Bombay High Court
Purushottam Shivdas Chaudhari vs Narayan Shivdas Chaudhari on 27 October, 2016
Bench: P.R. Bora
1 AO No.28/2016
IN THE HIGH COURT OF JUDICATURE OF BOMBA
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.28 OF 2016
WITH
CIVIL APPLICATION NO.5284/2016
Purushottam s/o Shivdas Chaudhari,
Age: 698 Yrs., occu. Pensioner,
R/o Jalka Bazar, Near Post office,
Nandurbar, Tq. And Dist.Nandurbar. = APPELLANT
(orig. Defendant)
VERSUS
Narayan s/o Shivdas Chaudhari,
Age; 74 Yrs., occu. Pensioner,
R/o Manoj Bungalow, Shelawadi,
Dhule, Tq. And Dist. Dhule. = RESPONDENT
(orig. Plaintiff)
-----
Mr.AS Abhyankar, Advocate for Appellant;
Mr.KC Sant,Advocate for Respondent
-----
CORAM : P.R.BORA, J.
RESERVED ON : 30
th
August, 2016
PRONOUNCED ON: 27
th
October,2016
JUDGMENT:
1) With the consent of learned Counsel
appearing for the parties, the matter is finally
heard.
2) The appellant has filed the present
appeal challenging two orders both of the date
23rd February, 2016 passed by the Principal
District Judge, Nandurbar in Civil Appeal
No.17/2011. The aforesaid appeal was filed by
the present appellant challenging the judgment
and decree passed by Civil Judge, Senior
Division, Nandurbar in Special Civil Suit
No.13/2007. The aforesaid civil suit was filed
by the present respondent, seeking partition and
possession. Relief of permanent injunction was
also sought. The learned Trial Court decreed
the said suit partly and held the plaintiff and
defendant therein entitled for half share each in
the suit land and the suit house.
3) The civil suit filed by present
respondent was resisted by the present appellant
on several grounds. It was the contention of
the appellant that the partition was already
effected in respect of the suit properties in the
year 1962. It was the further contention of the
appellant that the suit so brought by the
respondent/plaintiff was barred by limitation.
The appellant had also raised an objection as
regards to non-joinder of necessary parties. The
Trial Court, however, has turned down all these
objections and has partly decreed the suit
thereby holding the respondent/plaintiff for
partition and separate possession of half of the
share in the suit land and the suit house.
4) Aggrieved by the judgment and decree
passed by the trial Court, the present appellant
had preferred Regular Civil Appeal No.17/2011
before the District Court at Nandurbar. During
pendency of the said appeal, the respondent
herein, i.e. original plaintiff, filed an
application at Exhibit-23 seeking addition of one
Ratilal Hiralal Choudhari as Respondent No.2 in
the said appeal and also in the civil suit as
defendant No.2 and consequently to amend the suit
plaint accordingly. The application so filed by
the respondent was resisted by the appellant. It
was the contention of the present appellant that
the application so filed by the respondent
plaintiff was beyond the period of limitation.
It was also contended that despite due
opportunities when respondent-plaintiff had not
made said Ratilal Hiralal Choudhari as party
respondent in the civil suit, he cannot be in the
appeal permitted to fill up the aid lacunae.
5) The learned Principal District Judge,
after having considered the arguments advanced by
the learned counsel appearing for the respective
parties, allowed the said application and passed
the consequential order below Exhibit-1 thereby
setting aside the judgment and order passed in
Special Civil Suit No.13/2007 and remanded back
the matter to the trial court with a direction to
permit the plaintiff to add Ratilal Choudhari as
party defendant to the suit and then to decide
the suit afresh in accordance with law. Aggrieved
by, the present appeal is filed.
