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2017 DIGILAW 1232 (KER)

Narayanan Nair v. Rugmini Amma

2017-09-20

K.RAMAKRISHNAN

body2017
JUDGMENT K. Ramakrishnan, J. 1. Dissatisfied 2nd defendant in O.S.No.361/86 on the file of the Munsiff Court, Wadakkanchery is the appellant herein. The suit was one filed by the 2nd respondent herein as plaintiff for declaration that the judgment in O.S.No.465/68 of the Principal Munsiff Court, Wadakkancherry has been obtained by fraud and in collusion with plaintiff in that case by the defendants and as such the decree and consequential execution proceedings and the sale of the property is to be set aside and not binding on the plaintiff or the plaint schedule property and declare that the defendants have no right over the same and for recovery of plaint schedule property with mesne profits past and future and cost of the proceedings and also for return of gold ornaments and other movables belonged to his mother from the respondents with the following allegations:- The first defendant is the plaintiff's mother's sister and 2nd defendant is her husband. There was a partition of the family properties of the mother of the plaintiff in the year 1957 and as per the partition deed, the share of the mother was allotted and she was minor at that time and she was represented by the 1st defendant as guardian in the partition deed. That property was shown as A schedule to the plaint. After partition, the mother of the plaintiff and 1st defendant were residing together and 1st defendant was looking after the affairs of the plaintiff's mother as well. Thereafter she was given in marriage and plaintiff was born on 21.05.1966. When the plaintiff was only 8 months old, his mother died due to snake bite and after death ceremonies were conducted in the presence of the 1st defendant, the 1st defendant was reluctant to look after the plaintiff and he was taken to his father's house and he was looking after by them thereafter. After the death of mother of the plaintiff, the 1st defendant was in unauthorised occupation of the plaint A schedule property and the residential house which belonged to the mother. At the time of death of his mother, her gold ornaments and other movables were kept in the house, which were shown as plaint B schedule. First defendant was taking income from the properties, it was not accounted. At the time of death of his mother, her gold ornaments and other movables were kept in the house, which were shown as plaint B schedule. First defendant was taking income from the properties, it was not accounted. So he sent a notice directing the 1st defendant to surrender possession with movables mentioned therein in the notice and also with profits. At that time she sent a reply stating that as per the partition deed, there was some liability cast on the mother to pay certain amount to one Madhavan Nair and in order to realise the amount, the said Madhavan Nair filed O.S.465/68 impleading the plaintiff, who was minor then represented by his father as guardian and suit was decreed and thereafter the property was brought to sale, in execution and the 2nd defendant as a successful bidder obtained the property in auction and it was confirmed in the name of the 2nd defendant and delivery was obtained through court and he has been in absolute enjoyment and possession of the property. These facts were known to the plaintiff only after receipt of the reply notice. The income from the plaint schedule property was sufficient to discharge the debt. The defendants willfully abstained from discharging the debt. O.S.No.465/68 was a collusive suit instituted by the creditor colluding with defendants 1 and 2. On enquiry, it was understood that the decree was obtained without impleading the legal guardian. So proceedings in O.S.No.465/68, judgment and decree obtained therein and the execution and sale proceedings were fraudulent, void and not binding on the plaintiff's right over the plaint schedule property. At the time of delivery, the house situated therein was not a dilapidated one and at any rate defendants have no right to stealthily demolish and take away the house materials. Misrepresenting that the 1st defendant was the legal guardian of the plaintiff, she was impleaded in the suit as guardian representing the plaintiff. She was not competent to act as the guardian of the plaintiff. Plaintiff's father was the natural and legal guardian. The house would fetch more than Rs.5000/-. Misrepresenting that the 1st defendant was the legal guardian of the plaintiff, she was impleaded in the suit as guardian representing the plaintiff. She was not competent to act as the guardian of the plaintiff. Plaintiff's father was the natural and legal guardian. The house would fetch more than Rs.5000/-. So the plaintiff prayed for declaration of his ownership over plaint A and B schedule properties and also to declare that the decree, judgment and sale proceedings in O.S.No.465/68 is the result of fraud committed at the instance of defendants collusively with the creditor to defeat the right of the plaintiff and as such it is not binding on him or plaint A schedule property and for declaration that the defendants have no right over the plaint A and B schedule properties and recovery of the property from defendants with past and future profits and also value of B schedule movables in the house and value of the house alleged to have been demolished and appropriated by the defendants. 