Order : (Rakesh Mohan Pandey, J.) 1. The plaintiffs/petitioners/appellants before the learned Court below have filed this petition challenging the order dated 28.08.2019 passed in Civil Appeal No. 60A/2018 by the First Additional District Judge, Balodabazar, whereby an application moved under Order 1 Rule 10 of CPC was rejected and in the application moved under Order 22 Rule 4 of CPC, time was granted to the petitioners to explain reasons for the inordinate delay. 2. The facts of the present case are that the plaintiffs filed a Civil Suit for declaration of title, permanent injunction and further declaration that the sale-deed dated 16.01.1963 is null and void. The Civil Suit was filed on 29.04.2014. The sale-deed was executed in favour of Anand Masiha and Smt. Anand Kumari, but only Smt. Anand Kumari was impleaded as a defendant. Anand Masiha died in 2008, but his legal heirs were not impleaded as the defendants in that suit. The Civil Suit was dismissed vide judgment and decree dated 17.07.2018. 3. The plaintiffs preferred a regular appeal before the learned First Appellate Court and a summons was issued to the respondents/defendants. As per the report received from the office of the First Appellate Court, respondent No. 3/defendant No. 3 died on 09.10.2017 prior to the judgment and decree of the learned trial Court. An application under Order 22 Rule 4 of CPC was moved by the petitioners to implead his legal heirs on 18.04.2019. The defendants/respondents filed their reply to those applications and the learned First Appellate Court granted time to the petitioners to explain the reasons for the inordinate delay. 4. Mr. Hemant Gupta, counsel appearing for the petitioners would submit that the sale-deed dated 16.01.1963 was executed in favour of Smt. Anand Kumari and was the defendant in the Civil Suit filed before the learned trial Court. He would further submit that as the Late Anand Masiha was not a party to the sale-deed; there was no need to bring his legal representatives on record. He would also submit that during the pendency of the present petition, Smt. Anand Kumari died and his legal representatives have been brought on record. It is contended that the learned trial Court without appreciating this fact dismissed the suit on the grounds that there was a non-joinder of parties. He would also submit that during the pendency of the present petition, Smt. Anand Kumari died and his legal representatives have been brought on record. It is contended that the learned trial Court without appreciating this fact dismissed the suit on the grounds that there was a non-joinder of parties. It is further contended that the application moved under Order 22 Rule 4 of CPC with regard to the death of Darthi/respondent No. 3 is still pending consideration before the learned First Appellate Court and the learned Court below has sought explanation with regard to the delay. 5. On the other hand, Mr. Manoj Paranjpe, counsel appearing for respondents No. 3A and 3B would oppose the submissions made by Mr. Gupta. He would submit that the sale-deed was executed in favour of Anand Masiha and Smt. Anand Kumari. He would further submit that according to para 1 of the plaint, the suit property was entered into the names of Anand Masiha and Smt. Anand Kumari; therefore, both were necessary parties. He would also submit that only Smt. Anand Kumari arrayed as defendant No. 1 in the suit, but legal representatives of Anand Masiha were not impleaded as the defendants, who died in the year 2008 prior to the filing of the Civil Suit. It is further contended that in the written statement, a specific objection was raised by the defendants and an issue was also framed in this regard. It is further contended that one of the grounds for the dismissal of the suit was non-joinder of parties. It is stated that the lacuna which was one of the grounds for the dismissal of the suit of the plaintiffs cannot be rectified at the appellate stage. In support thereof, he placed reliance on the judgment passed by the High Court of Andhra Pradesh in the matter of Jahangirji (died) by Lrs. And others vs. K. Kumar reported in 2011 SCC OnLine AP 744 : (2012) 2 ALD 406 and Karipalli Christy Caroline and Others vs. Karipalli Shepard Kinghs burgh (died) and Others reported in 2024 SCC OnLine AP 262 . He would state that the application moved under Order 22 Rule 4 of CPC is still pending consideration before the learned First Appellate Court and the petitioners have been provided time to explain the reasons for the delay. 6. Mr. He would state that the application moved under Order 22 Rule 4 of CPC is still pending consideration before the learned First Appellate Court and the petitioners have been provided time to explain the reasons for the delay. 