PE RAMASAMY THEVAR Vs. PERUMAL THEVAR

JUDGEMENT

(1.) THE respondents are the plaintiffs in the trial court. THEy instituted O. S. No. 464 of 1977 of the file of the District Munsif of peri-yakulam for a declaration that the respondents 1 to 7 are entitled to suit items 1 to 7 respectively and that the 8th respondent has right in suit item no. 8 on the basis of an Othi and for consequential permanent injunction. Respondents 1 to 5 claimed title relying on the settlement deeds Exs. A-10, a-13, A-1, A-6 and A-3 respectively dated 25. 5. 1967 executed by the appellant/defendant. THE 6th and 7th respondents based their claims on Ex. A-15, dated 5. 7. 1971 and Ex. A-19, dated 25. 11. 1967 the sale agreements respectively executed by the appellant. THE 8th respondent as P. W. 8 deposed that he was in possession of the 8th item as per an oral Othi entered into between himself and the appellant. THE trial court though found title in favour of respondents 1 to 5 took the view that possession did not remain with them in respect of the respective suit items on the date of suit. It also found that respondents 6,7 and 8 had no right in respect of items 6 to 8 and these respondents failed to prove that they were in possession on the date of suit. While the judgment was delivered on 7. 11. 1979, on the previous day 6. 11. 1979 two additional issues were framed suo moto on misjoinder of parties and maintainability of the suit. THE parties were not put on notice regarding framing of the Additional issues and argument was also not heard on this aspect. After discussion the trial court took the view that there was misjoinder of parties and the suit as framed was not maintainable in law. Accordingly it dismissed the suit with costs.

(2.) THE present respondents/plaintiffs took up the matter in appeal before the Principal Sub-Judge, Dindigul, in A. S. No. 160 of 1979 on his file. THE lower appellate court held that it had no reason to differ from the findings of the learned District Munsif, the plaintiffs 6 to 8 have not established their possession of items 6 to 8 of the suit properties. THE findings of the learned District Munsif, regarding title to suit items 1 to 5 in favour of present respondents 1 to 5 were not challenged before the lower appellate court and they were upheld. THE lower appellate court however, took the view that respondents 1 to5 were in enjoyment of suit items 1 to 5 on the date of plaint. Accordingly it reversed the judgment and decree of the trial court on this aspect and decreed the suit in favour of present respondents 1 to 5 granting declaration and injunction in respect of the said items. It dismissed the appeal by present respondents 6 to 8 in respect of suit items 6 to 8. THE learned Principal Sub Judge also held that the respondents/plaintiffs are entitled to file a single suit against the appellant and that even assuming that there were misjoinder of parties, the decree could not be reversed or substantially waried in appeal under Sec. 99 of the Code of Civil Procedure. While this second appeal has been preferred by the defendant in the suit against the said findings, the plaintiffs have come forward with cross objection against the non-suiting of plaintiffs 6 to 8.

(3.) HOWEVER, as it has been rightly contended by the learned counsel for the respondents, there are no averments in the written statement regarding the misjoinder of parties and cause of action. When the issues were settled on 6. 7. 1978, no issue was framed on misjoinder of parties. But on 6. 11. 1979 the trial court framed an additional issue on misjoinder of parties and the judgment was pronounced on 7. 11. 1979. After arguments were over, the additional issues were framed suo moto by the trial court. The respondents/plaintiffs were not put on notice of the framing of these issues. The judgment of the trial court does not indicate that any arguments were advanced by the parties on this aspect. O. 1, Rule 1, C. P. C. reads that "all persons maybe joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons brought separate suits, any common question of law or fact would arise". But under O. 1, Rule 9, C. P. C. , "no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: Provided that nothing in this rule shall apply to non-joinder, of a necessary party". Under 0. 1, Rule 13, C. P. C. , "all objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issue are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived". Under 0. 2, Rule 7, C. P. C. "all objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived". A reading of the above said provisions would make it clear that in the absence of any plea in the written statement on the misjoinder of parties and misjoinder of cause of action, the trial court was not within its limits in framing issues on this aspect of its own accord and non-suiting the plaintiffs on the ground of misjoinder of parties. On the failure of the appellant to raise any objection regarding misjoinder of parties and cause of action before settlement of issues, the objection must be deemed to have been waived. In Srinivasan v. Subramaniam, (1965) 2 M. L. J. 502, a single Judge of this Court refused to permit the revision petitioner to succeed on a plea of misjoinder of cause of action, which he had not chosen to put forward at any earliest stage of that proceeding. In Sethu Madhavarao v. Food corporation of India, A. I. R. 1985 Guj. 27. Held that the provisions of O. 1, rule 13 of the Code of Civil Procedure are mandatory. They provide that if such objection was not taken, it shall be deemed to have been waived. They must be taken at the earliest possible opportunity and they must be taken in all cases where issues were settled at or before such settlement, unless the ground of objection has arisen subsequently thereto. The lower appellate court has also held that even assuming that there is misjoinder of plaintiffs, the decree cannot be reversed or substantially varied in appeal if it does not affect the merit of the case under Sec. 99 of the Code of Civil Procedure. This section lays down that no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court. It is the argument of the learned counsel for the appellant that the first appellate court could not have invoked this Sec. 99, c. P. C. , in a suit in which the trial court had found that it was bad for misjoinder of parties. But, it does not appear that there is any substance in this claim. In any event in view of the provisions of 0. 1, Rule 13 which I have already extracted, there is no necessity to invoke Sec. 99 of the C. P.