedly.6.The trial court held that the suit for partition cannot bedismissed on technical grounds for non-joinder of necessary parties.If the non-joinder is found by the Court or brought to its notice,it can implead necessary parties instead of dismissing the suit byinvoking Order I Rule 10 (2) CPC. In support of this contention,the trial court relied on the decision of the Honourable SupremeCourt reported in (Bhagwan Swaroop and others vs. Mool Chand andothers) AIR 1983 SC 355 and allowed the implead petition filed underOrder I Rule 10 on 19-04-2003.7.Now we look into the provisions of Order I Rule 10 CPC,which runs as follows:-"10.Suit in name of wrong plaintiff- (1)Where a suit has been instituted in the name of https://hcservices.ecourts.gov.in/hcservices/ the wrong person as plaintiff or where it isdoubtful whether it has been instituted in thename of the right plaintiff, the Court may atany stage of the suit, if satisfied that thesuit has been instituted through a bona fidemistake, and that it is necessary for thedetermination of the real matter in dispute soto do, order any other person to be substitutedor added as plaintiff upon such terms as theCourt thinks just.(2)Court may strike out or add parties. -The Court may at any stage of the proceedings,either upon or without the application of eitherparty, and on such terms as may appear to theCourt to be just, order that the name of anyparty improperly joined; whether as plaintiff ordefendant, be struck out, and that the name ofany person who ought to have been joined,whether as plaintiff or defendant, or whosepresence before the Court may be necessary inorder to enable the Court effectually andcompletely to adjudicate upon and settle all thequestions involved in the suit, be added.(3)No person shall be added as aplaintiff suing without a next friend or as thenext friend of a plaintiff under any disabilitywithout his consent.(4)Where defendant added, plaint to beamended:- Where a defendant is added, the plaintshall, unless the Court otherwise directs, beamended in such manner as may be necessary, andamended copies of the summons and of the plaintshall be served on the new defendant and, if theCourt thinks fit, on the original defendant(5)Subject to the provisions of theIndian Limitation Act, 1877 (15 of 1877) Section22, the proceedings as against any person addedas defendant shall be deemed to have begun onlyon the service of the summons."8.All persons interested in the property are necessaryparties to a suit for partition. In a partition suit, co-sharers,whether arrayed as plaintiff or defendant is substantially theplaintiff in the suit and he is entitled to a decree for partitionof his share. The question of impleadment of a party is to bedecided on the touchstone of Order I Rule 10 CPC, which providesthat only a necessary or proper party may be added. Mere interest ofthe party in the fruits of litigation cannot be a true test for hisbeing impleaded as a party. The object of the rule is not to changethe scope or character of the suit by adding parties and to enablethem to litigate their own independent claim but simply to hold themto avoid unnecessary litigation which might otherwise becomesnecessary.9.The argument of the learned counsel for the revisionpetitioner is that when there is a substantial provision available https://hcservices.ecourts.gov.in/hcservices/ under Order 22 Rule 4 CPC, resort to the general provisions likeOrder I Rule 10 CPC may not be permitted.10.In a suit for partition, the possession of plaintiff anddefendant can be interchangeable. It is that each adopts the samepossession which the other parties. In this context, it is relevantto look into the decision of the Honourable Supreme Court reportedin (Bhagwan Swaroop and others vs. Mool Chand and others) AIR 1983SC 355 wherein it was held in para-4 thus:-"4.....There is some force in thecontention that when a specific provision ismade as provided in Order 22 Rule 4, a resort tothe general provision like Order 1 Rule 10 maynot be appropriate. But the laws of procedureare devised for advancing justice and notimpeding the same. In Sangram Singh v. ElectionTribunal, Kotah (1955) 2 SCR 1; (AIR 1955 SC425), this Court observed that a code ofprocedure is designed to facilitate justice andfurther its ends; not a penal enactment forpunishment and penalties; not a thing designedto trip people up. This was reaffirmed inKalipada Das v. Bimal Krishna Sen, (1983) 1 SCC14. 11.In the decision reported in (Zahirul Islam Vs. Mohd. Usmanand others) 2003 1 CTC 184 it was held in para Nos. 6 and 7 thus:-"6.A perusal of sub-rule (4), extractedabove, shows that a plaintiff may be exemptedfrom the necessity of substituting the legalrepresentatives of a defendant who has failed tofile a written statement or who, having filed it,failed to appear and contest the suit at thehearing and that, in such a case, the judgmentmay be pronounced against the said defendantnotwithstanding the death of such defendant andit shall have the same force and effect as if thejudgment has been pronounced before the deathtook place. 7. In the instant case, it is stated by thelearned counsel appearing for the appellant thatno permission contemplated under sub-rule (4) wasobtained from the court exempting the plaintifffrom bringing on record the legal representativeof the deceased Defendant 2. From the order underchallenge also, it does not appear that any suchpermission was sought or granted by the court. Inthis view of the matter, the order underchallenge cannot be sustained. It is,accordingly, set aside. The appellant was,therefore, entitled to be brought on record inthe suit. https://hcservices.ecourts.gov.in/hcservices/

12.The above two judgments of the Honourable Supreme Courtguide us that Civil Procedure Code is designed to facilitate justiceand to further its ends and not a penal enactment for punishment andpenalties.13.Following the said judgments, the order passed by theCourt below is confirmed. The Civil Revision Petition is dismissed.Taking into consideration of the delay caused by the plaintiff, whois the first respondent in this revision in bringing on record thelegal heirs of the deceased fourth defendant, in order to meet theends of justice, a costs of Rs.1,000/- is ordered payable by theplaintiff to the second defendant within a period of four weeks fromthe date of receipt of a copy of this order. Consequently,connected CMP is closed.rshSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Subordinate JudgeSub-Court, Ootacamund+ One cc to M/s Lenin and Bhagya, Advocates (SR No. 10260)CRP PD NO. 2802 OF 200304-03-2005JRG(CO)BP