6. Mr. Vedant Shadangi, Panel Lawyer appearing for the State would support the order passed by the learned Court below. 7. I have heard learned counsel appearing for the parties and perused the documents placed on record. 8. A perusal of para 2 of the plaint would show that the suit property was recorded in the name of Smt. Anand Kumari, W/o Anand Masiha. The plaintiffs have not stated reasons for not impleading Anand Masiha or his legal representatives as the defendants in the plaint. 9. A perusal of the order impugned would show that one of the grounds for the dismissal of the Civil Suit was non-joinder of parties as legal heirs of Late Anand Masiha were not impleaded as the defendants whereas they were necessary parties. 10. The plaintiffs moved an application under Order 1 Rule 10 of CPC to implead legal representatives of Late Anand Masiha at the appellate stage and that application was rejected by the learned First Appellate Court on the grounds that the plaintiffs cannot be permitted to rectify the mistake of non-joinder of parties. 11. The High Court of Andhra Pradesh in the matter of Jahangirji (supra) while dealing with a similar issue in para 27, 28, 29, 30 and 32 held as under:- “27. In Naba Kumar Hazra v. Radhashyam Mahish, AIR 1931 PC 229 , also, the issue was raised and decided by the Trial Judge and an appeal was preferred claiming the co- mortgagors to be not necessary parties. The High Court did not refer to the question and a request was made before the Privy Council for an opportunity of joining the co-mortgagor, which was negatived. The defect was noted to have been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it, which he did not avail. 28. In Chenthiperumal Pillai Chanthanamuthu Pillal v. DM. Devasahayam, AIR 1956 Trav. The defect was noted to have been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it, which he did not avail. 28. In Chenthiperumal Pillai Chanthanamuthu Pillal v. DM. Devasahayam, AIR 1956 Trav. Cochin 181 , a Full Bench held that when an objection to the maintainability of the suit on account of the failure to implead a necessary party was expressly taken in the written statement and was the subject of a preliminary issue, the plaintiff persisting in the suit without joining the necessary parties cannot be allowed to remedying the defect in the appeal and the suit has to be dismissed. Of course, that was a case where the plaintiff expressly stated that he cannot be compelled to implead the necessary party and that he is prepared to take the risk of the proceeding with the suit without that party. However, the principle remains that if in spite of an objection raised at proper time, the plaintiff persists in the suit without joining the necessary parties, the suit has to be dismissed and the defect cannot be allowed to be remedied in appeal. 29. In Kanakarathanammal v. V.S. Loganatha Mudaliar, AIR 1965 SC 271 , a Five Judge Bench of the Supreme Court held that notwithstanding Order 1 Rule 9 of the Code of Civil Procedure, if the parties not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. The Supreme Court also held that when a specific plea was taken in the trial Court and a clear and specific issue was framed, the party might have applied to add necessary parties, while the suit was being tried. If the party persisted in proceeding with the suit, it will be too late to allow to rectify the mistake before the Supreme Court. The Apex Court followed Naba Kumar Hazra v. Radhashyam Mahish (supra). 30 . If the party persisted in proceeding with the suit, it will be too late to allow to rectify the mistake before the Supreme Court. The Apex Court followed Naba Kumar Hazra v. Radhashyam Mahish (supra). 30 . In K. Bhaskar Rao v. K.A. Rama Rao, 2010 (5) ADD 339 , a learned Judge of this Court was dealing with a suit for partition wherein the defendant in the written statement raised the plea of non-joinder of the two sisters of the parties for which the plaintiff stated in his rejoinder that as they were already married and were given sufficient share in the form of cash and articles, they were not necessary parties. The plaintiff came up with an application to implead the sisters as parties in the first appeal and the learned Judge rejected the request holding that the defect of non-joinder of necessary parties being fatal, the same cannot be cured by impleading them in the appeal and upheld the dismissal of the suit on the ground of non-joinder of necessary parties by the trial Court. The decisions reported in Naba Kumar Hazra v. Radhashyam Mahish (supra), Chenthiperumal Pillai Chanthanamuthu Pillai D.M. Devasahayam (supra) and Kanakarathanammal v. V.S. Loganatha Mudaliar (supra), were relied upon before the learned Judge in support of the proposition that non- joinder of sisters is a fatal defect and the suit for partition is liable to be dismissed even on that ground alone. 