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2008 DIGILAW 195 (ORI)

JAIBUNNISHA BIBI v. SK. JALALUDDIN

2008-03-05

I.MAHANTY

body2008
JUDGMENT : Indrajit Mahanty, J. - The Appellant Jaibunnisha Bibi who was Defendant No. 4 in T.S. No. 636 of 1989 before the Court of the First Addl. Civil Judge (Sr. Divn.), Cuttack, seeks to challenge the judgment dated 13.5.2004 passed by the Addl. District Judge, Fast Track Court-II, Cuttack in Title Appeal No. 52 of 2000 who by his judgment and decree has set aside the decree passed in the suit and further directed remand of the matter to the trial Court for fresh disposal after impleading one Muta Alli as a party to the suit. 2. The brief facts leading to filing of the present appeal are that one Sk. Jalaluddin (R-1) had instituted T.S. No. 636 of 1989 in the Court of the First Addl. Civil Judge (Sr. Divn.), Cuttack for declaration of his right, title and interest over the suit property on the strength of a registered sale deed dated 7.11.1988 made out in his favour by Atturan Nissa Bibi (D.2) and Kaisuran Bibi (D.3), the daughters of one late Ramjan AM. Sk. Jalaluddin had also prayed for a declaration that Gouri Sankar Agarwalla (D.1) was a tenant whose tenancy has been terminated and for a further declaration that the said G.S. Agarwalla has no right, title and possession over the disputed land as well as for recovery of arrear rent and for permanent injunction against the Defendants restraining them from changing the nature and character of the suit land. 3. The plaint story indicates that the suit property originally belonged to one Ramjan Alli who died leaving behind is widow (2nd wife) Jaibunnissa Bibi (D.4) and two daughters through his pre-deceased first wife, namely, Atturan Nissa Bibi and Kaisuran Bibi (Defendants 2 and 3 respectively). The Plaintiff's case is that he purchased the suit property from the daughters of late Ramjan Ali, namely, Defendants 2 and 3 who claim that the suit property fell to their share after death of their father Ramjan Alli. The case of the present Appellant is that Ramjan Alli after death of his first wife-Fatima Bibi, married her and she fostered a son, namely, Muta Walli. However, Defendants 2 and 3 took the stand that Muta Walli was not the son of Ramjan AIM and he was the foster son of Jaibunnissa Bibi. The case of the present Appellant is that Ramjan Alli after death of his first wife-Fatima Bibi, married her and she fostered a son, namely, Muta Walli. However, Defendants 2 and 3 took the stand that Muta Walli was not the son of Ramjan AIM and he was the foster son of Jaibunnissa Bibi. The suit was decreed by the trial Court in favour of the Plaintiff vide the judgment dated 15.4.2000 and the said judgment was challenged by the present Appellant in T.A. No. 52 of 2000 before the Addl. District Judge, Fast Track Court-II, Cuttack. By the judgment dated 13.5.2004, the lower appellate Court came to hold as follows: From the very pleadings of the parties, it is seen that Muta Walli is a necessary party in the suit. But he has not been made a party in this case. Behind the back of Muta Walli the learned Civil Judge has given a finding that Muta Walli is not the natural son of Ramjan Alli. The law is well settled that no finding can be given behind the back of a person allegedly to have interest in the suit property. Under such circumstances without going through the merit of the case, it would be wise to remand the matter to the concerned Court for fresh disposal after being or Muta Walli as one of parties to the suit. Accordingly, in view of the aforesaid finding, the lower appellate Court set aside the judgment passed by the trial Court and remanded the matter to it for fresh disposal after impleading Muta Walli as one of the parties to the suit. 4. Mr. Mukherji, learned Counsel for the Appellant submitted that the lower appellate Court has committed gross error in law by not keeping in view the mandatory provisions of law laid down in Section 99 and Order 1, Rule 9 Code of Civil Procedure, since once the lower appellate Court came to a finding that Muta Walli was a necessary party to the suit, on such a finding, the appeal should have been allowed by directing dismissal of the suit, instead of setting aside the judgment and decree passed by the trial Court and remanding the matter back to it for fresh disposal after impleading Muta Walli as a party to the suit. Mr. Mr. Mukherji has placed reliance on Section 99 and Order 1, Rule 9 CPC which are quoted below: 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction: No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or nonjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. Provided that nothing in this section shall apply to non-joinder of a necessary party. Order I - Parties to suits. XX XX XX XX 9. Mis-joinder and non-joinder: No suit shall be defeated by reason of the mis-joinder 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. Provided that nothing in this rule shall apply to non-joinder of a necessary party. Mr. Mukherji contended that it was obligatory on the part of the lower appellate Court to allow the appeal and dismiss the suit on account of mis-joinder or non-joinder of a party and in terms of the aforesaid provisions, the lower appellate Court ought not to have directed remand of the matter. According to the learned Counsel for the Appellant, such a directive is in conflict with Section 99 and Order 1, Rule 9 Code of Civil Procedure. In support of his contention, learned Counsel for the Appellant placed reliance upon a decision of the Hon'ble Supreme Court in the case of S.K. Saldi Vs. General Manager, U.P. State Sugar Corporation Ltd. and another, and the case of State of U.P. Vs. Reishma Devi and Others, . 5. Mr. Ojha, learned Counsel for Respondent No. 1 submitted that the trial Court was competent to pass an order of remand in view of the provisions of law contains in Order 1, Rule 10(2) CPC which reads as follows: Order I - Parties to Suits. XX XX XX XX 10. Reishma Devi and Others, . 5. Mr. Ojha, learned Counsel for Respondent No. 1 submitted that the trial Court was competent to pass an order of remand in view of the provisions of law contains in Order 1, Rule 10(2) CPC which reads as follows: Order I - Parties to Suits. XX XX XX XX 10. Suit in name of wrong Plaintiff: (2) 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 before 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. Mr. Ojha, submitted that the Court is very much vested with the jurisdiction in terms of Order 1, Rule 10(2) to strike out or add parties at any stage of the proceeding either upon or without the application of either party and on such terms as may appear to the Court to be just. He further submitted that the said provision empowers the Court to add the name of any person whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the question involved in the suit. According to Mr. Ojha, there is no error whatsoever in the appellate order since the lower appellate Court was vested with that jurisdiction as noted herein above. 