Omkar Singh and Others vs Man Singh and Others

S.K. Dubey, J.—This is an appeal by the Defendants/Appellants against the judgment and decree dated 18.3.1987 passed by the First Additional Judge to the Court of District Judge, Vidisha in Civil Appeal No. 88A/1985, preferred against the judgment and decree dated 11.11.65 passed by Civil Judge Class-II, Basoda in Civil Suit No. 20A/63 wherein the suit of the Plaintiffs for declaration and possession of the lands bearing Khasra Nos. 143, 146, 152,164,169,168,188,185 and 205, area 71 bighas, 5 biswas, situated in village Madia Ponia, was decreed.

Aggrieved of the judgment and decree, the Defendants preferred an appeal which was allowed. The Plaintiff/Respondent No. l filed a second appeal No. 428/69 against the judgment and decree of first appellate Court, which was allowed by this Court on 23.7.1985 and the case was remitted to the first appellate Court to rewrite the judgment properly, afresh in accordance with law, after hearing the parties. On receipt of the record, the Respondent/Plaintiff raised a preliminary objection about the maintainability of the appeal that the State of M.P., though impleaded as a party in the trial Court, having not been impleaded in the appeal, the appeal is not maintainable. The first appellate Court without deciding the appeal, as directed in the order of remand, dismissed the appeal for non-joinder of the necessary party, i.e., the State of M.P. Aggrieved of this, the Appellants/Defendants have filed this second appeal, which was admitted by this Court on the following substantial question of law:

Whether the lower appellate Court has committed an illegality in dismissing the appeal on the ground that the State of Madhya Pradesh was a necessary party?

Shri K.B. Chaturvedi, learned Counsel for the Respondent No. l/Plaintiff, placing reliance on a decision of the Supreme Court in Madan Naik (Dead) by Legal Representatives and Others Vs. Hansubala Devi and Others, and a Division Bench decision of this Court in case of Ajit Singh and Another Vs. Bhagwanlal Master and Others, raised a preliminary objection that as there was no decree in terms of Section 2(2) of the Code of Civil Procedure, no second appeal would lie.

To meet this preliminary objection, Shri K.N. Gupta, learned Counsel for the Appellants/Defendants, contended that an appeal is continuation of the suit, initially when the appeal was heard, no objection about the non-joinder of the State of M.P. as party in the appeal was raised before the first appellate Court. Not only this, when the Respondent/Plaintiff filed the second appeal against the said order, the State was impleaded as Respondent No. 2, therefore the objection was not fatal. In any case, when the objection was raised of dismissing the appeal because of the non-joinder of State as a party, after the order of remand, there was a formal adjudication by the Court dismissing the appeal, that is binding till it is not set aside.

To appreciate the preliminary objection, it would be appropriate to reproduce the definition of the decree, as defined in Section 2(2) of Code of Civil Procedure, which reads thus:

Section 2(2): "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within (* * *) Section 144, but shall not include -

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation -- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final where such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

A bare look to the definition of "decree" shows that there should be a ''formal expression'' of an ''adjudication'' which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, which include rejection of plaint also, while determining whether it is a decree or not, it is the substance rather than the form which should be looked at. The essence is the nature of the decision, whether it is an adjudication of a particular kind or not rather than the manner of its expression. A decision holding that a suit is not maintainable conclusively determines the rights of the parties in the suit. Such an adjudication on a preliminary point raised by a Defendant in a suit really results in the dismissal of the suit on that point alone. It thus amounts to a formal expression conclusively determining the rights of the parties and is a decree. See Nand Kumar Sinha Vs. Rai Bahadur Pashupati Ghosh and Others, Nand Kumar Sinha v. Rai Bahadur Pashupati Ghosh and Ors.

