KUNHIKANNAN NAMBIAR Vs. SUMITHRA AMMA

JUDGEMENT

(1.) THIS Civil Revision Petition is filed against the order in I. A. No. 871/95 in O. S. No. 39/88 on the file of the Subordinate Judge's Court, Payyannur. First respondent in the Civil Revision Petition, Sumithra Amma, who is the wife of the petitioner, filed O. S. No. 39/88. The suit was filed for a decree of injunction restraining respondents 2 to 17 from trespassing over plaint 'B' schedule property and interfering with the possession and also in the alternative for recovery of possession of plaint schedule.

(2.) ACCORDING to the petitioner, the plaintiff/first respondent had executed a power of attorney in his favour and he was conducting the case on behalf of the plaintiff. Subsequently, the plaintiff executed an agreement for sale with regard to the properties included in the plaint for a consideration of Rs. 18 lakhs and the petitioner had already satisfied Rs. 16 lakhs towards sale consideration. The plaintiff and the petitioner fell apart and the plaintiff at the instigation of her brothers joined hands with the defendants and tried to compromise the suit to the disadvantage of the ultimate interest of the petitioner. The petitioner objected to the compromise. He filed O. S. No. 225/95 before injunction restraining the plaintiff from disposing the properties or withdrawing or abandoning the suits pending with respect to the properties. When the petitioner realised that the plaintiff will it can be seen suit properly, he filed I. been givenof 1995 Thus, from the document not conduct the that possession has A. No. 871 to the petitioner. himself impleaded as supplemental second plaintiff in for getting The question that arises for consideration is, whether the suit. The plaintiff court below was did not file rejecting his applicationdefendant in the suitDivision Bench The court of the correct in any objection. The third for impleading. A filed objection. decision below Madras High Court in Mrs. Saradambal Ammal v. present revision is Goundar and dismissed the I. A. for impleading. It is against that theE. R. Kandasamy filed. others, AIR (36) 1949 Mad. 23 - was cited. There a suit for specific performance was filed by two plaintiffs. An agreement was entered into for admission. Balasubramanyan,

(3.) LEARNED senior counsel Shri The K. Achan submitted that the application should not be allowed.P. N. Division Bench observed thus: order of the court below is wrong. The court below has by the original plaintiff during the pendency of a "If there is an assignment of the right gone on the assumption that since the petitioner has for specific agreement for sale, he has no interest. right has passed can continue suit obtained an performance the person in whom such Learned counsel submitted that on suit under R.10 of O.22. The words "any interest" in this certain properties thethe basis of the agreement, the petitioner was put in possession of rule include any transferable had already paid Rs. of in the earlier rules of the was further submitted that and that he "right to sue" spoken 16 lakhs to the plaintiff. It order which provide for its originally the case of death. The "assignment, creation or devolution was justified by devolution in plaintiff was not interested in prosecuting the suit and that of any interest" referred to in the rule does not mean an assignment, creation or devolution of an the subsequent dismissal of the suit for default. interest in tangible property only".