Raghbir Kaur vs Gurmej Singh

Gokal Chand Mittal, J.—On 21-7-1981, Gurmej Singh filed a suit for possession of agricultural land measuring 43 Bighas, 12 Biswas on the pleas that it was owned by Gurdial Singh and he executed an unregistered will dated 19-7-1978 in his favour and since Gurdial Singh died, he inherited the same and was entitled to possession He claimed to be the sole legatee under the will. Smt. Raghbir Kaur was impleaded as the sole Defendant and she pleaded that Gurdial Singh deceased had executed a registered will dated 27-2-1978 in her favour and she was in possession of the land in dispute as the legatee under that will and strongly disputed the execution of the unregistered will dated 19.7.1978 set up by the Plaintiff On the contest of the parties, the trial Court framed issues on which the trial proceeded The onus of proof of the will set up by the Plaintiff was on the Plaintiff and of the will set up by the Defendant was on the Defendant. The Plaintiff closed his evidence in affirmative on 11-1-1982 and thereafter the Defendant led evidence in support of the will set up by her On 21-11-1984 the Plaintiff filed an application for permission to lead additional evidence. That application was dismissed by the trial Court on 29-2-1984 and the Plaintiff''s revision to this Court also remained unsuccessful by order dated 27-4-1984. Thereafter, the Plaintiff filed an application before the trial Court on 11-5-1984, that means almost on the conclusion of three years of the pendency of the suit, under Order 23, Rule 1 of the CPC for permission to withdraw the suit with liberty to file a fresh one on the same cause of action. The reason given in the application for the withdrawal of the suit was that under the Will set up by the Plaintiff, there were two more legatees in addition to the Plaintiff. Those legatees were stated to be religious institutions out of which one was a Gurdwara and the other a Masjid. On this basis it was pleaded that since those two legatees were not made parties to the suit therefore, there was formal defect in the suit and the suit was likely to fail on that ground The application was contested by the Defendant. The trial Court by order dated 18-5-1984 allowed the application and allowed the suit to be withdrawn with permission to file a fresh one on payment of Rs. 100/- as costs. While considering the merits of the application the trial Court observed as follows:

No doubt non-impleading of the beneficiaries of the will as party to the suit is not formal defect but this can be said to be a sufficient ground for allowing the Plaintiff to institute a fresh suit....

The aforesaid was the sole reason given in the order for allowing the application. This is revision by the Defendant against the aforesaid order.

After hearing the Learned Counsel for the parties and on consideration of the entire matter, I am of the view that the Court below exceeded its jurisdiction in allowing the Plaintiff to withdraw the suit with liberty to file a fresh one, and in any case acted illegally with material irregularity in passing the order. The Plaintiff pleaded in para 2 of the plaint that the Will had been executed in his favour as he had been rendering service to the deceased as his brother and he was the owner under the Will. The Defendant did not plead in the written statement if there was any other legatee. Admittedly, no issue was framed if the suit was bad for non-joinder of parties and no evidence in this behalf was recorded during the trial After the case had gone through the major part of the trial in the trial Court for about three years and after the Plaintiff failed in getting permission in the trial Court to lead additional evidence, this application was filed which was not even a bona fide application. In the new suit, if permission were to be granted, the Plaintiff could fill in the lacuna in the evidence, if any left in the first suit This seems to be the ulterior motive in filing the application for withdrawal of the suit with permission to file a fresh one. Coming back to the ground mentioned in the application for withdrawal of the suit with permission to file a fresh one, when there is no allegation in the pleadings, nor the matter has been put in issue whether the suit is bad for non joinder of the parties, at the instance of the Plaintiff the suit could not be allowed to be dismissed as withdrawn with permission to file a fresh one Reference may be made to Order 1, Rules 9 and 13 of the C P.C. Rule 13 provides that all objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. In this case the Defendant is not raising any such point even now and is now deprived from raising the point if the first suit is allowed to continue. As regards Rule 9, it clearly provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. To this Rule proviso was added by the Amending Act of 1976 which is in the following terms:

Provided that nothing in this rule shall apply to non-joinder of a necessary party.

