Shanti (Smt.) and Another Vs Lakshman and Others

K.K. Lahoti, J.

This is plaintiffs appeal who succeeded in Civil Suit no. 18-A/89 before the Civil Judge Class-II, Ajaygarh on 22.7.1992 but lost in Civil Appeal no. 48-A/1992 on 3.2.1993 by Additional Judge to the Court of District Judge, Panna.

This appeal was filed on 17.3.1993 and admitted for final hearing on 30.9.1993, on the following substantial questions of law:

(i) Whether in view of the judgment and decree passed in Civil Suit No. 56-A of 1972 decided on 9.4.1975, the finding that Shanti Bai is not daughter of Maniram is perverse?

(ii) Whether judgment and findings arrived between the predecessor-in-title of the respondent and appellant no. 1 in Civil Suit No. 56-A/ 72 (Ex.P/1) will operate as res judicata?

The appellants have filed an application under Order 1 rule 10 C.P.C. (I.A. No. 182/2008) on 3.1.2008 praying for impleadment of Smt. Bitti, Mulli and Sunti as respondents in the present appeal. This application was filed on the ground that present appeal was preferred by plaintiffs Smt. Shanti and Kewaldeen, but other co-plaintiffs Smt. Bitti and Smt. Mulli, and defendant Sunti had not chosen to prefer an appeal, so they are required to be impleaded as respondents. Similarly, the State of M.P. was required to be impleaded as respondent, but due to bona fide mistake, it could not be impleaded as respondent. On these grounds, it was prayed that these four be permitted to be impleaded as respondents. In the application, it is stated that their non impleadment was due to bona fide mistake and there was no mala fide on the part of appellants for not impleading them. On 23.10.2007, at the time of hearing, this fact was pointed out and immediately thereafter this application was filed. It was prayed that aforesaid three ladies and State of M.P. be permitted to be impleaded as respondents 8 to 11 in the appeal, in the interest of justice.

The aforesaid prayer was opposed vehemently by the learned counsel for the respondents, who submitted that Mst. Bitti and Smt. Mulli, both were plaintiffs before the trial Court, as plaintiffs 3 and 4. Mst. Sunti was defendant no. 1 against whom the appellants had prayed a decree. The trial Court had granted decree in favour of plaintiff Mulli and Bitti and against defendant Sunti. Apart from this, State was also a party before the Trial Court. Against the judgment and decree passed by the trial Court, all the respondents filed a Civil appeal No. 48-A/1992 in which Mst. Bitti and Mulli and other plaintiffs were respondents. Mst. Sunti was respondent no. 5, the State was respondent no. 6 before the lower appellate Court. In the appeal, the judgment and decree of the trial Court was set aside. Against it, the appellants/plaintiffs have preferred this appeal. The judgment and decree of the trial Court was in favour of Bitti and Mulli and against Mst. Sunti. In the present appeal, there is non joinder of necessary parties and on this ground, this appeal may be dismissed. So far the State is concerned, it was a proforma/ respondent and though no relief was prayed by any party before the Court below but it was the proper party which ought to have been impleaded in this appeal. He placed reliance to the Apex Court judgment in Ram Krishna Ghosh and others Vs. Roop Chand Molla and others, (1997) 10 SCC 307 and submitted that on this ground, not only the application, the appeal itself may be dismissed.

Shri Dwivedi, learned counsel for the appellant, in reply to the aforesaid contention submitted that the plaintiffs pleaded genealogical tree in para 1 of the plaint in which it was stated that Mst. Bitti and Mulli were the daughters of late Chhakodi and their brother is Kewal Deen, who is appellant no. 2. Mst. Sunti is a daughter of Puniya. Though in the plaint, she was pleaded as daughter of Mani, but in fact Mst. Puniya was second wife of Mani and mother of Sunti. Mst. Shanti was daughter of Laltiya, second wife of Mani. Kewal Deen, who was representing the branch of Chhate was duly representing the estate of Bitti and Mulli and even if these persons were not impleaded as party in this appeal, there was no non joinder of necessary party. Similarly, Smt. Shanti is representing estate of Sunti, as both are from the branch of Mani. So there was proper representation of estate and in fact there is no non joinder of necessary party even in respect of Sunti also. He has placed reliance to a judgment of Supreme Court in case of Mohd. Hussain (dead) by LRs and Others Vs. Occhavlal and Others, and submitted that the application filed by the appellants under Order 1 rule 10 may be allowed.

