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2011 DIGILAW 2474 (HP)

Jawala Prashad v. Laxmi Narain

2011-09-20

DEEPAK GUPTA

body2011
JUDGEMENT Deepak Gupta, J. (Oral). 1. By means of this petition the appellant has challenged the order dated 21.3.2011 passed by the learned Fast Track Court, Mandi whereby the Appellate Court set-aside the judgement and decree of the learned trial Court and remanded the entire suit for fresh trial on the ground that Rukmani Devi widow of Fateh Baksh, Devendri Devi, Taruna Devi and Nalni Devi were necessary parties in the suit. 2.The brief facts of the case are that the respondent (hereinafter referred as the plaintiff) and the petitioner (hereinafter referred as the defendant) owned the adjoining properties. The plaintiff does not dispute the fact that the defendant Jawala Prashad is the owner of Khasra Nos. 2529 and 2530. According to the plaintiff he has constructed his house on Khasra No. 2521 and the path from his house to the public road goes through Khasra No. 2529. It was prayed that he has a right of easement over the path on Khasra No. 2529 and that the defendant Jawala Prashad is intending to raise construction over Khasra No. 2529 and is thus obstructing the easementary right of ingress and egress of the plaintiff. 3.Jawala Prashad in his written statement did not contest the ownership of various khasra numbers. He also did not deny that he was raising construction over Khasra No. 2529 but according to him the plaintiff has no easmentary right over Khasra No. 2529. In fact, the case set up by the defendant was that the construction was raised by the plaintiff over his land only in the year 1994 by which time the defendant’s father had already purchased Khasra No. 2529 and therefore the question of any easmentary right existing in favour of the plaintiff did not arise. According to the defendant, adjoining to the house of the plaintiff there is an exclusive passage which belongs to the defendant over Khasra No. 2529 and just on the other side of the passage there is vacant land over which the defendant is raising construction. The case set up by the defendant appears to be that the plaintiff has covered each and every inch of the land owned by him and now wants to use the land of the defendant for passage. The case set up by the defendant appears to be that the plaintiff has covered each and every inch of the land owned by him and now wants to use the land of the defendant for passage. 4.The learned trial Court dismissed the suit on merits and also on the ground that the suit was bad for non joinder of parties since the land comprised in Khasra No. 2529 was not only owned by defendant Jawala Prashad but also by Rukmani Devi, Devendri Devi, Taruna Devi and Nalni Devi, referred to above. The plaintiff filed an appeal and the learned lower Appellate Court relied upon the judgement of this Court in Vijay Kumar and others vs. Rattan Chand and others, 2008 (2) Shim.L.C 203 and held that the Court could not have dismissed the suit for non-joinder of parties without giving an opportunity to the plaintiff to add the parties. 5.In my view the approach of the learned Appellate Court is totally erroneous. The observations made by the learned Single Judge of this Court in Vijay Kumar’s case (supra) were made in the peculiar facts and circumstances of the case. In fact in para 8 the learned Judge observed that the facts of the case were very peculiar. Furthermore, in that case it was not stated clearly who were the necessary parties. In that case Kanchan Kumar, who was the necessary party, himself filed an application for being impleaded in the suit and on the same date his application was rejected as being not maintainable and the suit was dismissed on the ground that all the necessary parties were not made parties to the suit. It is in that context that this judgment was passed. 6.The learned Single Judge in fact distinguished the judgement of a Division Bench of this Court in Shyampati vs. Munshi Ram and others, 2002(1) Shim.L.C. 328 on the ground that the Division Bench had found that despite preliminary objections having been raised the plaintiff had not taken any steps to implead the necessary parties. In Shyampati’s case (supra) a learned Division Bench of this Court after analyzing the entire law on this aspect and after making reference to a number of judgments held as follows:- “20. In Shyampati’s case (supra) a learned Division Bench of this Court after analyzing the entire law on this aspect and after making reference to a number of judgments held as follows:- “20. After perusing the judgements 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. 21. 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 exception al 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. 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.” 7.Order 1 Rule 9 and 1 Rule 10 of the CPC reads as follows:- “Order 1 Rule 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 interest of the parties actually before it: [Provided that nothing in this rule shall apply to non-joinder of a necessary party] Order 1 Rule 10: Suit in name of wrong plaintiff: (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (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. (3)No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (3)No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended— Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.” 8.In terms of Order 1 Rule 9 CPC and under Order 1 Rule 10 CPC a suit cannot be dismissed on the ground of non-joinder of proper parties. However, if the parties are necessary parties then the suit has to be dismissed. The law is also clear that objection with regard to the non- joinder of necessary parties has to be taken at the earliest stage and if despite the said objection the plaintiff declines to take steps to implead the necessary parties he cannot subsequently be allowed in appeal to rectify the error. 9.It would indeed be a travesty of justice, if a plaintiff who despite a specific objection being raised that certain parties are necessary parties continues with the suit and takes no steps to implead the necessary parties. If at the final stage it is found that the parties which have not been joined are necessary parties then the plaintiff cannot now after many years of trial claim that the suit cannot be dismissed. If any party takes the risk of proceeding with the suit without impleading the necessary parties despite specific objection having been raised at the earliest stage, he cannot later on, especially at the appellate stage, claim that now he should be permitted to add those parties. 10. In the present case, the suit of the plaintiff was dismissed both on the merits and on the ground of non joinder of parties. By permitting the plaintiff to add parties at the appellate stage and by remanding the suit as a whole the learned lower appellate court has virtually set- aside the findings given on merits also. 10. In the present case, the suit of the plaintiff was dismissed both on the merits and on the ground of non joinder of parties. By permitting the plaintiff to add parties at the appellate stage and by remanding the suit as a whole the learned lower appellate court has virtually set- aside the findings given on merits also. Why should the plaintiff or any other party benefit for its own wrong acts and why should the defendant suffers in case the plaintiff despite objection having been raised takes no steps to implead the necessary parties. Therefore, in my opinion, the judgement of the learned lower Appellate Court to this extent is totally wrong. 11. Shri Sanjeev Kuthiala, learned counsel for the plaintiff has urged that the suit is not bad for non joinder of parties since it was a suit for injunction alone and the obstruction in the easmentary claim was being made only by Jawala Prashad and not by the other co-sharers. This Court is not expressing any view on this aspect of the matter since this issue has not been dealt by the lower Appellate Court. Therefore, while setting aside the order of the lower Appellate Court, it is made clear that this Court has not decided whether the parties were necessary parties or not and the lower Appellate Court while deciding the appeal shall decide the same in accordance with law. The parties through their counsel are directed to appear before the learned lower Appellate Court on 19th October, 2011 and the lower Appellate Court shall make endeavour to dispose of the appeal at the earliest and in any event not later than 31st December, 2011. The Registry shall return the records of the courts below so as to reach well before the next date. No costs.