B VIJAYALAKSHMI Vs. T JAYAMMA

JUDGEMENT

(1.) The instant revision petition is directed against the order dated 17-3-2006 passed in I.A. No.486/2005 in I.A. No.440/ 2005 in O.S. No.188/2005. The revision petitioner is the applicant, who filed LA. No.486/2005 under Order 1 Rule 10 of Civil Procedure Code read with Section 151 of the Civil Procedure Code seeking to implead herself as Respondent No.4 in I.A. No.440/2005. That application having been heard and dismissed under the impugned order. She is now seeking to assail the same.

(2.) A few facts which led the petitioner to file the present revision application need be mentioned to elucidate the fact in controversy and the illegality that has been crept in at various levels. The first respondent herein is the plaintiff. She filed the suit for partition against as many as six defendants including the revision petitioner as sixth defendant. The relief of partition was claimed as can be seen from the averments made in the plaint, a copy of which is supplied. Defendants 1 to 5 are the co-heirs. Defendants 1 to 3 are the brothers and Defendants 4 and 5 are the sisters of the plaintiff. Sixth defendant seems to have been one of the purchasers from other contesting defendants under an agreement of sale. In the accompanying application filed in I.A. No.40 of 2005, the plaintiff sought a relief of temporary injunction restraining the Defendants 1 to 5 from alienating the property. In that application, the revision petitioner is not shown or arrayed as a party thereto. I.A. No.440/2005 is still pending. In that application, the revision petitioner filed I.A. No.486/2005 under Order 1 Rule 10 seeking to come on record on the ground that she would be the affected party. On the premise that the sixth defendant in the suit that is the revision petitioner is the proforma defendant and she can work out her remedy in the suit that has already been filed seeking specific performance of the contract of sale as against Defendants 1 to 3, the executants thereof, she was neither necessary nor proper party to I.A. No.440/ 2005, the Court below dismissed that application.

(3.) It is a glaring example where the basic principles enumerated in the Civil Procedure Code and the Civil Rules of Practice lost site off by all concerned. Order 7 Rule 1 of the C.P.C. postulates that the plaint shall contain the particulars as enumerated in Clauses 'A' to T inter alia therein. Clause 'C' shows that the name, description and place of residence of the defendant shall have to be mentioned in a plaint. In the instant case, the revision petitioner is an eo-nominee party to the suit having been arrayed as sixth defendant. The plaint is silent to show that sixth defendant is a proforma party. She appears to be a subsequent purchaser under a contract of sale from Defendants 1 to 3. It is no doubt true the contract has not been crystallized into a regular sale transaction and the suit seeking the relief of specific performance filed by her is pending adjudication before the appropriate Court. Notwithstanding the same, having been added as a party defendant to the suit, can she be omitted from the array in the application filed in I.A. No.440/2005 seeking injunction against Defendants 1 to 3 who are the respondents therein from alienating the property is the question. Obviously, any such injunction restraining the Defendants 1 to 3, who are the respondents in I.A. 440/ 2005 would effect the interest of the revision petitioner, who is the sixth defendant to the suit. Rule 53 of the Civil Rules of Practice postulates that interlocutory applications shall be headed with the cause title of the plaint, original petition or appeal as in Form No.3. Having regard to the same in ordinary course, the cause title in LA. No.440/2005 should have contain the name of the revision petitioner as one of the respondents. If she is not added as an eo- nominee party thereto, the reasons should have been assigned inter alia in the application. Obviously, the applicant, who is the plaintiff has not shown the revision petitioner as a party nor assigned any reasons in support of such omission.