Smt. Shyampati vs Munshi Ram and Others

Kamlesh Sharma, J.—Appellant and Respondents 2 to 7 are the Defendants, whereas, Respondent No. 1 is the Plaintiff and Respondents 8 and 9 are the profor ma Defendants and they will be referred to as such in this judgment. The Appellant-Defendant is aggrieved by the order dated 16.2.2000 passed by the District Judge, Shimla, whereby the appeal of the Plaintiff was accepted and the decree and judgment dated 5.12.1997 of the Sub Judge 1st Class Court No. 2, Rohru, District Shimla was set aside and the case was remanded with a direction to affor d a reasonable opportunity to the Plaintiff to implead the legal heirs of Jiu Nath and Patu as party to the suit and thereafter try the same afresh. It is further directed that in case the Plaintiff does not comply with the direction for the impleadment of legal heirs of said Jiu Nath and Patu trial Court may dismiss the suit by invoking the provisions of the proviso to Order 1 Rule 9 Code of Civil Procedure

The brief facts of the case are that the Plaintiff filed suit for declarationinter alia, that he along with profor ma Defendants has become owner of the suit by way of adverse possession and original Defendant Balku, the predecessor-in-interest of Defendants 2 to 5, has no right, title or interest to alienate or transfer the same to other Defendants and also for permanent prohibitory injunction.

In the written statement filed on behalf of Appellant-Defendant and original Defendant Balku,. whereas, the other Defendants were ex parte, one of the preliminary objections raised was that the suit was bad for non-impleadment of Jiu Nath and Padoo (Patu), the brOrs. of original Defendant Balku, who were shown joint owners in possession of the suit land in the revenue records. It was further alleged that Jiu Nath and Padoo (Patu) were alive and were living in Sarahan and Shimla, respectively, with their families and even if they were dead they were survived by their sons and daughters, who are necessary parties.

In the replication filed by the Plaintiff the averments made in the plaint were reiterated and it was alleged that the other co-sharers Jiu Nath and Padoo (Patu) were no more and their whereabouts were not known in the area for the last more than 20 years. Oh the pleadings of the parties issue No. 9 were framed, "whether the suit of the Plaintiff is bad for non-joinder of necessary parties."

The trial Court decided issue No. 9 in affirmative holding that though, the Plaintiff in his deposition struck to his stand that whereabouts of Jiu Nath and Padoo (Patu) were not known since his age of discretion and his witness Jagar Nath supported him, yet Defendant Ganga Ram, son of original Defendant Balku, DW-1, has categorically stated that Jiu Nath, who was his paternal uncle (CHACHA) has'' left behind three sons and three daughters, who are living in Rampur, whereas his another paternal uncle Padoo (Patu) was survived by one son who is residing- in Shimla. In the revenue record also, more specificallyin the latest Misal Haquiat, Ex. DX, Jiu Nath and Padoo (Patu) are shown as co-owners along with original Defendant Balku. Despite this evidence on record the Plaintiff failed to implead the legal representatives of Jiu Nath and Padoo (Patu). Ratherin his appeal befor e the District Judge he has assailed the findings on issue No. 9 as erroneous. While accepting the appeal of the Plaintiff the District Judge relying upon the judgments of Gauhati High Court in Ksh. Achouba Singh and Others Vs. L. Achouba Singh and Others, and Motoi Mia and Others Vs. Abdul Haque and Others, has held that after coming to the conclusion that the suit was bad for non-joinder of parties the trial Court was required to give a reasonable opportunity to the Plaintiff to implead the necessary parties in exercise of powers under Order 1 Rule 10 CPC and not to dismiss the suit on this count also besides dismissing it on merit. The Appellant-Defendant has assailed these findings in the present appeal.

We have heard learned Counsel for the parties and gone through the record. The question for determination in this appeal is whether for non-joinder of necessary parties the suit was required to be dismissed or an opportunity was required to be given to the Plaintiff to implead the necessary parties?

Learned Counsel for the Appellant-Defendant has argued that in view of proviso to Order 1 Rule 9 CPC the suit for want of necessary parties must fail atld there is no question of giving an opportunity to the Plaintiff to implead said necessary parties when despite preliminary objection he did not care to implead Jiu Nath and Padoo (Patu) as party-Defendants.

On the other hand, learned Counsel for the Plaintiff has urged that in view of Order 1 Rule 10(2) CPC the Court is empowered to strike out or make addition of parties, as such, the District Judge is within his rights to direct the Sub Judge to give an opportunity to the Plaintiff to implead the necessary parties. Both the learned Counsel have referred to the case law in support of their respective submissions.