2. The defendants entered appearance and filed written statement contending that the suit was not maintainable. They admitted the partition effected in the tharawad of the family of plaintiff's mother and till attaining majority plaintiff's mother was residing along with the 1st defendant and thereafter she was given in marriage and she was residing with her husband. The plaintiff's mother died from her husband's house and plaintiff was residing in his father's house along with mother at that time. After the death of the mother, the defendant had no liability to look after the plaintiff, plaintiff's mother was not having the plaint B schedule movables as alleged. She had no gold ornaments or house hold articles kept in the house. They had not appropriated the same as claimed. The defendants had not demolished the house and appropriated the materials and taking the income from A schedule property. Demands were not made to the defendants either to surrender of the property or for payment of value of movables and the house. There was no necessity to create any fraudulent documents for the defendants. When a notice had been issued, proper reply had been sent. The first defendant was never in possession of plaint A schedule property and it was in the possession and management of the mother of the plaintiff. There was no necessity to create any fraudulent documents for the defendants. When a notice had been issued, proper reply had been sent. The first defendant was never in possession of plaint A schedule property and it was in the possession and management of the mother of the plaintiff. So there was no liability for them to discharge the liability created as per the document to the creditor. The suit was instituted by the creditor against the plaintiff who was represented by his father who was his natural guardian. Since he did not contest the case, the suit was decreed ex parte and thereafter the property was put in execution and in execution, proper notice was issued to the legal guardian and thereafter it was put in auction. In the auction, 2nd defendant purchased the same and sale was confirmed in his name and he obtained delivery of the property. So he has become the absolute owner and there was no necessity for the defendants to collude with the creditor and act detrimental to the interest of the plaintiff as alleged. Plaintiff's father had timely knowledge about the proceedings and he did not take steps to conduct the case properly and so the negligence, if any, was on the part of the father of the plaintiff and the plaintiff is not competent to question the same. It is also contended that they were not in possession of the property for and on behalf of the plaintiff as claimed. They also contended that the mesne profits claimed is excessive. Further the 2nd defendant has been in possession of the property openly and uninterruptedly from the date of delivery and the plaintiff's rights, if any, over the plaint schedule property is barred by adverse possession and limitation. The plaintiff is not entitled to claim any relief in respect of movables, since it was time barred. So they prayed for dismissal of the suit. 3. On the basis of the pleadings, the following issues were framed by the trial court: 1. Whether the plaintiff is entitled to get the relief for declaration as prayed for ? 2. Whether the plaintiff is entitled to get a decree for recovery of the plaint schedule from the defendants ? 3. What is the quantum of profits derived from the plaint schedule ? Whether the plaintiff is entitled to past or future profits from the defendants ? 2. Whether the plaintiff is entitled to get a decree for recovery of the plaint schedule from the defendants ? 3. What is the quantum of profits derived from the plaint schedule ? Whether the plaintiff is entitled to past or future profits from the defendants ? If so quantum ? 4. Whether the plaintiff is entitled to get the value of B schedule movables and the house ? If so, to what extent ? Whether the defendants are answerable for the amount claimed ? 5. Reliefs and costs. 