MOTOI MIA Vs. ABDUL HAQUE

JUDGEMENT

(1.) THIS appeal by the defendants against a remand order involves a short but important point of law. The suit was for determination of the respective shares of the plaintiffs on effecting an imperfect partition of the scheduled land. On pleadings as many as 6 issues were framed of which issues Nos. 1, 3 and 5 were decided in favour of the plaintiffs. The learned Munsiff held that the plaintiffs had cause of action for the suit; that the suit was not barred by limitation; and also that the plaintiffs had title to the suit land. The suit was dismissed by him on the basis of his findings on issues Nos. 2 and 4 which related in one case to non-joinder of parties and in the other case to maintainability. The Court held that the suit being one for partition all the co-sharers were necessary parties and from the evidence it having been found that some co-sharers were not impleaded by the plaintiffs he decided issue No. 7 in favour of the defendants to hold that the plaintiffs were not entitled to any relief and accordingly dismissed the suit.

(2.) THE learned lower appellate Court reappraised the evidence on issues Nos. 2 and 4 and came to the conclusion that although the bone of contention between the parties according to the Court below was whether one Ishan Mia was also a co-sharer being also a son of one Sagir Mohammad as it was the common case of the parties that Sagir Mohammad was one of the sons of Golam Mahammad whose claim was not disputed by either side, the finding of the learned Munsiff stood on shaky foundation as there was no evidence to support the theory that Sagir Mohammad was also known as Nawaz Mia. The suit therefore could not be dismissed for not impleading heirs of Ishan Mia, according to the learned appellate Court. It was further held that the suit being instituted on 5-9-1972 and the judgment therein being rendered on 29-11-1975 it would be governed by the provisions of the unamended C. P. C. and therefore under Order 1, Rule 9 the suit could not be dismissed for non-joinder of the parties. It was further observed that the learned Munsiff ought to have offered an opportunity to the plaintiffs to implead the necessary parties instead of dismissing the suit outright. On 20-4-1976 the plaintiffs-appellants filed an application in the appeal stating that in view of the objection raised by the defendants - respondents in the Court below on the score of non-joinder of necessary parties accepting which the Court below had dismissed the suit, they may be allowed to meet the objection and the parties named in the application may be allowed to be impleaded as respondents in the appeal and that they may be also impleaded as defendants in the suit by amending the plaint. The learned Assistant District Judge who heard the appeal allowed the same and remanded the suit for retrial with the direction that the Court below shall give an opportunity to the plaintiffs to implead necessary parties in the suit and to make necessary amendment in the plaint, accordingly.

(3.) MR . Laskar further submits that in any case even if the matter is held to be governed by the unamended provision the plaintiffs are not entitled to avail the benefit of the provision of either Section 99 or Order 1, Rule 9 inasmuch as what can be said to be compendiously contemplated under these provisions is that no decree shall be reversed or substantially varied and no case shall be remanded in appeal when the defect or irregularity does not affect the merit of the case or jurisdiction of the Court and further that no suit shall be defeated in a case where the defect relates merely to misjoinder or non-joinder of parties generally and these provisions do not operate when the case is one of "necessary parties" being not impleaded. In this connection he has drawn my attention to a decision reported in AIR 1965 SC 271, (Kanakarathanammal v. Loganatha). It was held in that case that the provisions of Order 1, Rule 9 are not meant to apply in a case where the defect is one which relates to non-joinder of necessary parties and further that in such cases the infirmity ought to be treated as fatal. This provision, however, was not considered by the Court even in that case to control or affect the power of the Court to allow amendment of the pleadings under Order 6, Rule 17. It was observed that the brothers in that case were necessary parties in a suit by the daughter claiming recovery of property from the beneficiary under the will as brothers were entitled to inherit the property along with her and the suit partook the character of a suit for partition. The plea as to non-joinder was raised in the trial Court and issue was also framed but the plaintiff made no attempt to amend her plaint even in the appeal before the High Court and no application even in the appeal in the Supreme Court was made until the appeal was allowed to stand over after it was heard. The Supreme Court, therefore, rejected the belated application for amendment which was made before it. About the power of the Court to direct necessary parties to be joined under Order 1, Rule 10, it was observed that it can and should be done at the stage of trial and too without prejudice to the parties plea of limitation. This decision, therefore, does not support, in my opinion, Mr. Laskar's contention.