While according to Rule 9 no suit can be defeated for nonjoinder of the parties, according to the proviso the suit can be defeated if a necessary party is not joined in a suit. Therefore, the question arises whether the two additional legatees (assuming that they are additional legatees under the Will) are necessary parties to the suit ? The Plaintiff''s case is that the Defendant is a trespasser because the Defendant is in possession without any right whereat the Plaintiff is owner of the property. Assuming that what is stated in para 2 of the plaint meant that he along with the other co-legatees was the owner of the property in dispute, all the three would be co-sharers/co owners and it is held by a Full Bench of this Court in Biru and Anr. v. Suraj Bhan and Ors. (1983) 85 P.L.R. 568 that co-sharer is entitled to bring a suit against a trespasser, such suit would not be bad for non joinder of parties. To the same effect was another Full Bench judgment reported in Ram Niranjan Das and Another Vs. Loknath Mandal and Others, which was followed. Therefore, the Plaintiff can succeed in the suit with regard to possession of the entire land on his own behalf and on behalf of his other co-sharers, i.e., the co-legatees and if the Defendant is found to be in possession without any right, the suit can be decreed in the absence of the co-legatees and there would be no impediment with the trial Court in doing so if the facts of the case ultimately justify such a possession. Therefore, it is clear that on the facts of this case, the co-legatees are not necessary parties and once that is so, the suit cannot be dismissed later on on the ground that the co-legatees were not impleaded. Moreover, as I have said above, the trial Court will not permit the Defendant to raise this point either by way of amendment or at the time of arguments.

If this point cannot be allowed to be raised during the trial of the case, Section 99 of the CPC further provides that no decree shall be reversed or varied in appeal on account of non-joinder of parties, who are not found to be necessary parties. Since the co-legatees are not necessary parties in this case, the question of allowing such point to be raised at any subsequent appellate stage will also not arise.

Probably for the aforesaid reasons, the trial Court also came to the conclusion that there was no formal defect in the suit and it proceeded to grant permission for the withdrawal of the suit by observing that for sufficient ground the suit can be allowed to be withdrawn. Nothing is stated in the order as to which were the other sufficient grounds. this Court has held in Bhag Mal Vs. Master Khem Chand and Others, , that other sufficient reasons have to be anlalgous to the formal defect and the Parliameut did not give unfettered jurisdiction to the trial Court to allow suits to be withdrawn with permission to file fresh ones merely by saying ''for other sufficient reasons'' without disclosing what those other sufficient reasons are. As already demonstrated above, the presence of the other co-legatees is not at all necessary for the determination of the controversy in the suit. In spite of the lapse of three years since the death of the testator, they have neither filed a separate suit to claim share in the property, nor tried to join in this litigation. On these premises, it is too late either to permit the Plaintiff to withdraw the suit with permission to file a fresh one or to drag the two legatces into litigation. Since they are not parties to this litigation, their rights, if any, would not be affected. Therefore, it is a case where the trial Court has allowed the application without mentioning the reasons in the order for granting the same. The practice of the trial Courts in permitting the suits to be withdrawn after major part of the trial has gone through on such flimly grounds, has to be strongly deprecated. Multiplicity of proceedings should be avoided as far as possible and in this case, after long trial of three years if the suit is allowed to be withdrawn, it would amount to multiplicity of proceedings because there would be a fresh suit, fresh written statement and all new proceedings thereafter. In the new suit, the Plaintiff would be draging these two additional legatees unnecessarily while the Defendant would be harassed in those proceedings. If the Plaintiff was so keen, he could have impleaded these two legatees either in the original plaint or could have sought direction of the trial Court to implead them as Defendants so as not to reopen the case de novo for them, but to grant them opportunity to join from that stage of the proceedings in the suit, otherwise leaving them to their remedy of a separate suit. In this view of the matter, I am of the view that the order of the Court below is wholly without jurisdiction and deserves to be rectified in the revisional jurisdiction of this Court. I am not in agreement with the Learned Counsel for the Plaintiff that on the facts of the given case, this Court has no jurisdiction to interfere in the revisional jurisdiction.

For the reasons recorded above, this revision is allowed, the order of the Court below dated 18.5.1984 is set aside and the trial Court is directed to proceed with the suit from the stage it was on the date of passsng the impugded order and to complete the proceedings expeditiously by giving preference to this suit. The parties, through their counsel are directed to appear before the trial Court on 29.10 1984 For the error of the trial Court, I do not burden the Respondent with costs.