So far as application under Order 1 rule 10 C.P.C. is concerned, it was filed on 3.1.2008 near about, after a period of 15 years from the date of filing of the appeal. No application u/s 5 of the Limitation Act has been filed along with the application for condonation of delay in filing this application before this Court. A prayer is made for impleading the aforesaid four parties as respondents. In these circumstances, when the aforesaid all the persons were party before the Court below, in the opinion of this Court, provision of Order 1 rule 10 C.P.C. cannot be made applicable and only recourse to Order 41 Rule 20 could be taken by the appellant:

Now the contention of the appellants may be seen whether the estate of Bitti and Mulli were duly represented by Kewal Deen and Mst. Sunti was representing the estate of Mulli and Sunti. The aforesaid principle of representing the estate is not applicable where it is a case of non-joinder of necessary party.

Another factual position in the present case is that Mst. Bitti and Mulli were co-plaintiffs and sought a specific decree against all the defendants including Mst. Sunti. They claimed 1/3rd share along with Kewal Deen in the disputed properties and also prayed for partition of the lands. The trial Court in the judgment and decree declared plaintiff no. 1 Mst. Shanti as owner of 1/3 share in the disputed property and further declared 1/3 share in the disputed properties of plaintiff no. 2, Kewal Deen, plaintiff no. 3 Bitti and plaintiff Mulli jointly. So far as defendant no. 1 Smt. Sunti is concerned, the trial Court granted decree against her of declaration and joint possession. Against the aforesaid judgment and decree though respondents 1 and 2 alone preferred an appeal and Mst. Sunti had not preferred an appeal or joined the respondents before the lower appellate Court, but Mst. Sunti was made a party as respondent no. 5 before the lower appellate Court. Under Order 41 rule 4 C.P.C. one of several defendants was entitled to obtain reversal of whole decree where it was proceeded on ground common to all. The appellate Court allowed the appeal and the entire suit of plaintiff was dismissed. Against which this appeal has been preferred. The effect of the judgment and decree passed by the Courts below are that the trial Court granted decree in favour of Mst. Bitti and Mulli and also granted decree against Mst. Sunti, the appellate Court while reversing the decree of the trial Court set aside the decree in favour of Mst. Bitti and Mulli and also set aside the decree which was against Mst. Sunti, meaning thereby the decree in favour of the plaintiffs by the trial Court was set aside in appeal and the suit of appellants and other co plaintiffs was dismissed. The suit was also dismissed of Mst. Bitti and Mulli and the decree against Mst. Sunit was set aside in the appeal.

In the light of the aforesaid facts, the judgment relied upon by the appellants may be looked into. In Moh. Hussain''s (supra), the Apex Court was considering the question of necessary parties in a suit for declaration of mortgage. In the aforesaid case, the question was that the L Rs. of mortgagee were not impleaded in the suit and in that circumstances, the Apex Court held that other heir of plaintiffs were representing the estate of non impleaded parties. In the case of mortgage, the aforesaid principle was applied, which is not applicable in the present case. So law laid down by the Apex Court in Moh. Hussain is not applicable in the facts of the present case.

The Apex Court in Ram Krishna Ghosh (Supra) considering the similar question held thus;

1. In the original suit Tarak Muchi (Ruidas) and Patasi Dasi were the only two arrayed defendants. Likewise, plaintiffs were two in number, being Subimal Krishna Ghosh and Bijoy Krishna Ghosh. The suit of the plaintiffs was decreed by the trial Court which decree was confirmed by the lower appellate Court. The High Court in second appeal reversed the same. The instant appeal is by the plaintiffs. Surprisingly, in the SLP the two defendants aforesaid have not, by neglect or design, been impleaded as parties. On the contrary, the persons impleaded have pointed out the defect and have moved Civil Miscellaneous Petition No. 3151 of 1983 for addition of respondents and for revocation of leave.

On hearing learned counsel for the parties and having gone through the records, we find that a grave error has been committed by the appellants in not impleading the original defendants as parties herein who had contested the suit. In the absence of those contesting parties before us, the appeal cannot proceed. We, therefore, not only dismiss Civil Miscellaneous Petition No. 3151 of 1983 but also the appeal as well, as no relief can be granted to the appellants in the absence of necessary parties.

The factual position in the present case is similar. Two of the plaintiffs and one defendant, who were parties before the appellate Court, have not been impleaded as appellant or respondent. In the opinion of this Court, those were necessary parties and not proper party. Mst. Bitti, Mulli and Sunti who were contesting the matter before the trial Court and before the Appellate Court were necessary parties in this appeal. Because of non impleading of these necessary parties, this appeal cannot proceed. See Ch. Surat Singh (Dead) and Others Vs. Manohar Lal and Others, . So far as the application under Order 1 rule 10 is concerned, it has been found belated and misconceived. Accordingly it is rejected, and in absence of aforesaid contesting parties in this appeal, this appeal cannot proceed and is accordingly dismissed with costs. As this appeal has been dismissed on the aforesaid question of non joinder of necessary parties, it is not necessary for this Court to decide the substantial questions of law as framed by this Court. No order as to costs.

Certified copy as per Rules.