P GURAPPA SETTY Vs. BAGULAMANE MARAPPA

JUDGEMENT

(1.) I have heard the learned advocates in this civil revision petition. The petitioner's learned Advocate has advanced a two-fold submission, the first being on a point of law whereby she submits that the approach of the trial court is erroneous and secondly this is a case which will have to be governed by the provisions of Section 43 of the Contract Act. Learned Advocate submits that when the cloth was purchased, that there was a implied contract between the parties and that therefore, they would be relegated to the position of joint promissors. In these circumstances, she submits that the option for suing any one of them for enforcement of the obligation is permissible under law and the learned Advocate supports her submission by referring to the further facts from the record which illustrate that the present respondent was the person who came along with two others and that he was the person who made a part payment and that he was also one of the three who signed in the register. Learned Advocate submits that in these circumstances it was incorrect for the learned trial judge to have upheld the. objection that the remaining two persons who accompanied the defendant when the purchase took place were necessary parties and more so, that the dismissal of the suit on this ground is bad in law.

(2.) THIS argument is countered by the respondent's learned Advocate who submits that the plaintiff was not taken by surprise in so far as the defence specifically pleaded was that the suit was bad for non-joinder of necessary parties. He also points out that it would have been permissible when this was specifically pleaded by the defence for the plaintiff to have taken corrective action, but this not having been done, that the trial court was fully justified in dismissing the suit.

(3.) THE dismissal of a suit on the ground of non-joinder of necessary parties would normally appear to be highly technical and the petitioner's learned Advocate re-enforces her submissions by stating that this is virtually a defenceless proceeding because the respondent neither cross-examined the plaintiff nor took any part in the proceedings and that under these circumstances, the facts being uncontroverted that a decree should have followed as a matter of course. The submission is that merely on the ground of this technicality, the dismissal would be tantamount to manifest injustice to the petitioner-plaintiff. I do concede that courts must by and large avoid situations where proceedings may fail on technicalities because the concept of doing real Justice would necessarily require a complete adjudication on merits but situations may arise where proceedings when presented are so inherently defective that a court is left with no option except to dismiss the proceedings. A classic situation would be where a plaint is presented beyond the period of limitation and this fact comes to the notice of the court at a subsequent point of time even though it had not been pointed out by the office or the opposite party, and where it turns out that the courts have no jurisdiction or where the plaint itself does not make out any cause of action due to defective pleadings and the like in which case, a court is left with no option except to dismiss the suit because it is impossible to pass a decree even if the matter were to be undefended. It is in this background that one needs to take cognizance of the fact that in the present proceeding the record unmistakably indicates that it was the plaintiffs own case that the three persons had come for the purchase of the cloth and that three of them had signed in the register in acknowledgment subsequently. The practical difficulty in the way of the trial court arose because in this background, it could not have been legally correct for the trial court to have apportioned the liability and passed a decree against the present defendant for 1/3rd amount nor could the court have passed a decree against him in respect of liability that devolves on the other two persons who were not made parties to the proceeding. Either way therefore, the decision of the learned trial judge is liable to be upheld.