4. Pws 1 to 4 were examined on the side of the plaintiff and Exts.A1 to A9 were marked on his side. The first defendant was examined as DW1 and Exts.B1 to B4 and X1 were marked on their side. 5. After considering the evidence on record, the trial court came to the conclusion that the plaintiff, who was the defendant in the suit was properly represented by his guardian- father, but he did not contest the case. So no liability can be fastened on the defendants on that aspect. Further plaintiff's father was aware of the proceedings and the court below had relied on Ext.X1 acknowledgment which was signed by PW2, who is the father of the plaintiff and came to the conclusion that the plaintiff was not entitled to get the relief claimed and further the court below also found that the plaintiff had failed to prove the existence of the movables shown as B schedule in the house belonged to his mother, which was said to have been appropriated by the defendants and dismissed the suit. Aggrieved by the same, the plaintiff in that suit filed A.S.No.49/91 before the District Court, Thrissur which was made over to II Additional District Court, Thrissur for disposal and the II Additional District Judge by impugned judgment reversed the finding of the trial court and decreed the suit as prayed for declaration and recovery of possession of plaint A schedule property but directed the plaintiff to pay Rs.345/- to the 2nd defendant with 6% interest and on all other aspects the decree of the trial court was confirmed by the appellate court. Dissatisfied with the same, the present second appeal has been filed by the appellant/2nd defendant. 6. Dissatisfied with the same, the present second appeal has been filed by the appellant/2nd defendant. 6. When the second appeal was admitted, it appears that this Court has accepted the substantial questions of law raised in the appeal memorandum as substantial questions of law arise for consideration which read as follows. i. Is not the finding of the first appellate court that the appellant's father was not impleaded at the trial stage and was impleaded only at the execution stage perverse and ignoring the materials on record ? ii. Is not the finding of the court below that the plaintiff was not represented in the suit by his natural guardian-father perverse ? iii Is not the finding of the first appellate court that A9 decree was collusive based on no evidence ? iv. Is not the reversal of the finding of the Munsiff, that the present suit was collusive, based on no evidence ? v. Is not the finding of the 1st appellate regarding the evidenciary value of Exts.B1, B2 and X1 perverse. 7. Though a mediation was attempted from court between the parties and the counsel, it was not materialised. While arguing the case, substantial question of law regarding the maintainability of the suit itself has arisen for consideration, which has not been raised or considered by the courts below and that was suo motu raised by this Court and following additional substantial question of law was also formulated. Whether the first appellate court was justified in granting a decree in favour of the respondent by declaring that the decree in O.S.No.465/68 Principal Munsiff Court, Wadakkanchery and consequential execution proceedings and sale taken place in that execution proceedings is not valid and binding on the plaintiff without the decree holder in that suit being made a party to the suit ? That question was also heard along with other substantial questions of law formulated. 8. Since the maintainability itself has to be considered by this Court for non impleadment of the plaintiff in O.S No.465/1968, this Court thought that it can be heard along with other issues also and that can be considered first. 9. That question was also heard along with other substantial questions of law formulated. 8. Since the maintainability itself has to be considered by this Court for non impleadment of the plaintiff in O.S No.465/1968, this Court thought that it can be heard along with other issues also and that can be considered first. 9. The learned counsel for the appellant argued that the evidence adduced on the side of the appellant will go show that the suit was properly instituted and proper guardian was appointed but the natural guardian-father who was aware of the proceedings did not contest the case properly. So that no liability can be fastened on the 1st respondent for not properly conducting the case. She also argued that without impleading the decree holder the suit is not maintainable, though such a plea was not taken in the court below as well as in the 1st appellate court, that can be raised in this court as it is purely a question of law. Further the learned counsel also argued that the amount granted by the court below is meagre considering the value of the money and even if it is found that the decree has to be set aside and the sale will have to be set side and recovery has to be granted, the 1st appellate court ought to have granted a reasonable amount as compensation which has not been done in this case, as 2nd defendant cannot be said to be a party to the fraud or collusion as alleged. 