RAGHBIR KAUR Vs. GURMEJ SINGH

JUDGEMENT

(1.) ON 21 -7 -1981, Gurmej Singh filed a suit for possession of agricultural land measuring 43 Bighas, 12 Biswas on the pleas that it was owned by Gurdial Singh and he executed an unregistered will dated 19 -7 -1978 in his favour and since Gurdial Singh died, he inherited the same and was entitled to possession He claimed to be the sole legatee under the will. Smt. Raghbir Kaur was impleaded as the sole Defendant and she pleaded that Gurdial Singh deceased had executed a registered will dated 27 -2 -1978 in her favour and she was in possession of the land in dispute as the legatee under that will and strongly disputed the execution of the unregistered will dated 19.7.1978 set up by the Plaintiff On the contest of the parties, the trial Court framed issues on which the trial proceeded The onus of proof of the will set up by the Plaintiff was on the Plaintiff and of the will set up by the Defendant was on the Defendant. The Plaintiff closed his evidence in affirmative on 11 -1 -1982 and thereafter the Defendant led evidence in support of the will set up by her On 21 -11 -1984 the Plaintiff filed an application for permission to lead additional evidence. That application was dismissed by the trial Court on 29 -2 -1984 and the Plaintiff's revision to this Court also remained unsuccessful by order dated 27 -4 -1984. Thereafter, the Plaintiff filed an application before the trial Court on 11 -5 -1984, that means almost on the conclusion of three years of the pendency of the suit, under Order 23, Rule 1 of the Code of Civil Procedure for permission to withdraw the suit with liberty to file a fresh one on the same cause of action. The reason given in the application for the withdrawal of the suit was that under the Will set up by the Plaintiff, there were two more legatees in addition to the Plaintiff. Those legatees were stated to be religious institutions out of which one was a Gurdwara and the other a Masjid. On this basis it was pleaded that since those two legatees were not made parties to the suit therefore, there was formal defect in the suit and the suit was likely to fail on that ground The application was contested by the Defendant. The trial Court by order dated 18 -5 -1984 allowed the application and allowed the suit to be withdrawn with permission to file a fresh one on payment of Rs. 100/ - as costs. While considering the merits of the application the trial Court observed as follows:

(2.) AFTER hearing the Learned Counsel for the parties and on consideration of the entire matter, I am of the view that the Court below exceeded its jurisdiction in allowing the Plaintiff to withdraw the suit with liberty to file a fresh one, and in any case acted illegally with material irregularity in passing the order. The Plaintiff pleaded in para 2 of the plaint that the Will had been executed in his favour as he had been rendering service to the deceased as his brother and he was the owner under the Will. The Defendant did not plead in the written statement if there was any other legatee. Admittedly, no issue was framed if the suit was bad for non -joinder of parties and no evidence in this behalf was recorded during the trial After the case had gone through the major part of the trial in the trial Court for about three years and after the Plaintiff failed in getting permission in the trial Court to lead additional evidence, this application was filed which was not even a bona fide application. In the new suit, if permission were to be granted, the Plaintiff could fill in the lacuna in the evidence, if any left in the first suit This seems to be the ulterior motive in filing the application for withdrawal of the suit with permission to file a fresh one. Coming back to the ground mentioned in the application for withdrawal of the suit with permission to file a fresh one, when there is no allegation in the pleadings, nor the matter has been put in issue whether the suit is bad for non joinder of the parties, at the instance of the Plaintiff the suit could not be allowed to be dismissed as withdrawn with permission to file a fresh one Reference may be made to Order 1, Rules 9 and 13 of the C P.C. Rule 13 provides that 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 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. In this case the Defendant is not raising any such point even now and is now deprived from raising the point if the first suit is allowed to continue. As regards Rule 9, it clearly provides that 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. To this Rule proviso was added by the Amending Act of 1976 which is in the following terms:

(3.) IF this point cannot be allowed to be raised during the trial of the case, Section 99 of the Code of Civil Procedure further provides that no decree shall be reversed or varied in appeal on account of non -joinder of parties, who are not found to be necessary parties. Since the co -legatees are not necessary parties in this case, the question of allowing such point to be raised at any subsequent appellate stage will also not arise.