6) Shri A.S.Abhyankar, learned Counsel
appearing for the appellant criticized the
impugned orders on several grounds. The learned
Counsel submitted that the objection about non-
joinder of necessary party was specifically
raised by the appellant before the trial court
during pendency of the civil suit. The learned
counsel further submitted that the appellant had
also submitted an application at Exhibit-112 with
a prayer to frame issue about non-joinder of
necessary party to the suit, as according to him,
Ratilal Choudhari was necessary party to the
suit. The learned Counsel further submitted that
the said application was objected to by the
present respondent. The learned Counsel further
submitted that though the trial court did reject
the said application, the appellant was allowed
to argue the said point at the time of final
hearing.
. The learned counsel further submitted
that the learned Principal District Judge has
failed in properly appreciating all the aforesaid
facts. The learned Counsel further submitted
that despite the specific objection raised by the
present appellant as regards to the necessity of
adding said Ratilal Choudhari as party respondent
since the respondent did not add said Ratilal
Choudhari as the party to the lis before the
trial court, the learned District Judge ought
not have allowed the prayer made by the
respondent in the appeal.
. The learned counsel further submitted
that while allowing the application at Exh.23 and
thereby permitting the respondent to add the said
Ratilal Choudahri as respondent in the suit for
partition, the learned District Judge has
completely ignored the provisions of the
Limitation Act. The learned Counsel submitted
that along with the issue of non-joinder of
necessary party, the appellant had also raised
certain other issues having material bearing on
the legality and correctness of the judgment and
order passed by the trial court. By remanding
the matter to the trial court, by allowing the
application submitted by the respondent, the
learned District Judge has taken away the
valuable right accrued in favour of the appellant
to agitate the appeal on the other valid grounds.
The learned counsel further submitted that the
learned District Judge has also failed in
appreciating that the application seeking
amendment in the pleadings is also governed by
Article 137 of the Limitation Act and as such,
any application filed after the period of three
years from the date of accrual of the cause of
action should not have been entertained as barred
by limitation. The leaned Counsel submitted that
by accepting the request of respondent to add
Ratilal Choudhari as party to the partition suit,
the learned District Judge has practically
allowed the respondent to fill up the lacunae of
want of necessary party by allowing his time-
barred application. The learned Counsel further
submitted that the learned Principal has
misconstrued the provisions under the Code of
Civil Procedure and the Limitation Act. The
learned Counsel on all the aforesaid grounds
prayed for setting aside the impugned order.
7) Shri K.C.Sant, learned Counsel appearing
for the respondent, supported the impugned
orders. The learned Counsel submitted that the
learned Principal District Judge has rightly
involved the powers under Order I Rule 10(2) of
Code of Civil Procedure for doing substantial
justice. The learned counsel further submitted
that it was well within the discretion of the
court to direct addition of Ratilal Choudhari as
party respondent in the suit for partition. The
learned counsel further submitted that after
passing of the impugned orders, the matter has
already been remanded to the trial court and
thereafter the present appellant along with added
respondent viz. Ratilal Choudhari has filed the
amended written statement to the suit for
partition filed by the respondent. The learned
counsel submitted that the appellant is thus now
estopped from raising any objection to the
impugned orders, when he has already acted upon
them. The learned Counsel further submitted that
no prejudice is likely to be caused to the
appellant because of the remand of the matter
vide the impugned orders and all issues are kept
open to be agitated by the parties before the
trial court. The learned Counsel, therefore,
prayed for dismissal of the appeal.
8) During the course of the arguments, the
learned counsel appearing for the appellant and
learned Counsel for the respondent, have relied
upon certain judgments to which I will be
referring at proper stage.
9) After having considered the arguments
advanced by the learned Counsel appearing for the
respective parties and on perusal of the impugned
orders and the material on record, it is
apparently revealed that the impugned orders
cannot be sustained for plural reasons.
10) The present appellant had filed
substantive appeal before the District court
challenging the judgment and order passed by the
trial court on various grounds. Non-joinder of
necessary party was one of such ground.