10. On the other hand, counsel for the respondent submitted that at this stage this court cannot remand the case for impleading the necessary party in view of the bar under Section 99 of the Code of Civil Procedure and Order 1 Rule 9 and Order 1 Rule 13 of Code of Civil Procedure. Further he had also argued that the decree holder in O.S. No.465/68 is not an affected party as the money payable has been released by the sale of the property and there was no necessity to implead him as the property is now in the possession of the 2nd defendant and he is the only party to be impleaded. If at all he may be a proper party, non impleadment of that party is not going affect the merits of the case. If at all he may be a proper party, non impleadment of that party is not going affect the merits of the case. So according to him, there is no necessity to implead him. He had also argued that if at all this Court feels that he will have to be impleaded, notice can be issued from this Court or an opportunity may be given to the appellant to take steps in this Court to avoid delay. He had also supported the findings of the 1st appellate court on the basis of the evidence available and also argued that there was proper representation. In the suit it will be seen from the records that the minor was represented 1st respondent as guardian and not the natural guardian-father, though they were aware that he was residing with his father at that time. Further the evidence of PW2 is not sufficient to come to the conclusion that he was aware of the proceedings and according to the learned counsel, the 1st appellate court has properly appreciated the legal aspects and rightly decreed the suit in favour of the plaintiff and findings do not call for any interference. 11. Since this Court felt that the maintainability of the suit itself is under doubt, this point was taken first and if that point is answered against the plaintiff, then this Court need not go into the findings of other aspects. Further as regards the movables are concerned, both the courts below have concurrently found that plaintiff has failed to prove that any of the movables belonged to his mother were with the 1st respondent and it was appropriated by her and rightly declined to grant a decree in respect of plaint B schedule movables and that was not been challenged by the plaintiff either by filing a cross objection or filing a independent appeal. So finding in that regard has become final and this Court feels that it need not be reopened, even if this Court found that the suit is defective and will have to be remanded for the purpose of fresh trial regarding the main issue. 12. So finding in that regard has become final and this Court feels that it need not be reopened, even if this Court found that the suit is defective and will have to be remanded for the purpose of fresh trial regarding the main issue. 12. The case of the plaintiff in the plaint was that O.S.No.465/68 of the Principal Munsiff Court, Wadakkancherry was filed by one Madhavan Nair to whom certain amount was due as per the partition deed entered into between the family members of his mother's family and certain amount was due to said Madhavan Nair from his mother towards the equalisation of share and for realisation of that amount, the suit has been filed by said Madhavan Nair by impleading the minor plaintiff as defendant as his mother was no more at that time by showing the 1st defendant as his legal guardian. Further he had a case that after the death of the mother, the property was being managed by the 1st defendant. Further there was collusion between the defendants and the plaintiff in O.S. No.465/68 in filing the suit and getting a decree and putting it same for execution and recovery of the amount and sale of the property and getting the property in the name of the 2nd defendant, who is none other than the husband of the 1st defendant. So virtually the prayer of the suit was to declare the decree and judgment in O.S.No.465/68 obtained by Madhavan Nair against the plaintiff is a decree obtained fraudulently in collusion with the 1st defendant who has been shown as the guardian of the minor and it was also brought in execution and sold for a meagre amount in collusion with the defendants. So the main allegation was that the decree holder in O.S. No.465/68 along with the defendants fraudulently obtained a decree against the plaintiff to the detriment of his interest and as such it is not valid and binding on him or the property. The suit was filed under Section 34 of the Specific Relief Act for declaration of the right of the plaintiff in the property and with consequential reliefs. 13. When a decree obtained by a party is to be declared as null and void, the real affected person is the decree holder in that case and without whom no effective decree ought to have been granted by the trial court. 