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Allahabad High Court · body

2016 DIGILAW 3127 (ALL)

ASHOK KUMAR SEN v. STATE OF U. P.

2016-09-14

ARUN TANDON, SUNITA AGARWAL

body2016
JUDGMENT By the Court.—Heard Sri Om Prakash Pandey, Advocate, holding brief of Sri Rajesh Kumar, appearing for the petitioner and Ms. Smriti Kartikaya, learned counsel appearing for the respondent. 2. This intra Court appeal is directed against the judgement and order of the learned Single Judge dated 11.4.2011. The order reads as follows : “The petitioner is aggrieved by the appointment made pursuant to the advertisement issued by the office of the District Panchayat, Kaushambi. The petitioner has not placed on record the appointment orders and nor he has impleaded the appointed persons as respondents. No relief, therefore, can be granted to the petitioner. The writ petition is, accordingly, dismissed.” 3. From the aforesaid it is clear that the writ petition has been dismissed on two grounds (a) non impleadment of necessary parties (b) non filing of the appointment order of the persons who have been appointed. 4. In our opinion, once it is found that the writ petition suffered from non impleadment of necessary parties then the writ petition should have been dismissed on that ground alone and all other observations are not required to be made. 5. We shall, therefore, address our self to the first issue with regard to the dismissal of the writ petition on the ground of non impleadment of necessary parties. The provisions of Order I do not apply to writ proceedings, but principle in general of this provision are made applicable, as guidelines for the writ Court. 6. The legal principles applicable in the matter of impleadment of necessary parties in writ petition has to be regulated by the provisions of Civil Procedure Code by necessary implication, as there is no other statutory provision regulating the impleadment of parties in a writ petition. At least no other provision in the matter to implead of parties has been brought to the notice of the Court. 7. The joining of parties to the suit is regulated by Order I C.P.C. The provisions of Order I Rule-1 and Order I Rule-3 deal with the persons who may join as plaintiff and with those who may be impleaded as defendant respectively. 8. For our purposes what is relevant is Order I Rule-9 of C.P.C. which reads as follows : “9. 8. For our purposes what is relevant is Order I Rule-9 of C.P.C. which reads as follows : “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.” 9. It will be seen that main provision of Order I Rule 9 specifically declares that no suit shall be defeated by the reasons of the non joinder or mis-joinder of parties and the Court may in every suit deal with the controversy so far as the rights and interest of the parties actually before it. But the proviso to the said Rules 9, provides that nothing in the said Rule shall apply to non joinder of necessary parties. Meaning thereby that the Court may not proceed with suit where a necessary party has not been impleaded. At this stage we may also refer to Order 1, Rule-10 Sub Clause-2 of C.P.C., which reads as follows : “10. (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.” 10. From a simple reading of the same it is clear that the Court may at any stage of the proceeding either upon or without the application of the either parties and on such terms, as may appear to the Court, to be just, order that name of any party improperly joinded whether as plaintiff or defendant be deleted and the name of any persons, who ought to have been joined whether as plaintiff or defendant or it is necessary to enable the Court effectively and completely adjudicate the questions involved in the suit be added. Order 1 does not contemplate any consequences of non-impleadment of a necessary party. 11. In our opinion from the scheme of Order I it is apparent that not only the plaintiff is under an obligation to implead all necessary parties, the Court is also required to exercise its discretion and to ensure that all parties for effective and complete adjudication of the issues raised are made party to the suit. Therefore, the intention of the legislature is that normally no suit is to be dismissed for non impleadment of necessary parties unless and until the Courts direct the plaintiff to implead a person, as a party to the suit and the plaintiff refuses to comply with the orders and in that circumstances alone the Court will be left with no alternative but to dismiss the suit for non compliance of its order for impleadment of necessary party. 12. From the provisions of Rule-10 Sub Rule 2, it is further clear that impleadment of a party to the suit can be directed at any stage of the proceeding which further supports the conclusion of this Court that dismissal of a suit for non impleadment of a necessary party should be in a case, where the plaintiffs fails to comply with the directions of the Court refuses to implead the necessary party and not otherwise. 13. Another aspect of the matter which does need consideration by us is as to whether on a suit being dismissed for non impleasment of necessary party can a second suit be filed after removing the defect or not. 14. We find that the principles of res judicata will not apply when a suit is dismissed for non implement of necessary party, in as much as no issue has been tried between the parties by the Court concerned as the other person was not a party to the proceeding, even if any finding are returned by the Court concerned. Therefore, such an order will not operate as res judicata. Even otherwise, suits is to be dismissed for non impleadment of necessary party without adjudicating upon any rights, qua that party as claimed in the suit, i.e. the person, who is a necessary party and has not been implicated. 15. We also take not of the fact that where the legislature wanted that no second suit be maintain even when the earlier suit has been dismissed. 15. We also take not of the fact that where the legislature wanted that no second suit be maintain even when the earlier suit has been dismissed. It has specifically provided, so reference be had to Order-9 Rule 13, wherein it has been disclosed that when a suit is dismissed in default then no second suit for the same relief would be maintainable. Order IX, Rule 9 of C.P.C. reads as follows : “9. Decree against plaintiff by default bars fresh suit.—(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, But he may apply for an Order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non appearance when the suit was called on for hearing, the Court shall make an Order setting aside c the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No Order shall be made under this rule unless notice of the application has been served on the opposite party.” 16. No similar provision has been made under Order I of C.P.C. 17. In view of the aforesaid, we are of the considered opinion that a second suit for same cause would be maintainable after removing the defect of non impleadment of necessary parties, where the first suit has been dismissed by the Court for non impleadment of necessary party. 18. This is, however, without prejudice the rights of the plaintiff to challenge the order of the Court on the ground that a particular party is not a necessary party and therefore, dismissed of the suit on that ground is unjustified. 19. So far as the other finding returned by the learned Single Judge on the issue of non filing of the appointment letter of the selected candidates is concerned. It is submitted before us that the petitioner, who is a third party, to the contract of appointment acess to the appointment letter which has been issued by the department in favour of the selected candidates. Even otherwise, it is stated that copy of one such letter was brought on record by the petitioner, which has not been taken note of. 20. Even otherwise, it is stated that copy of one such letter was brought on record by the petitioner, which has not been taken note of. 20. Be that it may, since the first writ petition has been dismissed amongst other on the ground of non impleadment of necessary parties by the petitioner, all other observations loose significance. Therefore, we disposed of the present Special Appeal by providing that the proper remedy available to the petitioner to file a second writ petition by removing the defect of non impleadment of necessary party. The said writ petition is to be considered on its own merit irrespective of the order passed in the first writ petition. 21. Accordingly the Special Appeal is disposed of. 22. All the issues may be raised in the second writ petition, as were raised in the first writ petition.