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2017 DIGILAW 1248 (GAU)

Parashnath Prasad v. Niranjan Ghosh

2017-09-06

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. GP. Bhowmik, learned Senior counsel for the petitioner as well as Mr. G. Baishya, learned counsel appearing for the respondent. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 29.01.2016 passed by the learned Civil Judge, Kokrajhar in T.S. No. 2/2013, thereby rejecting petition No. 1065/2015 dated 19.11.2015 filed by the petitioner under Order XXIII Rule 1(3) read with Section 151 CPC for withdrawal of the suit with liberty to file a fresh suit. 2. The learned Senior counsel for the petitioner has submitted that the present suit i.e. T.S. No. 2/2013 was filed for declaration and right of easement. It is submitted that in the suit, the reliefs being right of easement, the said right was sought to be exercised in respect of the road and drain mentioned in the plaint which was under the control and management of the Gossaigaon Town Committee. However, due to inadvertence, the Gossaigaon Town Committee was not made party in the said suit. The learned Senior counsel for the petitioner projects that the plaintiff was unaware of the law in that regard and was totally depending on his engaged counsel and only recently prior to filing of the said application for withdrawal of the suit, the petitioner has come to know about defect of non-joinder of Gossaigaon Town Committee as a necessary party in the suit. It is submitted that the defect of non-joinder of necessary parties cannot be cured in any other manner and therefore, it was imperative on part of the petitioner to make a prayer to withdraw the suit and to file a fresh suit. 3. It is further submitted by the learned Senior counsel for the petitioner that the petitioner/plaintiff may not be permitted to suffer because of the incorrect advise received by him from their then engaged counsel and therefore, the petitioner had moved the trial court with a prayer to permit him to withdraw the suit and for filing a fresh one. It is submitted that the learned trial court had erred in law in refusing to allow the petitioner to withdraw the suit. It is submitted that the learned trial court had erred in law in refusing to allow the petitioner to withdraw the suit. It is further submitted that the reason assigned for refusing the said prayer was that the plaint did not contained any disclosure regarding the passage and drain being constructed or maintained by the Gossaigaon Town Committee and therefore, on this ground, the said prayer was rejected and in doing so, the learned trial court had erred in appreciating the fact that it was their own pleaded case in their petition for withdrawal of the suit that due to inadvertence the Gossaigaon Town Committee was not made a party in the suit. Therefore, it was for the said formal defect of neither making a Gossaigaon Town Committee as a party and the absence of the pleading to that regard that the road and drain was under the control of the Gossaigaon Town Committee that the suit would be dismissed, which according to the petitioner is a formal defect and the learned Senior counsel for the petitioner submits that the impugned order be set aside by permitting the petitioner to withdraw the suit and to file the fresh suit on the same subject matter. 4. The learned counsel appearing for the respondent has argued in support of the impugned order. It is submitted that as per the averments made in the plaint, the petitioner was seeking right over the land of the respondent and it was not in respect of road or the passage maintained by the Gossaigaon Town Committee. In support of his submission, the learned counsel for the respondent has relied on the case of Rabizul Ali Laskar & Ors. Vs. Saibur Raja Laskar, 2002 (2) GLT 169, wherein this Court has held that defect of a non-joinder of a necessary party is not a formal defect and if a necessary party is not impleaded in the suit, the court is required to dismiss the suit on that ground. 5. On considering the arguments advanced by the learned counsel for both sides and on perusal of the case of Rabizul Ali Laskar and Ors. (supra) cited by the learned counsel for the respondent, this Court deems it fit to quote the relevant paragraph 11, 12 and 13 of the said case. "11. 