ARUNA SARKHEL Vs. RAFIQUE AHMED KHAN

JUDGEMENT

(1.) Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellants/plaintiffs against the impugned judgment and decree passed by the first appellate Court affirming the judgment and decree of the trial court dismissing the suit.

(2.) Mr.Ashish Shrivastava learned counsel for the appellants/legal representatives of original plaintiff, would submit that both the Courts below have concurrently erred in dismissing the suit filed by the original plaintiff for setting aside the judgment and decree dated 05.03.1981 passed by 4th Civil Judge, Class ­II, Bilaspur in Civil Suit No. 76A/1978 filed by defendant No.1 and in which decree for eviction of defendant No.2 was granted as the same is not binding on original plaintiff for not impleading him as necessary party in that suit by recording a finding which is perverse and contrary to record and as such, appeal deserves to be admitted by formulating the substantial question of law.

(3.) The defendant No.1/landlord file Civil Suit No. 76A/1978 titled as Rafique Ahmed Khan v. Nitindra Nath in the court of 4th Civil Judge, Class ­II, Bilaspur in which ex parte decree of eviction was passed on 05.03.1981 against defendant No.2, against which Nitindra Nath filed an application under Order 9 Rule 13 CPC for setting aside ex parte decree, which was rejected by the trial Court on 22.02.1984 and affirmed in Miscellaneous Civil Appeal No. 15/1984 by the Miscellaneous Appellate Court on 10.12.1986, thereafter the original plaintiff along with Nitindra Nath and his two brothers jointly filed M. P. No. 79/1987 before the High Court of Madhya Pradesh challenging the order rejecting application under Order 9 Rule 13 CPC and appellate order dated 10.12.1986. The said writ petition was dismissed by the High Court of Madhya Pradesh on 04.01.1999 with liberty to raise ground that arrears of income tax of landlord was paid by the plaintiff to the Income Tax Department, thereafter miscellaneous civil case filed being MCC No. 148 of 1999 was also dismissed on 07.01.2000 with some modification. Thereafter the instant suit was filed by the original plaintiff on 07.02.2000 stating inter ­alia that he was necessary party in Civil Suit No. 76A/1978 and he being tenant in possession, the earlier suit could not have been decreed by the trial Court and therefore ex parte decree so passed in Civil Suit No. 76A/1978 deserves to be set aside. The said civil suit has been dismissed and the first appeal has also been dismissed, thereafter this second appeal has been preferred.