13. When a decree obtained by a party is to be declared as null and void, the real affected person is the decree holder in that case and without whom no effective decree ought to have been granted by the trial court. Admittedly, the said Madhavan Nair was not made a party in this proceedings and even without whom on party array, the trial court dismissed the suit, but the 1st appellate court had reversed the finding and come to the conclusion that the decree and judgment was obtained by collusion and fraud effected by the decree holder as well as the defendants and so the decree and judgment obtained is null and void and not binding on the plaintiff and consequentially decreed the suit and granted a decree for recovery of possession of the property from the 2nd defendant/appellant herein. So the Madhavan Nair, who is the decree holder in O.S.No.465/68 is a necessary party and he cannot be said to be only a proper party as he alone can defend the decree as to whether the suit had been properly instituted and plaintiff's interest had been properly protected in accordance with law etc. Further certain allegations have been made in the plaint against the decree holder in that suit which also can be answered only by him. So without him on party array, the suit filed can only said to be defective. 14. The counsel for the respondents submitted that since the decree has been satisfied and there is no prejudice caused to the decree holder, there is no necessity to go into that question at present. But if the decree is set aside, there is possibility of consequences flow from that decree, which will indirectly affect the right of the decree holder in that case. In fact decree was satisfied by the sale of the property in the execution of decree in O.S.No.465/68 and the property was purchased by the 2nd defendant in auction and that money was paid for the purpose of discharging the decree debt. So under such circumstances, if the decree is set aside, then entire things flow from the decree will become non est in the eyes of law and as such it cannot be said that a decree passed without hearing the decree holder is proper and in accordance with law. So under such circumstances, if the decree is set aside, then entire things flow from the decree will become non est in the eyes of law and as such it cannot be said that a decree passed without hearing the decree holder is proper and in accordance with law. This will give a right action for the appellant to proceed against the decree holder in O.S. No.465/68 for compensation. 15. Regarding additional question of law raised by this Court, this Court has appointed Advocate Sri.K.S.Hariharaputhran as amicus curiae to help this Court, and he argued that this court has got power to direct the plaintiff to implead necessary parties, even if such a contention has not been raised by the defendants at any stage invoking Order 1 Rule 10 of Code of Civil Procedure. 16. Section 99 of the Code of Civil Procedure reads as follows:- 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 non joinder 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. 17. Order 1 Rule 9 of the Code of Civil Procedure reads as follows: 9. Mis-joinder and non-joinder - No suit shall be defeated by reason of the misjoinder 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. 18. Order 1 Rule 13 of the Code of Civil Procedure reads as follows: 13. Objections as to non-joinder or mis-joinder - All objections on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. 19. 19. It is true regarding non-joinder or mis-joinder of parties, it must be raised at the earliest possible time and if that right is waived by the defendants, that cannot be agitated later by them. Further, it is also seen from Section 99 of the Code of Civil Procedure that no decree or judgment of the court can be reversed or can be remanded on the ground of any irregularity in the proceedings on account of mis-joinder or non-joinder of parties or cause of action or any error, defect or irregularity in the proceedings in the suit, not affecting the merits of the case or jurisdiction of the court. But the proviso to Section 99 says that nothing in the section shall apply to non-joinder of necessary parties. So it is clear from this that the bar under Section 99 will not affect regarding the question of non-joinder of necessary party and that being a question of law going to the root of the matter that can be considered by the court even if it is not raised by the other party as it cannot be said to be a waiver and that waiver will not affect the right of the person who is really affected by the decree to be passed. 20. This aspect has been considered in the decision reported in Manduri Raghava Rao and others v. Nadella Radha Krishna Murthy and another 1989 (3) A.L.T 703, where it has been held that, Waiver under order 1 rule 13 is not applicable in the case of non-joinder of necessary parties. Objection as to waiver applies only when proper parties are not added to suit and not necessary parties. In the latter case, suit itself is defective. It is further observed in the same decision that necessary party is one without whom no effective decree can be passed. Proper party is one whose presence enables the court to adjudicate the suit issues more effectively. So in the case of non-joinder of necessary party, the court should not have passed decree itself. 