32. The question formulated by the learned Judge while admitting the second appeals cannot brushed aside as not a substantial question of law notwithstanding any lack of clarity in the formulation of the question as contended by the learned Counsel for the plaintiff. The purport of the question framed is clear about the legal consequences of impleading the two daughters of the defendants 1 and 7 only in the first appeal as legal representatives of the mother and such impleadment curing any defect in the institution of the suit itself. The two daughters of defendants 1 and 7 were claimed to have not been impleaded originally due to their being married prior to 1985 and the suit claiming the properties to be joint family properties. The two daughters of defendants 1 and 7 were claimed to have not been impleaded originally due to their being married prior to 1985 and the suit claiming the properties to be joint family properties. However, their non-joinder after the death of the 1st defendant is inexcusable as the widow, sons and daughters would have been entitled to equal shares in the share of the defendant if the properties were joint family properties or in the entire properties, if the properties were self-acquired properties of the 1st defendant. In the event of acceptance of either the case of the plaintiff or the case of the defendants, the daughters undoubtedly became necessary parties on the death of the 1st defendant in view of non- admission of Exs. B8 and B9-Wills by the plaintiff in addition to his contention about the nature of properties being joint family properties. Much emphasis is attempted to be laid on the use of the word "mis- joinder of parties" in the written statement and in the issue framed by the trial Court, while the intent and purport is patent and clear that it was about the non-joinder of proper and necessary parties. While there was no conflict between the latest decision of the learned Single Judge and the earlier Division Bench of this Court, the conclusion on the admitted facts should be in favour of the appellants in SA No. 888 of 2004. Under the above circumstances, impleading the respondents B and 9 in the first appeal will not cure the defect in the constitution of the suit at the time of its institution or at least since the death of the 1st defendant. The decision in K. Bhaskar Rao v. K.A. Rama Rao (supra), following the decisions of the Privy Council and the Supreme Court apart from the decision of a Full Bench of Travancore Cochin is binding and the defect of non-joinder of necessary parties cannot be cured by impleading them in the appeal and is fatal to the suit for partition. Therefore, the substantial question of law formulated at the time of admission of the second appeals is answered that impleading the two daughters of defendants 1 and 7 as the legal representatives of the 7th defendant, the mother, in the first appeal will not cure the fatal defect in the suit. Therefore, the substantial question of law formulated at the time of admission of the second appeals is answered that impleading the two daughters of defendants 1 and 7 as the legal representatives of the 7th defendant, the mother, in the first appeal will not cure the fatal defect in the suit. In the result, SA No. 888 of 2004 has to be allowed. In the circumstances of the case, both the parties can be directed to bear their own costs in both the second appeals.” 12. The High Court of Andhra Pradesh in the matter of Karipalli Christy Caroline (supra), again relied upon Jahangirji (supra) and reiterated the same. 13. Taking into consideration the facts discussed-above and the law laid down by the High Court of Andhra Pradesh, in the opinion of this Court, the mistake committed by the plaintiffs before the learned trial Court cannot be permitted to be rectified at the appellate stage; particularly, when one of the grounds of the dismissal of the suit was non-joinder of parties; therefore, the learned First Appellate Court rightly rejected the application moved by the plaintiffs under Order 1 Rule 10 of CPC. 14. With regard to the application moved under Order 22 Rule 4 of CPC, the order impugned would show that the learned Court below has sought an explanation with regard to the delay. The petitioners would be at liberty to submit the explanation before the learned Court below pursuant to the order dated 28.08.2019. 15. The interim order granted earlier is hereby vacated. 16. The appeal has been pending before the learned First Appellate Court since 2018; therefore, the concerned Court is directed to make all endeavours to conclude the proceedings of the pending appeal expeditiously. 17. With the aforesaid observation(s), and direction(s), the instant petition is hereby disposed of.