SHITLADIN Vs. BOARD OF REVENUE UTTAR PRADESH ALLAHABAD

JUDGEMENT

(1.) The following question has been referred by our brother Broome to a larger Bench :

(2.) The question arises in a suit instituted under Sections 59, 180 and 183 of the U. P. Tenancy Act, 1939, by the petitioners against Azimullah lumberdar of the mahal in which the land in dispute is situated and all the co-sharers of the mahal, including Sadiq Husain and Salim Ullah, alleging that Salim Ullah, who is a son of Azim Ullah, had no cultivatory right at all in the land in dispute and his name was fictitiously recorded in the village papers and that they themselves were the hereditary tenants. The suit was contested only by Salim Ullah; the lumberdar and other co-sharers did not contest it. While it was pending the U. P. Tenancy Act was repealed and the U. P. Zamin-dari Abolition and Land Reforms Act came into force with effect from 1-7-1952. The land in dispute is a cultivated land, still the Gaon Sabha ot the village in which it is situated was impleaded as one more defendant as required by Rule 7 of the Rules framed under the Zamindari Abolition and Land Reforms Act. The suit was dismissed by the trial Court on 10-3-1954. Sadiq Husain died on 15-3-1954 and the petitioners filed an appeal im-pleading as respondents all the defendants to the suit and not legal representatives of Sadiq Husain. On 21-2-1955 the appellate Court held that the appeal had stood abated on account of the non-impleading of legal representatives of Sadiq Husain. The petitioners appealed from the said declaration of the appellate Court and on 22-10-1956 the Board of Revenue dismissed the appeal. Thereupon the petitioners filed a petition for certiorari to quash the orders of the appellate Court and the Board of Revenue on the ground that they refused to exercise the jurisdiction vested in them, to hear the appeal on its merits and that they committed a manifest error of law in declaring that the appeal stood abated. They also seek mandamus requiring the appellate Court and/or the Board of Revenue to hear the appeal on merits.

(3.) In respect of every suit there are certain persons who are essential to be impleaded as defendants; if they are not, no relief can be granted against them or in the suit. These persons fall in two classes, (1) of those against whom the relief is sought, and (2) those whom the law requires to be impleaded as defendants, even though no relief is sought against them. Under Order 1, Rule 3, C. P. C. all persons against whom any right to relief is alleged to exist should be impleaded as defendants. No relief can be granted against a person who has not been impleaded as a defednant. If relief can be claimed against two persons, but only one is impleaded as a defendant relief can be granted against him only; not only can no relief be granted against the other but also the fact that the other has not been impleaded will not cause relief to be refused against the one impleaded; see Rule 9 of Order I. There are various provisions in statutes requiring certain persons to be impleaded as defendants, such as Order XXXIV, Rule 1, C. P. C, Sections 49. 59, 183 and 246 of the U. P. Tenancy Act. If these persons are not impleaded as defendants the suit will fail. Order I, Rule 9 is subject to any special or local law, or any special form of procedure prescribed by any other law, vide Section 4, C. P. C. Consequently if any law prescribes that 3 certain person must be impleaded as a defendant, even though no relief is sought against him, the failure to implead him will be fatal to the suit, notwithstanding the provision in Order I, R. 9. Persons who are not essential to be impleaded as defendants to a suit again fall in two classes, (1) of those who are in some way interested in, or connected with, the relief sought against others and (2) of others, who are not at all interested in, or connected with, it. Persons of the latter class must not be impleaded as defendants at all, but persons of the former class may be impleaded as proper parties at the discretion of the plaintiff by way of abundant caution, or to avoid future litigation and the relief will not be refused on the ground that they have not been impleaded