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2017 DIGILAW 1219 (GAU)

Kuovio Zhashumo v. Khrienuo Angami

2017-09-04

LANUSUNGKUM JAMIR

body2017
JUDGMENT : Lanusungkum Jamir, J. 1. Heard Mr. R. Iralu, learned senior counsel assisted by Ms. Mhabeni, learned counsel for the petitioner. Also heard Mr. P.B. Paul, learned counsel for the sole respondent. The father of the sole respondent Late Kuodio Angami lodged a complaint before the Phesama Village Council which was later transferred to the Court of ADC (J), Dimapur and was registered as C.S. No. 79/91. During the pendency of the suit the father of the respondent Late Kuodio Angami died. After a lapse of 5 years, the present respondent who is the daughter of Late Kuodio Angami made an application for substitution in C.S. No. 79/91. The said application was dismissed by the learned ADC (J) by order dated 6.8.1998. However, by the same order liberty was given to the respondent herein, to file any suit afresh. Thereafter, the respondent filed C.S. No. 3/98 for declaration of title of the suit land, cancellation of mutation/jamabandi issued in favour of the petitioner/appellants and for permanent injunction. After framing issues and adducing evidence from both the parties, the learned trial Court passed judgment dated nil August 2010 declaring title of the suit in favour of the respondent with a direction to give 2 bighas of land to the petitioners herein by the respondent at a suitable place. Being aggrieved, the petitioner had preferred an appeal against the said judgment passed by the learned trial Court in C.S. No. 3/98 before the District & Sessions Judge, Dimapur. The said appeal was registered as Civil Appeal No. 7/2010. After hearing the parties, the learned Appellate Court disposed of the appeal by the impugned judgment and order dated 14.6.2012 setting aside the judgment dated Nil August 2010 passed by the learned Civil Judge, Senior Division in C.S. No. 3/98 with a direction to conduct a denovo trial by impleading the Government as necessary party. Against the judgment and order dated 14.6.2012 passed by the Appellate Court, the present revision petition has been filed. 2. Mr. R. Iralu, learned senior counsel for the petitioner submits that after a complaint was lodged by Late kuodio Angami who was the father of the present respondent before the Phesama Village Council, the same was transferred to the Court of ADC (J) which was registered as C.S. No. 79/91. During the pendency of the suit, the father of the respondent died. During the pendency of the suit, the father of the respondent died. Thereafter, the present respondent filed a substitution petition after a lapse of 5 years which was dismissed by the ADC (J), Dimapur by order dated 6.8.1998 on the ground that the respondent had failed to justify the extremely long delay in approaching the Court for substitution. However, while dismissing the substitution petition, liberty was again given to the respondent to file any suit afresh. He, therefore, submits that C.S. No. 79/91 stood abated and therefore, the question of giving liberty to the respondent to file any suit afresh is unheard of in law and therefore, the order dated 6.8.1998 is not tenable in so far as granting liberty to file any suit afresh is concerned. However, in the instant case, the respondent had filed C.S. No. 3/98 on the same issue over the same disputed land and therefore, the learned trial Court could not have entertained C.S. No. 3/98. It is submitted that though liberty was given to file any suit afresh, the same cannot over ride the settled position of law as regard maintainability and non existence of cause of action in a fresh suit that was filed by the respondent. Therefore, when C.S. No. 3/98 was entertained and the same was disposed by judgment dated Nil August 2010, the petitioner had filed the appeal before the appellate Court which was registered as C.S. No. 7/10. It is submitted that the learned Appellate Court while disposing the C.A. No. 7/2010 had made an observation that the order dated 6.8.98 passed in C.S. No. 79/91 is of no legal consequence and non issue. The same is also totally illegal and unreasonable inasmuch as the same was made to favour the respondent. Further, the direction of denovo trial for non impleadment of necessary parties during the trial of the suit is also beyond the jurisdiction of the appellate Court. In the facts, he submits that the learned Appellate Court should have dismissed the suit for non joinder of necessary parties in view of the provisions of Order 1 Rule 9 CPC. 3. The learned senior counsel for the petitioner also submits that Order 22 Rule 9(1) provides that where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. 3. The learned senior counsel for the petitioner also submits that Order 22 Rule 9(1) provides that where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. In the present case, the substitution application was filed after a lapse of 5 years by which time the suit had already abated. Therefore, when the learned ADC (J) had rightly dismissed the substitution application by order dated 6/8/98 however, he could not have given liberty to the respondent to file a fresh suit and such order is not in consonance with Order 22 Rule 9(1) of the CPC. The learned senior counsel also submits that non joinder of parties is fatal to the suit more particularly when the plaintiff in C.S. No. 3/98 had specifically made a prayer for cancellation of mutation/jamabandi issued in favour of the defendant/petitioner in respect of land measuring 43 Bighas 4 Khatas and 18 Lessas. A consideration of the prayer would clearly indicate that the Government of Nagaland was a necessary party however, the same was not done and therefore, on that ground alone, the suit should have been dismissed. Further, the learned trial Court had erred in law inasmuch as in the judgment dated Nil, August 2010, the learned trial Court came to a finding that the limitation started from 6/8/98 whereas the limitation had started as early as 1990. The learned Appellate Court had failed to take into consideration all these factors and had come to a wrong finding. In that view of the matter he submits that the judgment and order dated 14.6.2012 passed by the Appellate Court in C.A. No. 7/2010 be set aside and quashed and also dismiss the suit in the interest of justice. The learned senior counsel also placed reliance in the case of Chupa Temsu Ao & Ors. v. Nangponger & Ors reported in (1994) 1 GLR 424 and in the case of Sh. P.C. Laldingliana & Anr v. Sh. Zoramsanga Sailo & Ors. reported in 2016(3) GLT 228. 