5. On considering the arguments advanced by the learned counsel for both sides and on perusal of the case of Rabizul Ali Laskar and Ors. (supra) cited by the learned counsel for the respondent, this Court deems it fit to quote the relevant paragraph 11, 12 and 13 of the said case. "11. Adverting to the provisions of law and the decisions cited by the learned counsel for the parties I find that after the amendment of the CPC in 1976, omission to implead a necessary party in a suit is fatal for the suit and touches for maintainability thereof. This amendment of 1976, as Mr. Laskar, submits is with some purpose. He further submitted that therefore, in a suit where a necessary party has not been joined, there is no scope for the plaintiff to withdraw the suit on the ground of formal defects. I am inclined, in the facts and circumstances of the case to agree with the submission of the learned counsel for the opposite party defendant. In the case reported in AIR 1957 Mad. 207 , their Lordships observed that a formal defect is a defect of form. It is noticeable that their Lordships while setting out the categories of defects as formal defects have left out "non joinder of a necessary party" as a formal defect. In case of 1997 (1) GLT 512 The Executive Director, Hindustan Paper Corporation Ltd. and others Vs. Ramvash Bind and others (supra), this Court held that non-joinder of a necessary party to a suit is not a formal defect as the same strikes at the root of the suit and therefore, in such a case provision of Order 23 Rule 1 is not be attracted. This Court in the two decisions reported in AIR 1994 Gau. 110 (Chuba Temsu Ao and others Vs. Nangponger and Ors.) (supra) held that a necessary party is one without whom no order can be made effectively and non-joinder of necessary party is fatal to the suit. It was held that if in a suit a necessary party is not added it shall have to be dismissed. This Court in a decision reported in 2000 (1) GLT 237 (Leva Ram boro and others. Vs. It was held that if in a suit a necessary party is not added it shall have to be dismissed. This Court in a decision reported in 2000 (1) GLT 237 (Leva Ram boro and others. Vs. Nabin Chandra boro) (supra) while dealing with expression "necessary party" and "appropriate party" had held that a necessary party is one without whom no order in a suit can be effectively made and a suit cannot be decreed in absence of a necessary party. This Court again in the case reported in 1997 (1) GLT 512 The Executive Director, Hindustan Paper Corporation Ltd. and others Vs. Ramvash Bind and others (supra), had held that if a necessary party is not impleaded in the suit, the court is to dismiss the suit on that ground alone as otherwise the decree passed will be a futile one. 12. On a consideration of the authorities submitted by both sides as well as the submissions made, it is overwhelmingly clear that the defect of anon-joinder of a necessary party in a suit cannot be said to be a formal defect within the meaning of the Order 23 Rule 1(3) CPC. In the present case, admittedly necessary parties have not been joined. On a perusal of the application, I am also not satisfied that any other sufficient cause has been mentioned to entertain the prayer of the petitioner/plaintiff for withdrawal of the suit with a liberty to file a fresh suit. 13. In that view of the matter, this Court is of the opinion that the impugned order does not suffer from any illegality or error of jurisdiction calling for any interference by this Court. The revision petition is without any merit and is therefore dismissed. There would be no order as to costs." 6. As this Court finds that non-joinder of a necessary party in a suit cannot be said to be formal defect as per the decision rendered in the case of Rabizul Ali Laskar and Ors. (supra), this Court is inclined to follow the same. 7. In view of above, this Court does not find any infirmity in the order passed by the learned trial court. 8. (supra), this Court is inclined to follow the same. 7. In view of above, this Court does not find any infirmity in the order passed by the learned trial court. 8. At this stage, the learned senior counsel for the petitioner submits that it may be clarified that this order may not prejudice the right of the petitioner to file any further application in the matter as the petitioner may be so advised in view of the any subsequent event that might have arisen in the meantime. 9. In this regard it is needless to say that if any right has accrued to the petitioner to move any application before the learned trial court, this order shall not be constituted as a bar for the petitioner to exercise that legal right. 10. Accordingly, this revision stands dismissed. The parties are left to bear their own cost. The parties, who are duly represented by their respective learned Counsels herein, are directed to appear before the Court of the learned Munsiff No. 4, Guwahati on 24.10.2017 without any further notice of appearance and by producing the certified copy of this order, shall seek further instructions from the said learned court.