HITKARINI SABHA Vs. D. MAGAL WADI AND OTHERS

JUDGEMENT

(1.) This second appeal is by one of the defendants and is directed against the judgment and decree dated 24.8.1982, passed by V Addl. Judge to the Court of District Judge, Jabalpur in Civil Appeal No. 18-A of 81 arising out of judgment and decree dated 23.4.1981, passed by V. Civil Judge, Class, 1, Jabalpur in Civil Suit No. 28-A of 77, dismissing the appeal filed by the appellant as incompetent for non-joinder of parties.

(2.) The respondent No. 1 filed her suit against appellant and respondents 2 and 3 challenging her retirement on attaining the age of 62 years on 8.8.1977. Her case was that under Board of Secondary Education Regulation, 1965 she was entitled to continue upto the end of session i.e. 30.4.1978. She therefore claimed a declaration that her retirement was illegal and she continue in employment upto 30.4.1978. The appellant and the other two respondents were joined as defendants in the suit. The 3 defendants filed their common written-statement and denied the claim. The trial judge by its judgment and decree dated 23.4.1981 decreed the suit awarding a sum of Rs. 4,700.00 as salary for the period upto 10th June, 1978. Against this decree the present appellant alone filed the First Appeal without joining respondents 2 and 3 therein. The respondent No. 1 raised an objection that the appeal was incompetent inasmuch as the other two respondents who were necessary .parties were not joined. In order to meet this objection the appellant filed as application under order 1, rule 10, C.P.C. seeking permission to join them as parties to the decree. The learned lower appellate Court held that the appeal was joint against 3 defendants and was indivisable. It also held that the respondents 2 and 3 were necessary parties and since they were not joined the appeal was liable to be dismissed for non-joinder. The Court found no justification for permission under order 1, rule 10, C.P.C. or under order 6, rule 17, C.P.C. That is how the matter is before this court in this second appeal.

(3.) This court while admitting the appeal for final hearing on 25.1.1983 framed the following substantial question of law for its consideration :