11) As is revealing from the pleadings, the
appellant had raised a plea that limitation for
entertaining the suit by the trial court seeking
partition and possession by the plaintiff
therein. The appellant had also raised a plea
that the partition in respect of the suit
properties had already been taken place in the
year 1962 and as such, it was not open for the
respondent plaintiff to again seek partition and
possession of the said properties. The plea of
estoppel, ouster and adverse possession was also
raised by the present appellant referring to the
factual aspects involved in the suit. The
possession aspect was also seriously disputed by
the appellant.
12) It is thus evident that non-joinder of
necessary party was not the only objection raised
by the appellant so that the matter could have
been remanded by the first appellate court on the
said issue alone. There is substance in the
objection raised on behalf of the appellant that
by allowing the application filed by the
respondent, seeking addition of Ratilal Choudhari
as party respondent in the suit and consequently
remanding the matter back to the trial court for
its decision afresh, the appellate court has
practically taken away the valuable right, which
was accrued in favour of the appellant to agitate
the other issues raised by him in the appeal in
challenge to the impugned judgment and order
passed by the civil court in Special Civil Suit
No.13/2007.
13) The point of limitation was heavily
pressed by the appellant before the trial court
while resisting the partition suit so filed by
respondent plaintiff. The appellant was thus
having right to agitate the point of limitation
in the first appeal before the District court
when according to the appellant, the finding on
the said issue recorded by the trial court was
wholly erroneous. The said issue could have been
decided in the appeal irrespective of the fact
that there was another objection also raised by
the appellant about non-joinder of necessary
party.
14) As was submitted by Shri Abhyankar,
learned Counsel appearing for the appellant, when
the first appellate court had heard the entire
appeal on merits, it ought to have decided all
the points raised by the appellant in exception
to the impugned judgment and decree. From the
material on record, there appears much substance
in the objection raised by the appellant in
regard to the limitation for filing the suit by
respondent - plaintiff. Contention of Advocate
Abhyankar is difficult to be ruled out that if
the first appellate court would have recorded
its finding on all the issues and had the
appellate court recorded a finding that the suit
filed by the respondent - plaintiff was not
within the period of limitation and was thus
liable to be dismissed on that count alone,
perhaps no order of remand would have been passed
even though the court would have reached to the
conclusion that Ratilal Choudhari was a necessary
party to the said suit.
15) In fact, the appropriate course for the
first appellate court would have been to decide
all the issues at a time instead of entertaining
the application filed by the respondent -
plaintiff under Order I Rule 10(2) of C.P.C. and
consequently to pass the final order thereby
remanding the matter to the trial court for
deciding it afresh. It was an unusual course
adopted by the learned District Judge of deciding
the appeal on an application submitted by the
respondent thereby setting aside the impugned
judgment and order, which was in favour of the
said respondent and which was never sought to be
set aside by the said respondent.
16) Moreover, while allowing the application
at Exh.23 filed by the respondent under Order I
Rule 10(2) of CPC, the learned District Judge has
failed in not considering the provisions of the
Law of Limitation and certain factual aspects
relating to the request so made by the respondent
- plaintiff in the said application. The first
appellate court has recorded a positive finding
in the impugned order passed below Exh.23 that
Ratilal Choudhari was necessary party to the
suit. However, the further finding recorded by
the learned District Judge that it would not be
in the interest of justice to defeat the claim of
the plaintiff on a technical ground of non-
joinder of necessary party cannot be upheld.
It's a debatable issue and the learned District
Judge should have given some more thought before
recording any such finding.
17) In the case of S.D.Ayyakannu (Died) and
Ors Vs. Somasundram and Ors. - 2002 AIHC 1138
Madras, the trial Court had dismissed the suit
for partition on the ground of non-joinder of
necessary parties. In the appeal, the Madras
High Court upheld the order passed by the trial
court, observing that there was no patent error
of law or perversity in approach in so far as the
lower court having arrived at its own decision on
each and every issue and ultimately deciding to
dismiss the suit for having not brought on record
the necessary parties in the suit for partition
and separate possession.
