Terajunnisha @ Buwabai vs Yakub Mohammad

N.K. Agarwal, J.—The instant second appeal was admitted for hearing by this Court on 30-4-96 on the following substantial question of law: -

Whether the lower appellate court was justified in dismissing the appeal, filed by the appellant, without giving an opportunity to add the State as the party to the suit ?

A suit to restrain defendant/respondent herein form interfering in plaintiff''s possession over the suit property was filed by the plaintiff/appellant herein. During the pendency of the suit, State of M.P. through Collector, Billaspur was impleaded as a party under Order 1 Rule 3-B of the code of Civil Procedure. The above suit was dismissed. The plaintiff preferred first appeal. Although State of M.P. was party before the trail court, the same was not added as respondent in the appeal. Later on, the plaintiff applied for joining State of M.P. as party/respondent. The said application was dismissed by the first appellate court vide its order dated 5-7-94 holding that the application filed after a period of 2 years and 9 months cannot be allowed and dismissed the application. Holding the State as necessary party, the appeal was also dismissed. Hence this appeal.

Order 1 rule 3-B of C.P.C. brought on the statute book by M.P. Act No. 29 of 1984 which reads as under :-

3-B conditions for entertainment of suit,-(1) No suit or proceedings for -

(a) declaration of title or any right over any agricultural land, with or without any other relief: or

(b) Specific performance of any contract for transfer of any agricultural land with or without any other relief. Shall be entertained by any Court, unless the plaintiff or applicant, as the case may be, knowing or having reasons to believe that a return u/s 9 of the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (No. 20 of 1960) in relation to land aforesaid has been or is required to be filed by him or by any other person before competent authority appointed under that Act, has impleaded the State of Madhya Pradesh as one of the defendants or non-applicants, as the case may be, to such suit or proceedings.

(2) No Court shall proceed with pending suit or proceed referred to in sub-rule (1) unless, as soon as may be, the State Government is so impleaded as a defendant or non-applicant.

Explanation-the expression "suit or proceeding" used in this sub-rule shall include appeal, reference or revision, but shall not include any proceeding for or connected with execution of any decree or final order passed in such suit or proceed.

Order 1 Rule 3-B and Order 6 Rule 4-A of C.P.C. has been brought on the statute book to protect interest of the State. These provision were never intended to provide a tool in the hands of private litigants for dismissal of the suit on the ground that the State has not been impleaded as a party.

The State which is joined as a party to the proceedings under Order 1 Rule 3-B of C.P.C. is not a necessary party in the sense in which the term is understood in the civil law. The Division Bench Of M.P. High Court in case of Brijraj Singh and Others Vs. Bitto Devi (Smt.) and Another, has held; "The defect as to non-Compliance with the provisions contained in Order 1 Rule 3-B of C.P.C. can be rectified by joining the State as a party to the proceeding and noticing it at that very stage at which the defect is detected or pointed out to the court.

It is clear that State is jointed as a party for the purpose of Order 1, Rule 3-B Civil Procedure Code, there is not right to relief against such party in respect of the matter involved in the proceedings in question nor can it be said that that it would be impossible to pass an effective decree in the absence of the State. Even if a decree is passed without joining the State as a party to the proceedings to which Order 1, Rule 3-B, CPC is attracted, the only result would be that the State would not be bound by the decree and in the event of an occasion arising for the purpose, it would be free to contend that the decree was secured for the purpose of defeating the provisions of the Ceiling Law. The efficacy of the decree between the parties would not be affected. It cannot be said that the decree passed would be a nullity or a decree without jurisdiction. Proviso to Section 99 and proviso to Order 1 rule 9, CPC do not have any applicability to the case of non-joinder under order 1 Rule 3-B, Civil Procedure Code.

In the instant case, before trial court, the State was impleaded as a party under Order 1 Rule 3-B of the Code. By defect/default, the appellant/plaintiff failed to implead the State of M.P. as a party/respondent. The appellate court should have pointed out this defect and should have directed the plaintiff to add the State of M.P. as a party. The same has not been done by the first appellate court and instead when the plaintiff preferred application for impleading/adding the State as a party to the suit, the same was dismissed as filed belatedly. The order passed by the first appellate court is perverse on the face of record and consequently dismissal of appeal is also bad.

In view of above, in the considered opinion of this court, the appeal deserves to be and is hereby allowed. The Substantial question of law formulated is answered accordingly. The judgment and decree impugned is set aside. The matter is remitted back to the first appellate court for rehearing the matter on its own merit after permitting the plaintiff/appellant to implead the State as a party / respondent and after issuing notice to the State.

Appeal is allowed. The cost of the appeal shall be borne by the respondent.

No order as to costs. Decree be drawn accordingly.