Rashida Khatoon vs Syed Manjar Ali and Others

Anil Sharma, J.—Case is listed for final hearing at motion stage. This M.A. Has been filed under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 against the order dated 20.11.2012 passed in F.A. No. 23-A/2011 by the 6th Additional District Judge, Gwalior, M.P. whereby the case has been remanded back to the trial Court by setting aside the judgment and decree dated 25.04.2011 passed by 11th Civil Judge Class II M.P. in Civil Suit No. 6-A/2010.

The applicant has filed suit for declaration and permanent injunction with regard to House No. 11/1051 situated at Gospura No. 1 Char Shahar Ka Naka, Lashkar, Gwalior. It is admitted fact that the plaintiff and defendants received their respective shares in the suit property by family settlement dated 09.05.1997. It is also admitted fact that Syed Fiyaz Ali was the co-owner of the suit property with Late Ayub Ali the predecessor of defendants no. 1 to 8. The suit house has been registered in the Municipal Corporation in the name of Fiyaz Ali.

Learned Trial Court has dismissed the suit by holding that the plaintiff has failed to prove that he is the title holder and having possession over 1/4th part of suit house and it is further not proved that area of disputed house 3590 Square Ft.

Learned Appellate Court while disposing of the appeal held that since the house was registered in the name of Syed Fiyaz Ali in the Municipal Corporation and Syed Fiyaz Ali was also party to the family settlement, therefore, Syed Fiyaz Ali is necessary party in the suit. Lower Appellate Court allowed the application filed by the appellant under Order 41 Rule 27 of CPC on the ground that the documents filed with the application are relevant and necessary for just decision of the case and are to be considered during trial by the trial Court after the case is remanded.

Learned Counsel for the appellant has submitted that there was no cause of action against Fiyaz Ali and no relief has been claimed by anybody against Fiyaz Ali. Further Fiyaz Ali has filed affidavit in support of defendants before the trial Court and since there is no dispute regarding property of Fiyaz Ali after the family settlement, Syed Fiyaz Ali was not necessary party in the suit.

Learned counsel for the appellant has drawn attention towards provisions of Section 99 of CPC according to which no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any mis-joinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not effecting the merits of the case or the jurisdiction of the Court.

Learned counsel for the respondent has drawn attention towards proviso of Section 99 of CPC according to which nothing in this Section 99 shall apply to a non-joinder of necessary party.

Therefore, the main point for consideration in this appeal is that whether Fiyaz Ali is a necessary party in the suit. It is undisputed that the said property was registered in the Municipal Corporation in the name of Syed Fiyaz Ali and he was also party to the family settlement dated 09.05.1997.

Learned counsel for the appellant has cited judgment of this Court passed in the matter of President, Nagar Panchayat and Another Vs. Rakesh Kumar Sehgal, in which it has been held that decree passed cannot be reversed or modified only on the ground of non-joinder of parties if it does not affect the merits of the case or jurisdiction of the court. Learned Counsel for the appellant has also cited judgment of this Court in the matter of Zamku Bhilala and Others Vs. Masari Bhilala and Others, in which it has been held that objections in respect of non-joinder/mis-joinder of necessary parties and cause of action should be taken at the earliest possible opportunity-if the objection is not taken at the earlier possible opportunity, then such objection shall be deemed to have been waived. Learned counsel for the appellant submitted that there was no objection regarding non-joinder of necessary party before the trial Court therefore, lower appellate Court is also not justified in remanding the case for a fresh decision by impleading Syed Fiyaz Ali as necessary party. It is further submitted by learned counsel for the appellant that no reason has been assigned for allowing application filed under Order 41 Rule 27 of CPC.

On the other hand, learned Counsel for the respondent has cited judgment of this Court passed in the matter of Francis D'' Souza Vs. Smt. Rajni and others, in which it has been held that any appeal from an order of remand upon allowing of application under Order 41 Rule 27 of CPC by the First Appellate Court, the documents that were, were allowed to be filed were those which were obtained on the basis of Right to Information Act and were not in the knowledge of the party making the application at the time of trial, the application came within the ambit of Order 41 Rule 27(1)(aa) of CPC and was rightly held by the First Appellate Court. Learned counsel for the respondent has also cited judgment of this Court passed in the matter of Girja Shankar and Others Vs. Smt. Shanti Bai and Others, in which it has been held that the plaintiff filed suit for declaration, partition and possession without joining two Sisters as party, necessary party is that in whose absence effective decree could not be passed, the suit rightly remanded back.

Learned counsel for the appellant has relied upon the judgment dated 09.11.2005 passed in M.A. No. 459/05 in which it has been held that in view of the provisions of Section 99 of C.P.C. and law laid down by this Court in the case of Nagar Palika Morena (supra) the lower Appellate Court committed an error in reversing the judgment and decree passed by the trial Court on the ground of non-joinder of Pyare Singh and Kailash Singh who were necessary party in the suit proceedings. I am of the considered view that the lower Appellate Court committed an error in setting aside the judgment and decree on merits on the ground of non-joinder of parties which is contrary to Section 99 of CPC. This judgment relates to non-joinder of parties and question of non-joinder of necessary party has not been considered in this judgment and, therefore, proviso to Section 99 of CPC was not applicable in this case.

In the present case there is dispute regarding boundaries. The family settlement which is the genesis of the title of plaintiff and defendant relates to property which was registered in the name of Syed Fiyaz Ali and there is also dispute regarding area of the disputed property and being creator of family settlement impleadment of Syed Fiyaz Ali as party in the suit is necessary for just decision of the case and putting forward exact position regarding family settlement.

Therefore, the lower Appellate Court is just in passing the impugned order while allowing the application under Order 41 Rule 27 of CPC as the consideration of documents were necessary for just decision of the case at the time of fresh disposal of the case on merits after remand. Therefore the lower Appellate Court has rightly remanded the case back looking to the Provisions of Proviso 2 of Section 99 of CPC. Accordingly this appeal is dismissed. No orders as to costs.