18) The Andhra Pradesh High Court in the
case of Nalla Venkateshwarlyu Vs. Porise Pullamma
and Anr. - AIR 1994 Andhra Pradesh 87, has held
that if in a partition suit, a necessary party is
not impleaded, the suit has to be dismissed on
that ground. It was sought to be canvassed in
the said matter that as provided in Order I Rule,
9, no suit shall be defeated by reason of mis-
joinder or non-joinder of parties and the Court
may in every suit deal with the matter in
controversy as regards to the rights and interest
of the parties actually before it. The argument
was, however, turned down by the high court with
the following observation, -
"10. Though the provisions of
Order I, Rule 9 say that no suit
shall be defeated by reason of mis-
joinder 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, the proviso makes it
clear that this rule does not apply
to non-joinder of necessary
parties. Therefore, if necessary
party is not impleaded in a suit
or an appeal, it will have to be
dismissed on that ground.
11. Admittedly, the third
defendant is having 1/3rd share in
the property and she was impleaded
as second respondent. But, against
her name, it was noted that she is
not necessary party. The copy of
the grounds filed contain many
alterations and in fair copy of the
grounds, the third respondent was
not impleaded. Therefore, the
second appeal cannot be maintained
in the absence of 3rd respondent,
who is a necessary party. On this
ground, the second appeal is
dismissed but in the circumstances
of the case, without costs."
19) It was contended by Shri Sant, learned
Counsel appearing for the respondent that the
appellant did not raise the objection as regards
to the non-joinder of necessary party in its
written statement and as such, was estopped from
raising the said objection at the subsequent
stage in view of Order I, Rule 13 of CPC. Reading
out the said Rule 13, the learned Counsel
submitted that the appellant shall be deemed to
have waived the objection as regards to the non-
joinder of Ratilal Choudhari as party to the suit
in the trial court since no such objection was
raised by the appellant in the written statement
filed by him in the civil suit. However, the
objection so raised also cannot be sustained in
view of the judgment of Madras High Court in the
case of Shanmugham and Ors Vs. Saraswathi and
Ors. - AIR 1997 Madras 226. In the said matter,
similar issue was involved and the contention so
raised was rejected by the Madras High Court,
observing that the question of non-joinder of
necessary parties in a suit for partition can be
raised at any time as it goes to the root of the
matter. The High court has further observed that
the suit for partition is not maintainable in
absence of some of the co-sharers.
. The aforesaid judgments are referred by
me only to point out that the objection of non-
joinder of necessary party in a partition suit
cananot be said to be technical ground as noted
by the learned District Judge.
20) Certain further observations made by the
learned Principal District Judge on the point of
limitation also cannot be subscribed. The
learned District Judge has made the following
observations, - "The submission of the learned
Advocate for the appellant that the present
application is not within limitation cannot be
accepted as the court, at any stage of the
proceedings, can order, without the application
of the party the name of any person whose
presence before the court is necessary in order
to enable the court to effectively and completely
adjudicate upon and settle all the questions
involved in the suit be added."
21) In the commentary on the Code of Civil
Procedure by Mulla (15th Edition), it is said that
"the mere fact that the court of its own motion
orders that the name of any person be added as a
party, does not render the provisions of Section
21 of the Limitation Act inapplicable to the
case. There is nothing in sub-rule(2) which
frees the court where acting on its own motion
from the restrictions of the Limitation Act. In
other words, a court acting under sub-rule (2) is
bound by the provisions of Section 21 of the
Limitation Act, and the rights which the parties
may have acquired under the Limitation Act are,
therefore, safeguarded."
22) In the instant case, the appellant had
raised a specific plea that the application filed
by the respondent/plaintiff was barred by
limitation. The learned Principal District Judge
has, however, failed in appreciating the said
objection. Though the appellant had also relied
upon the judgment of this court (Coram:
D.G.Karnik,J.) in the case of Harinarayan G.Bajaj
and Anr. Vs. Vijay Agarwal and ors. - 2012 (2)
Mh.L.J.106, the learned District Judge does not
seem to have considered the said judgment.