In order to appreciate their respective contentions we will refer to Order 1 Rule 9 and Order 1 Rule 10(2) CPC and the case law. Order 1 Rule 9 is:

Misjoinder and non-joinder.-No suit shall be defeated by reasons 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 interest of the parties befor e it:

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

Order 1 Rule 10(2) is:

Court may strike out or add parties.-The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence befor e the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

In The State of Punjab Vs. Nathu Ram, while interpreting Order 1 Rule 9 CPC befor e addition of proviso, the learned Judges have held in paragraph 5 that if the Court can deal with the matter in controversy so far as regards the rights and interests of the Appellant and the Respondents other than the deceased Respondent, it has to proceed with the matter, but if it is not possible for the Court to deal with the matter in the absence of a party it has to refuse to proceed further and dismiss the matter and such eventuality will occur in the absence of necessary party." It is made clear that Rule 9 will not apply to the defect in the suit as of non-joinder of necessary parties as it cannot proceed in their absence.

In Kanakarathanammal Vs. V.S. Loganatha Mudaliar and Another, a Constitution Bench of the Supreme Court while interpreting Order 1 Rule 9, again befor e addition of proviso, has held that for want of necessary parties the suit is bound to fail, though the Court can direct the necessary parties to be joined under Order 1 Rule 10(2) CPC at the trial stage without prejudice to the plea of limitation of said parties. The learned Judges while examining the case in which the Plaintiff had inherited the property of her mother u/s 12 of the Hindu Succession Act had failed to implead her brother who had also inherited the property along with her. The observations of learned Judges in paragraph 15 are:-

It is unfor tunate that the Appellant''s claim has to be rejected on the ground that she failed to implead her two brOrs. to her suit, though on the merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said property devolves by succession u/s 12 of the Act. Thatin fact, is the conclusion which the trial Court had reached and yet no action was taken by the Appellant to bring the necessary parties on the record. It is true that under Order 1 Rule 9 of the CPC no suit shall be defeated by reason of the misjoinder or nonjoinder of the parties, but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under Order 1 Rule 10, sub Rule 2 direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties plea of limitation. Once it is held that the Appellant''s two brOrs. are co-heirs with her in respect of the properties left intestate by their mother, the present suit filed by the Appellant partakes of the character of a suit for partition and in such a suit clearly the Appellant alone would not be entitled to claim any relief against the Respondents. The estate can be represented only when all the three heirs are befor e the Court. If the Appellant persisted in proceedings with the suit on the basis that she was exclusively entitled to the suits property, she took the risk and it is now too late to allow her to rectify the mistake. In AIR 1931 229 (Privy Council) the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the Plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the Defendants that the co-mortgagors were necessary parties and in the end, it was urged on his behalf that the said co-mortgagors should be allowed to be impleaded befor e the Privy Council. In support of this plea, reliance was placed on the provisions of Order 1 Rule 9 of the Code. In rejecting the said prayer, Sir George Lowndes who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal befor e the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India.

Same view was taken in Vishnu Mahadeo Pendse Vs. The Rajen Textile Mills (P) Ltd. and Another, ; Sri Ram Pasricha Vs. Jagannath and Others, and Profulla Chorone Requitte and Ors. v. Satya Choron Requitte AIR 1979 SC 1682.

In Bal Niketan Nursery School Vs. Kesari Prasad, , the learned Judges were dealing with Order 1 Rule 10 CPC and not with Order 1 Rule 9 and have held that Order 1 Rule 10 has been expressly provided to meet the situation where bona fide mistake has occurred in the filing of the suit in the name of wrong person, which is required to be set right to promote the cause of justice.

In another judgment of Supreme Court in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, again the learned Judges were dealing with Order 1 Rule 10(2) CPC and have held that though the Plaintiff is dominus litis and he may choose to implead only those persons as Defendant against whom he wishes to proceed but under Order 1 Rule 10(2) the Court may at any stage of the suit direct addition of necessary or proper parties to enable it effectually and completely to adjudicate upon and settled all the questions involved in the suit.

In Laxmishankar Harishankar Bhatt Vs. Yashram Vasta (dead) by L.Rs., the learned Judges have held that in the absence of any clear finding based on relevant material about the existence of other co-owners and their being necessary parties the Plaintiff cannot be nonsuited on the ground of non-joinder of parties.

In Beharilal and Anr.v. Smt. Bhuri Devi and Ors.AIR 1997 SC 1879, the learned Judges have held that omission to join proper parties is not fatal.

In Anokhe Lal Vs. Radhamohan Bansal and others, the learned Judges have held that when the Plaintiff who is dominus litis of the suit is opposed to joining of third party and the consequences of joining of said party involves de novo trial, the Court should not join such party as Defendant. For coming to the conclusion the learned Judges have relied upon the judgment of Privy Council in Naba Kumar Hazra v. Radhashyam Mahish (supra).

In Division Bench of Kerala High Court in Venkideswara Prabhu Ravindranatha Prabhu Vs. Surendranatha Prabhu Sudhakara Prabhu and Others, for want of joining of a partner who is a necessary party in a suit of dissolution of partnership and settlement of accounts suit was held bad keeping in view the proviso of Order 1 Rule 9. Similarly, Madras High Court in S. Guhan and Ors.v. Rukmini Devi Arundale and Ors. AIR 1998 Mad 1, held that in a suit for framing of a Scheme for the proper administration of the Trust u/s 92(1) CPC the Trust is a necessary party and in the absence of which the suit deserves to be dismissed in view of proviso to Order 1 Rule 9.

