KUOVIO ZHASHUMO Vs. KHRIENUO ANGAMI

JUDGEMENT

(1.) Heard Mr. R. Iralu, learned senior counsel assisted by Ms. Mhabeni, learned counsel for the petitioner. Also heard Mr. P.B. Paul, learned counsel for the sole respondent.

(2.) The father of the sole respondent Late Kuodio Angami lodged a complaint before the Phesama Village Council which was later transferred to the Court of ADC (J), Dimapur and was registered as C.S. No.79/91. During the pendency of the suit the father of the respondent Late Kuodio Angami died. After a lapse of 5 years, the present respondent who is the daughter of Late Kuodio Angami made an application for substitution in C.S.No.79/91. The said application was dismissed by the learned ADC (J) by order dated 6.8.1998. However, by the same order liberty was given to the respondent herein, to file any suit afresh. Thereafter, the respondent filed C.S.No.3/98 for declaration of title of the suit land, cancellation of mutation/jamabandi issued in favour of the petitioner/appellants and for permanent injunction. After framing issues and adducing evidence from both the parties, the learned trial Court passed judgment dated nil August 2010 declaring title of the suit in favour of the respondent with a direction to give 2 bighas of land to the petitioners herein by the respondent at a suitable place. Being aggrieved, the petitioner had preferred an appeal against the said judgment passed by the learned trial Court in C.S.No. 3/98 before the District and Sessions Judge, Dimapur. The said appeal was registered as Civil Appeal No.7/2010. After hearing the parties, the learned Appellate Court disposed of the appeal by the impugned judgment and order dated 14.6.2012 setting aside the judgment dated Nil August 2010 passed by the learned Civil Judge, Senior Division in C.S. No.3/98 with a direction to conduct a denovo trial by impleading the Government as necessary party. Against the judgment and order dated 14.6.2012 passed by the Appellate Court, the present revision petition has been filed.

(3.) Mr. R. Iralu, learned senior counsel for the petitioner submits that after a complaint was lodged by Late kuodio Angami who was the father of the present respondent before the Phesama Village Council, the same was transferred to the Court of ADC (J) which was registered as C.S.No.79/91. During the pendency of the suit, the father of the respondent died. Thereafter, the present respondent filed a substitution petition after a lapse of 5 years which was dismissed by the ADC (J), Dimapur by order dated 6.8.1998 on the ground that the respondent had failed to justify the extremely long delay in approaching the Court for substitution. However, while dismissing the substitution petition, liberty was again given to the respondent to file any suit afresh. He, therefore, submits that C.S.No. 79/91 stood abated and therefore, the question of giving liberty to the respondent to file any suit afresh is unheard of in law and therefore, the order dated 6.8.1998 is not tenable in so far as granting liberty to file any suit afresh is concerned. However, in the instant case, the respondent had filed C.S.No.3/98 on the same issue over the same disputed land and therefore, the learned trial Court could not have entertained C.S.No.3/98. It is submitted that though liberty was given to file any suit afresh, the same cannot over ride the settled position of law as regard maintainability and non existence of cause of action in a fresh suit that was filed by the respondent. Therefore, when C.S.No3/98 was entertained and the same was disposed by judgment dated Nil August 2010, the petitioner had filed the appeal before the appellate Court which was registered as C.S.No.7/10. It is submitted that the learned Appellate Court while disposing the C.A.No.7/2010 had made an observation that the order dated 6.8.98 passed in C.S.No.79/91 is of no legal consequence and non issue. The same is also totally illegal and unreasonable inasmuch as the same was made to favour the respondent. Further, the direction of denovo trial for non impleadment of necessary parties during the trial of the suit is also beyond the jurisdiction of the appellate Court. In the facts, he submits that the learned Appellate Court should have dismissed the suit for non joinder of necessary parties in view of the provisions of Order 1 Rule 9 CPC.