The single judge bench of the Jharkhand High Court held that Word ‘shall’ used in Order I Rule 3 cannot always be interpreted as mandatory to hold that the impleading of the Deputy Commissioner is mandatory in all circumstances.
Brief facts
The factual matrix of the case is that the suit land belongs to one Johan Oraon who had two sons namely Nirmal Oraon and Anand Mashih. After the death of Johan Oraon, the suit land was divided between the two brothers and Schedule B land came in possession of Nirmal Oraon who later on gifted the entire land to the plaintiff who happened to be his daughter by registered deed of gift. Thereafter, the gift was mutated in the revenue records, and a rent receipt was issued. Plaintiff filed the suit for declaration of right, title, and possession over the lands detailed in Schedule B of the plaint. The trial court dismissed the suit and held that the order of the permission by the SDO was not according to law. The first appellate court reversed the judgment passed by the trial court on the ground that the appellate order passed in the Permission Case, was recalled as the appeal of the defendant abated before the Deputy Commissioner on account of the death of Nirmal Mahto.
Issue before the court
“Whether the suit suffers from non-joinder of the Deputy Commissioner as party- defendant in the suit?”
Contentions of the Appellant
The Appellant contended that the amendment was made in the provision of Order 1 Rule 3 of the CPC that in the suit for declaration of title for possession relating to immovable property, the Deputy Commissioner concerned shall also be impleaded as a defendant. It was furthermore submitted that the deputy commissioner is a necessary party who was not impleaded and therefore, the suit was bad for non-joinder of the necessary party and was liable to be dismissed on this score alone. The Appellant relied upon the judgment titled Marshallan Munda & Others Versus Most. Salmi Mundain & Others.
Contentions of the Respondent
The Respondent contended that the gift deed was executed after the permission of the SDO and the defendant preferred an appeal. However, during the said appeal, Nirmal Oraon died and consequently the order was passed against the dead person which was subsequently recalled by the Deputy Commissioner.
Observations of the court
The Hon’ble Court observed that both sides are members of Schedule Tribes and even non-impleadment of the Deputy Commissioner, cannot in all circumstances result in the suit being bad for non- joinder of the necessary party.
It was furthermore observed that the use of the word ‘shall’ used in Order I Rule 3 cannot always be interpreted as mandatory to hold that the impleading of the Deputy Commissioner is mandatory in all circumstances.
The court relied upon the judgments titled Raza Buland Sugar Co. Ltd. v. Municipal Board.
Based on these considerations, the court answered the substantial question of law in the favour of plaintiff.
The decision of the court
With the above direction, the court dismissed the second appeal.
Case title: Mehrani Ekka V. Smt. Illias Oraon @ Elias @ Elice Oraon
Coram: Hon’ble Mr. Justice Gautam Kumar Choudhary
Case No.: Second Appeal No. 43 of 1995 (R)
Advocate for the Appellant: Mr. Suraj Kumar, Advocate
Advocates for the Respondents: Mr. Amar Kumar Sinha, Advocate Mr. Sumit Kumar, Advocate
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