KAZAKKEPATI THAVAZHI THARWAD KARNAVAN AND MANAGER CHEROTI AMMA S SON NARAYANA NAIR Vs. THAVALAPARA KOMLI S SON CHEKUNNI

JUDGEMENT

(1.) The appellant and one Karthiyayini Amma, a lady of this Tarwad executed a kanom kychit in favour of the 9 oh and 10 defendants; and the appellant, as the karnavan of the Tarwad, brought this suit for the redemption of the prior mortgages. The suit was decreed by the District Munsif of Walluvanad but in appeal the Subordinate Judge of Oltapalam has given three xeasons why the suit should not be decreed. The first is that the suit was premature in that it was brought before the expiration of the period of the mortgage. The second is that the suit is not maintainable without Karthiya-yini Amma's heirs being made parties to the suit, as the keychit was executed by her and the plantiff jointly and not by the Tarwad as represented by them. The third objection to the plaintiff's suit is that he has not asked to be allowed to redeem the whole of the property mortgaged. In appeal all these points have been argued, except that the finding of the learned Subordinate Judge that the , kanom kychit was executed by the plaintiff and Karthiyayini Amma in their personal capacities and not on behalf of the Tarwad has been accepted. It, therefore, follows that Karthiyayini Amma must be added as a party; but it is contended that the plaintiff should not be given an opportunity of doing so? It has also been conceded that the plaintiff is bound to pay for the improvements of all the lands covered by the mortgage, and, therefore, to redeem all of them.

(2.) The trial Court found that the suit was not premature. The question arose because the mortgage document Ex. A was executed seven years after the execution of a similar deed Ex. Ill, for which type of mortgage the normal term is 12 years. The existence of a mortgage for 12 years does not prevent the parties from renewing the mortgage and cancelling the old one before the 12 years have expired: and to see whether that has been done, one has to examine the document itself. The learned District Munsif pointed out that there is nothing in Ex. A to indicate that it. was not to operate until the expiration of the 12 years under Ex. III, and I agree. Not only is there nothing in Ex. A to suggest that it is not intended to operate for a number of years: but there are recitals definitely proving that it is to operate at once. For example, we find. These items are demised to me today". Later on. Out of this Michavaram the paddy shall be paid from 1089 onwards (the year of Ex. A being 1088); then, lower down" the oil shall be measured according to the oil measure before the 30 Makoram of each year from 1089 onwards". The next sentence is: The Government assessment with fund of the scheduled properties from 1089 onwards shall be paid yearly". Lastly and still more important we find the sentence, ?I would also forfeit the right to hold the properties for the rest of the period for which the properties have been demised the kanom". So that the natural presumption that a mortgage-deed would not be executed five years before it was intended to operate is reinforced by definite terms in the document itself proving that it is intended to operate at once. The lower Appellate Court was wrong1 in holding that the suit was premature.