4. Mr. P.B. Paul, learned counsel appearing for the respondent submits that the order dated 6/8/98 has not been challenged before this Court and therefore, there can be no question of dismissing the suit. After the order dated 6.8.98 was passed the respondent had filed C.S. No. 3/98. Zoramsanga Sailo & Ors. reported in 2016(3) GLT 228. 4. Mr. P.B. Paul, learned counsel appearing for the respondent submits that the order dated 6/8/98 has not been challenged before this Court and therefore, there can be no question of dismissing the suit. After the order dated 6.8.98 was passed the respondent had filed C.S. No. 3/98. The petitioner as defendants had participated in the suit without any objection and it was only after the judgment and order dated Nil August 2010 was passed in favour of the respondent that they have filed the appeal taking all grounds of abatement besides others which is not permissible in law. He also submits that the question of dismissal of C.S. 3/98 does not arise inasmuch as evidence has been laid in the said suit. He also submits that no relief has been sought against the State Government inasmuch as the State Government is only the executor and therefore, the question of dismissing the suit for non joinder of parties does not arise. The learned counsel also submits that the period of limitation starts from the last action or the last order. In that view of the matter, after the order dated 6.8.98 whereby liberty was granted to the respondent to file a fresh suit the period of limitation therefore would run w.e.f. 6.8.98. In the present case, the issue of limitation is a mixed question of law and facts and therefore, the same cannot be taken as preliminary issue and will have to be decided along with the merit of the case which has been already done. It is also submitted that there is no infirmity in the order dated 14.6.12 passed by the Appellate Court and therefore, the petitioner should be directed to participate in the denovo trial and the present revision should be dismissed. 5. I have considered the submissions forwarded by the learned counsel appearing for the parties. 6. The records of C.S. No. 3/98 has also been placed before this Court. After the death of the father of the respondent, the respondent had filed an application for substitution after a lapse of 5 years. The said application was dismissed by the order dated 6/8/98. However, liberty was given to the respondents to file any suit afresh. By the time the application for substitution was filed by the respondent, the C.S. No. 79/91 had abated. The said application was dismissed by the order dated 6/8/98. However, liberty was given to the respondents to file any suit afresh. By the time the application for substitution was filed by the respondent, the C.S. No. 79/91 had abated. Order 22 Rule 9(1) clearly provides that where a suit abate or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. Therefore, in the considered opinion of this Court, when the learned ADC(J) had dismissed the application for substitution made by the respondent no liberty could have been given to the respondents to file a fresh suit. 7. This Court has also considered the plaint file by the plaintiff/Late father of the present respondent. A specific prayer has been made for cancellation of mutation/jamabandi issued in favour of the defendant/petitioner. When such a prayer is made, it was incumbent on the part of the plaintiff to have impleaded the State Government as a necessary party. This has also not been done. In the case of Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar & Anr. reported in AIR 1963 SC 786 , it has been held that the necessary party is one without whom no order can be made effectively. A proper party is one in whose absence the effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 8. From the records, it is seen that the petitioners had approached this Court earlier by way of Civil Revision No. 9 (K) of 1999, wherein, the order dated 11.10.1998 passed by the learned Assistant to the Deputy Commissioner, Dimapur in Civil Suit No. 3/98 by which the learned trial court had directed for hearing of Civil Suit No. 3/98 on merits was questioned. This Court on consideration of the matter had come to the finding that the question of maintainability of the suit will have to be decided on the basis of evidence that the parties may lead and therefore, the said question is a mixed question of law and fact. This Court on consideration of the matter had come to the finding that the question of maintainability of the suit will have to be decided on the basis of evidence that the parties may lead and therefore, the said question is a mixed question of law and fact. Therefore, the learned trial court was directed to frame a specific issue with regard to the maintainability of the suit and thereafter decide the said issue along with other issues framed in the suit after allowing both the contesting parties to lead all such evidence as may be relevant and to advance all such contentions and arguments as may be open to the parties. The learned trial court in the opinion of this court had failed to take into consideration the directions passed by this Court in Civil Revision No. 9 (K) of 1999 while disposing of Civil Suit No. 3/98. Therefore, the submissions of the learned counsel for the respondent that the petitioners had participated in the suit without objection also holds no water. 9. For the reasons discussed herein above, this revision succeeds and accordingly the order dated 14.6.2012 passed by the District & Sessions Judge, Dimapur in C.A. No. 7/2010, the judgment and order dated Nil, August 2010 passed by the learned Civil Judge, Senior Division, Dimapur in C.S. No. 3/98 are set aside and quashed. Further, the plaintiff suit also stands dismissed. No cost.