S DURAISAMY Vs. NELLAPPAGOUNDER DISTRICT

JUDGEMENT

(1.) THE petitioners are the plaintiffs and the respondents are the defendants in the suit. THE petitioners/plaintiffs filed a suit in O.S.No,391/2004 before the Principal Subordinate Judge, Erode seeking to direct division of the suit properties into three equal shares by metes and bounds and with reference to good and bad soil and allot one such share to the plaintiffs and the 5th defendant jointly and put them in separate possession to appoint a commissioner to divide the suit properties to restraining the defendants, their men and agents etc., from in any way and in any manner either alienating or encumbering the suit properties till final partition is effected by means of permanent injunction to direct the defendants 1 to 4 to pay the cots of the suit to the plaintiffs THE respondents/defendants filed a written statement denying all the allegations and stated that the plaint is devoid of merits and the same should be dismissed with costs. Subsequently, the respondents/defendants filed the additional written statement, stating that the petitioners/plaintiffs are having knowledge about the alienations and the said alienations are binding upon the plaintiffs and they failed to implead alienees of the property and hence, the present suit is bad for non-joinder of proper and necessary parties and the same is liable to be dismissed at threshold without going into merits of the case. THE said additional statement was filed on 14.12.2005. Subsequently, the petitioners/plaintiffs filed an application in I.A.No,698/2009 stating that in consequence of additional written statement filed by the respondents/defendants, the proposed parties/respondents 8 and 9 are purchasers of the suit property from the defendants and without impleading them, the suit is bad for non-joinder of necessary parties. THErefore, the present application is filed to implead the proposed parties in the suit. THE respondents/defendants also filed a counter, stating that it was filed very belatedly. At that time, the arguments has completed and the suit is reserved for orders. THErefore, it is stated that the application may be dismissed without costs. After hearing the arguments advanced by both the parties, the trial Court dismissed the application on the ground that it was filed belatedly and also the petitioners/plaintiffs ought to have filed it earlier. Aggrieved by that order, the petitioners/plaintiffs filed the present civil revision petition.

(2.) THE learned counsel appearing for the petitioners/plaintiffs submitted that the trial Court is wrong in refusing to implead the proposed parties as defendants, which is against law and the trial Court ought to have considered that the contesting defendants have filed the additional written statement questioning the maintainability of the suit on the ground of non joinder of necessary parties. He further submitted that the proposed parties of the purchasers of the suit property and therefore, they are the necessary parties. It is also further submitted that the trial Court failed to note that in the event of not impleading the proposed parties, the issue involved in the suit can be given quietus and otherwise, the meritorious matter will be rejected on some technical ground. Also, the proposed parties have substantial interest over the subject matter in the issue. THErefore, they are necessary parties. Also, relied on the Judgment of this Court in the case of BALAMANI AND ANOTHER Vs S.BALASUNDARAM reported in 2009 (3) CTC 760. THErefore, the order passed by the trial Court is not in accordance with law and the same has to be set aside.