(3.) Most of the contest in this Court. has been centred round the question whether the suit must fail because Karthiyayini Amma's heirs have not been added as parties. Order I. Rule 9, Civil Procedure Code, lays down the principle that a suit shall not be dismissed merely because of the non-joinder of some person necessary to the suit; but admittedly an exception has been made by the Courts to those cases in which the plaintiff has persisted in two or more Courts in not adding the necessary party, even when he was given an opportunity to do so. This principle is enunicated in Naba Kumar Hazra V/s. Radhashyam . Their Lordships found it necessary to dismiss the suit because the plaintiffs had violated the terms of Order II, Rule 2, in that in a previous litigation they did not ask for the relief that could then have been granted. At the very end of the arguments the Counsel for the plaintiffs-appellants asked for permission to add the co-mortgagors. It appears that the reason why the plaintiff had not added the co-mortgagors at the outset was that the defendants claimed accounts against these co-mortgagors and the plaintiff wished to avoid this issue. Their Lordships also found that a remand would have necessitated a commencement of the proceedings de novo; for the contest between the defendants and the co-mortgagors would then have had to be opened. The claim in Faqir Chand V/s. Aziz Ahmad Khan was of an intricate nature and the plaintiff was eventually unsuccessful. He then asked in appeal for permission to change his suit into one. for contribution. Had he been allowed\to do that it would have changed the whole nature of the suit which was a complicated one. All the evidence that had been let in would have been of no avail and fresh evidence of an entirely different kind would have been necessary. The Court, therefore, refused to allow the amendment. Their Lordships, however, held that had there been a mere non-joinder of parties they would have remanded the suit for fresh disposal. Subbarayya Sastri V/s. Seetha Ramaswami (1933) MWN 1209 : 146 Ind. Cas. 72 : 38 LW 247 :65 MLJ 290 : AIR 1933 Mad. 664 : 6 RM 214 (2) was a case in which the plaintiff was particularly remiss in not adding a necessary party. There had been disputes between the plaintiff and the Bezawada Municipality, The plaintiff, in order to avoid a direct contest with the Municipality and to try to assert his right by a tortuous method, brought a suit to eject a person from a strip of lane that he was claiming. The trial Court found it necessary although the Municipality was not a party, to consider the relative claims of the plaintiff and the Municipality. Naturally the defendant was not able to put forward fully the claims of the Municipality and it was held in this Court that the suit should not have been decreed; but should have been dismissed on account of the refusal of the plaintiff to add the Municipality as a party. In each of these cases the Court found that the plaintiff had disentitled himself to an equitable remedy under Order I, Rule 9, by way of amendment of plaint because of his conduct throughout the suit. In none of these cases was the plaintiff's suit dismissed on the purely technical ground that he had failed to amend his plaint in the lower Courts. The conduct of the plaintiff, the persistency with which he prosecuted his wrong claim, his refusal to adopt the remedy open to him when the opportunity arose, or an injustice to the defendants, was the reason for the refusal of the Appellate Courts to allow an amendment. In Mohana Velu Mudaliar V/s. Annamalai Madaliar (1923) MWN 89 : 72 Ind. Cas. 63 : 44 MLJ 249 : 17 LW 241 : AIR 1923 Mad. 337 a bench of this Court refused to allow an amendment where the plaintiff had wrongly refused to add certain executors as parties to a suit on a will; but there the change in the position of the defendants on account of the conduct of the plaintiff was the reason for the order. From a perusal of these cases quoted on behalf of the defendants, it cannot be said that there is any rule of thumb by which a Court can say whether the plaintiff shall be allowed to add a party at a late stage or not. Order I. Rule 9, is still the rule to be applied at any stage of a proceeding; and the plaintiff should only be refused that equitable relief when his conduct has been such as to disentitle him to it. Although the cases quoted by the learned Advocate for the appellant, e.g. Ramanathan Chettiar V/s. Raja Sir Annamalai Chettiar and Kherodamoyi Dasi V/s. Habib Saheba , are not very much to the point, yet they do at least show that Courts will not lightly dismiss a plaintiff's suit unless his conduct has been such that he does not serve the consideration of the Court. If he has behaved in a fair and straightforward manner and the adding of a party would not unduly prejudice the defendants, his suit should not be dismissed because of some technicality. Applying these principles to this case, we have to see whether the conduct of the plaintiff has been such that he does not deserve to be allowed the privilege that Order I, Rule ,9, gives him. It was of no importance to the defendants at all whether the mortgage was in favour of the Tarwad or in favour of the plaintiff and Karthiyayini Amma personally. The contest in the trial Court seems to have turned on this point at all, the evidence being led on the questions whether or not the suit was premature and on the value of the improvements. That being so it would be most inequitable if the plaintiff were not granted the relief to which he is in equity entitled merely because he stated that they had taken the mortgage on behalf of the Tarwad and not for themselves. It is pointed out that even in the lower Appellate Court the plaintiff did not ask that in the event of the learned Subordinate Judge's coming to the conclusion that the mortgage was not for the benefit of the Tarwad, he should permit the plaintiff to add the sons of Karthiyayini Amma as parties: but the plaintiff could hardly do so there because the Subordinate Judge having found incorrectly on issue No. 1 intend dismissing the suit in any event. Mr. Govinda Menon says that he holds a vakalat from Karthiyayini Amma's heirs; but even ignoring that, there seems to be no reason why Karthiyayini Amma's heirs should object to being added as parties: because the plaintiff, even without their consent, has a right to redeem.