21. Further in the decision reported in Shanmugam and others v. Saraswathy and others, AIR 1997 Madras 226 it has been held that, In a suit for partition the question of non-joinder of necessary parties in partition suit can be raised at any time as it goes to the root of the matter. 22. 21. Further in the decision reported in Shanmugam and others v. Saraswathy and others, AIR 1997 Madras 226 it has been held that, In a suit for partition the question of non-joinder of necessary parties in partition suit can be raised at any time as it goes to the root of the matter. 22. Further in the decision reported in Radhe Shyam and others v. Firm Gopal Rai - Phool Chand, AIR 1937 Allahabad 374, it has been held that, When the minor was represented by a guardian ad litem whose interest is adverse to that of the minor, then the right of the minor is prejudiced and the decree obtained against him is void as against him. 23. Further in the decision reported in Amirchand Nagindas & Co. and Others v. Raoji Bhai Moti Bhai Patel and others, AIR 1930 Mad.714 it has been held that, Section 99 does not prevent the appellate court from interfering on the ground of mis-joinder or non-joinder, which affects the jurisdiction of the trial court. In that case it was found that the suit was not maintainable for non impleadment of all partners who are necessary parties in a suit for accounting and found that without impleading all the partners, the same cannot be proceeded with. The court has considered the impact of Order 1 Rule 9 and also Order 1 Rule 13 and Section 99 and then found that when a suit is bad for non-joinder of necessary parties, then the bar under Section 99 is not applicable and court has power to direct the necessary party to be impleaded. 24. In the decision reported in Ramakrishna Ganapayya Hegde v. Lakshminarayana Timmayya Hegde, AIR 1984 Karnataka 45, it has been held, When a suit was filed by the plaintiff for declaration that official act is malafide and illegal and for injunction restraining the defendant from interfering with plaintiff's possession without impleading the officer in the official capacity who passed the order is a necessary party and without impleading him, the suit is not proper and such question can be raised even at the second appellate stage. 25. 25. Further in the decision reported in U.P.Awas Evam Vikas Parishad v. Gyan Devi (dead) by LRs and Others the (1995 (2) SCC 326 it has been held that, In a case where the land was acquired for the purpose of local authority, local authority is a necessary party and without impleading them any award passed is not proper and the award was set aside and the matter has been remitted to the court below for impleading the local authority and for giving an opportunity to the local authority to meet the case. 26. So from these decisions it is clear that bar under Section 99 of Code of Civil Procedure is not applicable in the case of non-joinder of necessary parties. 27. Then the question is whether the decree holder in O.S.No.465/68 is a necessary party or he is only a proper party. But it will be seen from the allegations of the plaint itself that the main prayer was to set aside the decree in O.S.No.465/68 and consequential execution of the proceedings and the sale conducted. So the real affected party is the plaintiff in that case and the decree cannot be passed declaring the decree obtained in that case as null and void and not binding on the plaintiff behind the back of the decree holder in that case. Whether it is likely to prejudice him or is not a matter to be considered by this Court, but the question is whether a decree could have been passed of such nature by the court without impleading the necessary party whose interest is likely to be affected by passing a decree without giving a opportunity to him to meet the case raised by the plaintiff namely collusion and fraud in filing the suit and getting the decree executed. Section 34 being a discretionary relief, the courts below ought to have considered this fact as to who is a real affected party on account of setting aside the decree passed against the minor and the decree holder in that suit is the real affected party and without he being on party array, it cannot be said that an effective decree can be granted in favour of the plaintiff against whom a decree has been obtained by that decree holder. He is the best person to speak about the allegations in the plaint and also defend the decree obtained against the minor which opportunity has been lost to him. The consequences of declaring the decree as null and void will give a right of action for the 2nd defendant also to proceed against the decree holder for other consequences flowing from setting aside the decree, which has to be met by that decree holder, though the decree is not binding on him, he will have to face unnecessary litigation. So in fact he is the real aggrieved person and he is a necessary party to the proceedings and without him on party array, no decree for declaration as sought for should have been passed by the courts below and that goes to the root of the jurisdiction