6. Mr. Ojha, further placed reliance upon a judgment of our High Court in the case of Mangala Khada and Others Vs. According to Mr. Ojha, there is no error whatsoever in the appellate order since the lower appellate Court was vested with that jurisdiction as noted herein above. 6. Mr. Ojha, further placed reliance upon a judgment of our High Court in the case of Mangala Khada and Others Vs. Guru Adhari and after him, Mukta Adhari and Others, wherein this Court while considering the scope of Section 99 and Order 1, Rules 9 and 10(2) and Order 6, Rule 17 CPC came to hold that no decision should be rendered in any suit in absence of necessary party and no suit shall be defeated for non-joinder or mis-joinder of a party and addition of a party may be made for abundant caution and a party may be given an opportunity to add necessary party. 7. On a consideration of rival contentions as noted herein above as well as the provisions of the CPC and the case laws referred to above, it becomes necessary first to consider the citations relied upon by the learned Counsel for the Appellant. In the case of S.K. Saldi (supra) the Plaintiff had filed a suit praying for a direction to go back to his parent department. The Plaintiff had not impleaded his employer-Sugar Mill as a party and suo motu sought to implead the employer-Sugar Mill in the SLP filed before the Supreme Court and that was also subsequently deleted. On consideration of all the facts, the Hon'ble Supreme Court came to hold as follows: Under these circumstances, the Sugar Mill against whom the relief sought for was not a party to the suit. Therefore, the suit was liable to be dismissed for nonjoinder of necessary and proper party. 7. From the above it would be clear that the facts which came up for consideration before the apex Court is not at all akin to the facts of the case at hand. In the present case, unlike the case of S.K. Saldi, the Plaintiff had impleaded all necessary parties when he filed the suit. He had impleaded his vendors as well as the second wife of the father of the vendors. Therefore, the suit cannot be said to have been liable for dismissal on account of non-joinder of necessary or proper party. In the present case, unlike the case of S.K. Saldi, the Plaintiff had impleaded all necessary parties when he filed the suit. He had impleaded his vendors as well as the second wife of the father of the vendors. Therefore, the suit cannot be said to have been liable for dismissal on account of non-joinder of necessary or proper party. In the present case, it is the second wife (Defendant No. 4) and Appellant herein who in her written statement claimed that she had given birth through her late husband-late Ramjan Ali a son, namely, Motu Alli. This fact, no doubt, came to be disputed by the Plaintiff and the trial Court came to a conclusion that Motu Walli was not the son of late Ramjan Ali. This finding of the trial Court came to be challenged before the lower appellate Court and by the impugned order, the lower appellate Court considering the pleadings of the Defendants in the suit, directed remand of the matter for fresh disposal after impleading Motu Walli as a necessary party to the suit. The facts of the present case are distinctly different from the facts of the case considered by the Apex Court referred to above and therefore, no assistance can be taken by the Appellant from the said judgment of the Apex Court. 8. The facts in the case of Reishma Devi (supra), relied upon by the learned Counsel for the Appellant, are clearly distinguishable from the facts of the present case. On a consideration of the facts of the said case, the Allahabad High Court came to hold that if in the circumstances of the case the appeals were allowed then they will result in two contradictory decrees and when such is a consequence of a defect in the memo of appeal, this Court cannot proceed to decide the appeals which are liable to dismissal due to defective record. 9. In the present case, the original decree has been quashed by the lower appellate Court and the matter has been remanded for fresh disposal and therefore, there is no possibility of two contradictory decrees. Therefore, I am of the view that neither of the citations relied upon by the learned Counsel for the Appellant is of any assistance to adjudicate the present lis. 10. Therefore, I am of the view that neither of the citations relied upon by the learned Counsel for the Appellant is of any assistance to adjudicate the present lis. 10. Now it becomes necessary to consider implication of various provisions of the CPC referred to by the learned Counsel for both the parties. Section 99 itself contains a proviso which reads as follows: Nothing in this section shall apply to non-joinder of a necessary party. A similar proviso is also found in Order 1, Rule 9 Code of Civil Procedure. On a conjoint reading of both the provisions, it is clear that whereas an appellate Court should not have reversed or varied nor remanded the matter on account of mis-joinder or non-joinder of party, yet the term mis-joinder or non-joinder of a party does not extend to non-joinder of a necessary party. 'Non-joinder of necessary party' has been specifically excluded from the applicability of the aforesaid provisions of law. In other words, it is always open for an appellate Court to remand a matter if it comes to a conclusion that there has been 'non-joinder of necessary party'. Apart from that Order 1, Rule 10(2) clearly indicates that the Court may at any stage direct the addition of a party when the Court is of the view that the said party's presence is necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. 11. On a reading of the aforesaid provisions, it is my considered view that there has been no error whatsoever committed by the lower appellate Court. I am further of the view that the lower appellate Court was competently and possessed the necessary jurisdiction to direct remand of the matter for fresh disposal after impleading Motu Alli as necessary party to the suit. 12. For the discussions made herein above, the appeal fails and is dismissed, but without costs. Since the suit is of the year 1989, the trial Court is directed to take effective steps for early disposal of the same in compliance with the order passed by the lower appellate Court. Final Result : Dismissed