Smt. Umme Saghir vs District Judge and Others

V.N. Khare, J.—By means of this petition under Article 226 of the Constitution, the Petitioner has come up before this Court against the orders dated 2-1-198R and 20-2-1988 passed by the Addl. Munsif, Gorakhpur and District Judge, Gorakhpur, respectively.

Izzatullah, Respondent No. 3, in this petition, filed a suit for injunction in the Court of Munsif, Gorakhpur. The suit was numbered as Civil Suit No. 691 of 1985. In the said suit the Petitioner and Respondent No. 4 were impleaded as Defendants No. 1 and 2 respectively. The Petitioner who was Defendant No. 1, filed her written statement. In the said written statement one of the pleas taken by the Petitioner was that other landlords of the premises in dispute who are necessary parties having not been impleaded as Defendants in the said, the suit was bad for non-joinder of necessary parties. On the aforesaid plea of the Petitioner, the learned Munsif framed Issue No. 6. Issue No. 6 was as to whether suit filed by the Plaintiff was bad for nonjoinder of necessary parties and the same was taken up as a preliminary issue. Learned Munsif decided the said issue against the Petitioner and in favour of Respondent No. 3 who was Plaintiff in the suit. Aggrieved, the Petitioner filed a revision before the District Judge. The learned District Judge dismissed the revision of the Petitioner. The learned Judge relying on the decision of this Court reported in Satya Narain Parasher Vs. III Additional District Judge and Others, held that the revision filed by the Petitioner against the order of the learned Munsif was not maintainable. That is bow the Petitioner has come up before this Court.

Learned Counsel for the Petitioner argued that the learned District Judge has failed to exercise the jurisdiction vested, in him u/s 115 of CPC in not deciding the revision on merits and, therefore, the order deserves to be quashed. On the other hand, the learned Counsel for the Respondents supported the view taken by the learned District judge.

For the purposes of this case, it is necessary to quote Section 115 of the CPC as amended by U.P. Act No. 31 of 1978 which came into force on 1st August, 1978. Section 115 CPC runs as under:

The High Court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, including such suits or other proceedings instituted before August 1, 1978 and the District Judge in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been, decided by any Court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit.

Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Judge, the High Court alone shall be competent to make an order under this section.

Provided further that the High Court or the District Court shall not under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceedings, except where:

(i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

According to amended Section 115 Code of Civil Procedure, the High Court or District Court shall not vary or reverse any order including order deciding the issue in the course of a suit or other proceedings except where the order is so varied or reversed, would finally dispose of the suit or other proceedings or the order if allowed to stand, would occasion a failure of justice or cause irreparable injury against the parties against whom it was made. In other words, under amended Section 115 CPC interference with an order is not warranted unless the order is such that it has been made in favour of the person applying for it, it would have disposed of the suit or proceedings or if allowed to stand would occasion a failure of justice or cause an irreparable injury to the party against whom it was made. There are two clauses of the proviso and the Petitioner is required to show that such an order attracts either proviso (a) or (b) of the amended Section 115 Code of Civil Procedure.

The case of the Petitioner was that there were other landlords of the property in dispute and are necessary parties and without their impleadment the suit cannot proceed. No doubt under Order 1 Rule 9 no suit can be defeated by reason of mis-joinder or non-joinder of parties, but it is not applicable to a case where necessary party has not been impleaded as Defendant in view of proviso to Order 1 Rule 9 of Code of Civil Procedure. In case it is found that certain persons who are necessary parties to the suit have not been impleaded in the suit, the suit may not proceed on that ground. This aspect in such a case would come within Clause (1) of the second proviso of amended Section 115 Code of Civil Procedure. In the present case, learned District Judge, Gorakhpur dismissed the revision as not maintainable as according to him no suit can be dismissed on the ground of non-joinder of the parties. The learned District Judge ought to have gone into this question within framee work of Section 115 CPC to find out as to whether persons not impleaded were necessary parties or not. If found that such persons were not necessary parties, of course the revision could be dismissed as not maintainable as the order if so varied or reversed would not finally dispose of the suit or other proceedings and further the decision on the said issue of non-joinder of parties also does not occasion a failure of justice to the parties against whom it is made. In brief, the legal position is that when a question of maintainability of a revision arises the Courts are required to go into the matter within the permissible limit of Section 115 CPC to find out as to whether such order attracts either proviso (a) or (b) of the amended Section 115 Code of Civil Procedure.

Since the learned District Judge has not touched the real issue within the frame-work of Section 115 CPC the view taken by him that the revision is not maintainable suffers from error of law.

The Writ Petition is allowed. The order dated 20-2-1988 is quashed. The case is sent back to the learned District Judge, Gorakhpur who shall decide the revision of the Petitioner afresh in accordance with law. There shall be no order as to costs.