. One more objection was raised by the
appellant to resist the application filed by the
respondent plaintiff at Exh. 23 stating that when
despite the objection raised that Ratilal
Choudhari was the necessary party, the respondent
plaintiff proceeded in the suit without joining
said Ratilal Choudhari as party, it was not
permissible to allow the respondent plaintiff to
remedy the said defect in appeal. Shri Abhyankar,
learned counsel for the appellant, has relied
upon the Full Bench judgment of Travancore High
court in the case of Chenthiperumal Pillai
Chanthanamuthu Pillai Vs. D.M.Devasahayam - 1956
TRA.CO.181 wherein it is held that, -"It is a
well-recognised rule of law that if in spite of
objection raised at the proper time, the
plaintiff persists in the suit without joining
the necessary parties, the suit has to be
dismissed and that he cannot be allowed to remedy
the defect in appeal." It is not in dispute
that in the instant matter, the specific
objection was raised by the appellant that
Ratilal Choudhari was a necessary party to the
suit. It is further not in dispute that the
respondent plaintiff had at a time taken a stand
that Ratilal Choudahri was not necessary party to
the suit. The question arises whether the
respondent could have been permitted by the
learned Principal District Judge to take a
contrary stand and whether would it not amount to
allow the respondent plaintiff to remedy the
defect in appeal. I prefer not to make any
comment, whether the aforesaid Full bench
judgment would be applicable to the facts of the
present case and leave it to be considered by the
first appellate court.
24) Shri Sant, leaned Counsel appearing for
the respondent, had relied upon two judgments of
this Court, one in the case of Sushil Kaur w/o
Sukhbirsingh Chhatwal and Ors. Vs. Aurangabad
Ginning and Pressing Factory and Anr. - 2012 (2)
Mh.L.J. 295 and another in the case of Sumitra
Anna Aware and Ors. V. Anusaya Rajaram Aware and
Ors. - 2012 (3) Mh.L.J. 649. I have gone through
the text of the said judgment. There cannot be a
dispute about the findings recorded and the law
laid down in both the aforesaid judgments.
However, in the facts of the present case, the
observations made and the conclusions recorded in
both the aforesaid judgments would not apply and
may not take further the cause canvassed by the
respondent-plaintiff. Anothoer contention raised
by Adv. Sant that the present appeal has become
infructuous since the appellant has acted upon
the order of remand and had also filed the
amended written statement jointly along with the
added defendant, also do not deserve any
consideration, is liable to be rejected.
25)
For the reasons stated above, both the
impugned orders are liable to be set aside.
However, before concluding the Judgment, I would
like to make it clear that whatever observations
are made by me in this judgment are all prima
facie in nature and I have not expressed any
opinion on the merits of any of the issues
arising for decision in the suit or in the appeal
and whatever I have stated herein is only for the
purpose of demonstrating that the appellate court
should not have remanded the matter to the trial
court to decide it afresh without considering all
the objections raised by the appellant in
exception to the judgment and order passed by the
trial court. In the result, the following order,
-
ORDER
I) The orders dated 23.2.2016 passed by
Principal District Judge, Nandurbar below
Exhibit-23 and Exhibit-1 in Regular Civil Appeal
No.17/2011 are quashed and set aside. The appeal
shall stand restored to the file of the Principal
District Judge;
ii) The Principal District Judge is directed
to decide the Regular Civil Appeal No.17/2011 on
its own merits, taking into account all the
grounds of objections raised by the appellant and
keeping in view the the observations made by
this Court in this judgment;
iii) The Appeal is allowed in the aforesaid
terms. Pending Civil Application stands disposed
of.
sd/-
(P.R.BORA)
JUDGE
bdv/
Fldr 25.10.16