of the court which granted the decree as well. So under such circumstances, when a patent illegality has been committed by the courts below and the question as to whether such a decree is maintainable without the necessary party on party array, it is a pure substantial question of law arises for consideration, which can be suo motu raised by this court even if such a plea has not been raised by the defendants in the court below. If this Court feels that he is a necessary party, then the decree and judgment passed by the court below has to be set aside and the matter has been remitted to the court below for giving an opportunity for the plaintiff to implead the decree holder in O.S.No.465/68 and then dispose of the case in accordance with law. 28. The counsel for the respondents submitted that this Court has got power to issue notice to the party in the second appeal itself. This Court do not dispute that proposition but when a notice has been issued from this Court, this Court cannot give an opportunity for him to defend the case by adducing evidence, for that purpose the case will have to be remitted. The second appellate court High Court cannot take the role of a trial court. So when a patent illegality has been noted by this Court, then that will have to be set at right. 29. The second appellate court High Court cannot take the role of a trial court. So when a patent illegality has been noted by this Court, then that will have to be set at right. 29. He had relied on the decision reported in (AIR 1961 SCC 1277 Devidas and others v. Shri Shailappa and Others for the proposition that if necessary, the appellate court itself can issue notice if the concerned party is in any way affected. So this Court is not agreeable for that proposition for adopting that procedure at this stage in this case as the trial itself is vitiated on account of that necessary party being not on party array. He must be given an opportunity to defend the case and also to adduce evidence which cannot be done in the second appellate court. 30. It is settled law that no suit can be dismissed for non- joinder of necessary parties or proper parties, if no opportunity was given to the plaintiff to implead him in the trial court. Since this Court on evaluation of the entire facts and circumstances of the case found that the plaintiff in O.S.No.465/68 of Principal Munsiff Court, Wadakkancherry which decree is sought to be set aside or declared to be null and void and not binding on the plaintiff is necessary party to the proceeding and without impleading him, the suit itself is defective and no effective decree could not have been granted, this Court when exercised that power to direct the plaintiff to implead him, an opportunity must be given to the plaintiff to implead him and opportunity must be given to that party to contest the case as well. Since this Court found that without the plaintiff in O.S.No.465/68 who is a necessary party not on party array, the decree and judgment passed by the 1st appellate court itself is not valid and sustainable, then this Court need not go into the other aspects as to whether 1st appellate court was justified in reversing the decree and judgment passed by the trial court and granting a decree in favour of the 1st respondent. In view of the discussions made above, the appeal has to be allowed and the matter has to be remitted to the trial court for fresh disposal in accordance with law, after giving an opportunity to the plaintiff to implead the necessary party namely, the plaintiff in O.S.No.465/68 and proceed with the case. Since this Court found that the suit itself is defective for non impleadment of the plaintiff in O.S.No.465/68 and the matter has to be remanded for fresh disposal after impleading him by the plaintiff, this Court feels that it is not necessary to consider the other questions of law raised as the entire matter has to be reagitated afresh after the appearance of the plaintiff in O.S.No.465/68 and fresh finding has to be arrived at after consideration of further evidence if any adduced by the parties. 31. In the result, the additional question of law raised is answered accordingly and the second appeal is allowed, the decree and judgment passed by the 1st appellate court is set aside and the matter is remitted to the court below for fresh disposal in accordance with law. The trial court is directed to give an opportunity to the plaintiff to implead the plaintiff in O.S.No.465/68 of Principal Munsiff Court, Wadakkancherry and after procuring his presence and giving opportunity to both parties to adduce further evidence, if any required, then dispose of the case afresh in accordance with law. Considering the circumstances of case, the parties are directed to bear their respective cost in the appeal. The parties are directed to appear before the Munsiff Court, Wadakkancherry on 06.11.2017. Registry is directed to communicate this judgment to the court below and also send back the records to the court below at the earliest.