In Gopibai Manaklal and Others Vs. Mohammed Hussain and Others, the Madhya Pradesh High Court refused to rectify the defect of non-joinder of necessary parties on the ground that the Plaintiff failed to take steps to join the necessary parties despite the objection of non-joinder of necessary parties taken at the earliest. (See Smt. Umma Saghir Vs. District Judge, Gorakhpur and others, ; Lakshmi Narain Vs. The District Judge, Fatehpur and others, ; Venkatesh Iyer Vs. Bombay Hospital Trust and others,

After perusing the judgments of Supreme Court and various High Courts there remains no doubt that the general rule is that suit cannot be dismissed on the ground of non-joinder of proper parties but this rule does not apply in case of non-joinder of necessary parties. All the objections on the ground of non-joinder of parties must be taken at the earliest but if despite said objection the Plaintiff declines to add necessary parties, he cannot subsequently be allowed in appeal to rectify the error by applying for amendment.

So far the proviso of Order 1 Rule 10(1) and (2) is concerned, it is to help the honest Plaintiff who by committing bona fide mistake has not added the necessary parties and who is ready and willing to amend his suit as and when the defect is pointed out. Though, the Court has a wide discretion in the matter of joinder of necessary or proper party, it must be exercised in a reasonable manner so as not to cause inconvenience or embarrassment to the Plaintiff who is the dominus litis and in exceptional cases, where the Court is satisfied that the presence of a particular person is absolutely necessary to effectively and completely adjudicate upon and settle all the points involved in the suit, it can implead that party as a Defendant notwithstanding the objection of the Plaintiff. But this power should be exercised so as not to introduce a new cause of action or alter the nature of the suit. It should be exercised at the stage of trial and-avoided to be exercised at the appeal stage, more so, if despite objections at the earliest the Plaintiff fails to implead the necessary parties.

Applying the ratio of the above judgments to the facts of the present case we are of the view that District Judge was not right in setting aside the decree and judgment of trial Court on merit to give an opportunity to the Plaintiff to add necessary parties when he had failed to do so despite the preliminary objection of non-joinder of necessary parties by the Defendants in their written statement. Despite the specific averments that Jiu Nath and Padoo (Patu) were survived by their sons and daughters, who are residing in'' Rampur and Shimla, the Plaintiff did not care to verify this fact and thereafter implead them as Defendants. Despite the oral evidence and the revenue record produced by the Defendants that the suit land was jointly owned by original Defendant Balku and his brOrs. Jiu Nath and Padoo (Patu) the Plaintiff did not care to implead them or their legal representatives, if they were not in the lan3 of living. Even after the findings of the trial Court that the suit was bad for want of non-joinder of legal representatives of Jiu Nath and Padoo (Patu), co-owners of the suit land, the Plaintiff did not show his willingness to implead them in his appeal befor e the District Judge and insisted that the findings of the trial Court were erroneous.

So far adding of necessary parties in exercise of powers under Order 1 Rule 10(2) CPC is concerned, the District Judge has not exercised this power as he has not directed the Plaintiff to add the necessary parties. His direction is limited to give him an opportunity to add necessary parties which he may avail or may not avail. Otherwise alsoin the facts and circumstances on record as discussed hereinabove it is not a fit case to exercise power under Order 1 Rule 10(2) CPC and the District Judge was required to examine the appeal on merit whether the trial Court has correctly decided all the issues including issue No. 9 in respect of non-joinder of necessary parties.

so far the judgment of Gauhati High Court in Motoi Mia and Others Vs. Abdul Haque and Others, is concerned, we find ourselves unable to agree with the proposition that proviso added to Order 1 Rule 9 is not to be constructed as to mean that merely because necessary party was not befor e the Court the suit must be dismissed and in such cases the power of the Court under Order 1 Rule 10(2) and Order 6 Rule 17 CPC can be invoked.

The ratio of the judgment of Supreme Court in State of Kerala Vs. Sridevi and Others, is not applicable in the present case, as in the case befor e the Supreme Court to Appeal against the award u/s 18 of the Land Acquisition Act was filed against the sole Respondent-claimant who had died after the award and the application under Order 22 Rule 4 CPC for the impleadment of his legal representatives was dismissed by the High Court as time barred. In these facts and circumstances the learned Judges of the Supreme Court have held that in such a case Order 1 Rule 10 CPC has to be invoked and there being no limitation for such an application in the said Rule it could be filed within three years under Article 137 of the Limitation Act.

The result of above discussion is that there is merit in this appeal and it is accepted. The impugned order dated 16.2.2000 passed by the District Judge is set aside and the case is remanded to the District Judge to restore the appeal to its original number and decide it on merit in accordance with law and keeping in view the observations made hereinabove. No order as to costs.

Records be sent back to the District Judge immediately. Parties are directed to appear befor e the District Judge on 26.11.2001.