An order striking the names of one or more Defendants also amounts to a ''decree'' in case it conclusively determines the rights between the parties. Thus on parity of reasoning, an order directing that one of the Appellants shall not be treated as an Appellant in the case and the appeal be treated as an appeal on behalf of the other Appellant or Appellants only must be held to amount to a decree qua that Appellant as such an order in substance determines the right of that Appellant to maintain the appeal, and is, therefore, appealable, as is the view of the Rajasthan High Court. See State of Rajasthan and Another Vs. Chander Singh, State of Rajasthan and Anr. v. Chander Singh.

A Division Bench of this Court in case at New India Insurance Co. v. State Bank of India M.A. No. 177 of 1977 (G); decided on 17.1.1984), reported as a short note in 1984 WN 143, has held that an order dismissing a suit against one of the Defendants being no cause of action against him amounts to a decree u/s 2(2) of Code of Civil Procedure, and was, therefore, appealable.

In the case in hand, the appeal was dismissed against all the Respondents by the first appellate Court because of not joining the State as one of the Respondents. In my opinion, such an order in substance determined the right of the Appellants to maintain the appeal. That order was not appealable either u/s 104 or under Order 43, Rule 1, CPC Unless such an order is set aside, it remains binding on the parties determining their rights, therefore, amounts to a decree u/s 2(2), Code of Civil Procedure, and, thus is appealable.

Coming to the merits of the appeal, at first sight, the order cannot be maintained. Because of some error the State could not be impleaded in the appeal in the array of parties, and no objection was raised at the earlist opportunity. In the second appeal, the State was impleaded as a party, and there, objection about maintainability of appeal in the first appellate Court for not impleading the State as a parly was not raised. This Court after hearing the appeal on merits remitted the case to rewrite the judgment afresh in accordance with law, after hearing the parties; the order of remand was binding, and hence, the first appellate Court was not competent to dispose of the appeal on the objection raised by the Respondent for omitting to implead State as one of the Respondents in the appeal.

In any case, the first appellate Court ought to have exercised the powers under Order 41, Rule 20, Code of Civil Procedure, as the State was omitted to be a party in the appear for a bona fide mistake and the Court was not in a position to decide the cause without the State being made a party. To do justice between the parties by an adjudication on merits, the first appellate Court ought to have impleaded or allowed an opportunity to Appellant to implead the State as a party to the appeal. True, Sub-rule (2) to Order 41, Rule 20, Code of Civil Procedure, provides that no Respondent shall be added under Rule 20 of Order 41, alter the expiry of period of limitation for appeal, but, for that the Court on cause being shown after recording of reasons, could have allowed the impleadment so as to bring about an adjudication of the cause on the merits. See AIR 1951 Nag 415; E. Madhavi Amma and Others Vs. E. Indusekharan and Others, Madhavi Amma and Ors. v. E. Indusekliaran and Ors.

There is Anr. reason for not sustaining the order, as in view of Order 1, Rule 3-B, CPC introduced in the CPC by M.P. Amendment Act, 1984 (Act No. 29 of 1984) where the subject matter is an agricultural land which attracts the provisions of the M.P. Ceiling on Agricultural Holdings Act, 1960, in that situation, the defect can be cured by impleading State as a party, and an appeal or a suit cannot be dismissed on that ground, as the defect being a curable irregularity. See a Division Bench decision of this Court in Brijraj Singh and Ors. v. Smt. Bitto Devi and Anr. 1991 (2) MPJR 279. As the amendment came into force in 1984 and the appeal was decided in 1987, the appellate Court was bound to direct the parties to cure the irregularity by impleading State as a party to the appeal.

As a result of the aforesaid discussion, the order of the appelate Court has to be set aside, and is hereby set aside. The record is sent back to the first appellate Court for deciding the appeal afresh on merits, after impleading State as a party. Parties shall appear before the appellate Court on 6th April, 1993, for that no fresh notice shall be issued to the parties, as they have been noticed here. However, the appellate Court shall issue a notice to the State of Madhya Pradesh, through Collector, Vidisha and Government Pleader, before hearing of the appeal on merits. Records be sent back immediately so as to reach the first appellate Court on or before 6th April, 1993. Stay order passed by this Court shall stand vacated.

No order as to costs.