Madhya Pradesh High Court
Smt.Anisa Bi vs Ansar Khan Qureshi on 4 March, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 4 th OF MARCH, 2024
MISC. APPEAL No. 243 of 2009
BETWEEN:-
SMT.ANISA BI W/O AZIZ QURESHI, AGED ABOUT 43
YEARS, R/O AZAD WARD PIPARIYA DISTT
HOSHANGABAD (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ISHTEYAQ HUSAIN - ADVOCATE )
AND
1. ANSAR KHAN QURESHI S/O S/O ABDUL MAJID,
AGED ABOUT 42 YEARS, AZAD WARD PIPARIYA
DISTT HOSHANGABAD (MADHYA PRADESH)
2. KAMROON NISHA W/O SABIR KHAN, AGED
ABOUT 50 YEARS, R/O 12, BUNGLOW, ITARSI,
TEHSIL ITARSI (MADHYA PRADESH)
3. SHAMSHUNNISHA W/O MANZOOR KHAN, AGED
ABOUT 42 YEARS, NEAR BUS STAND,
SHOBHAPUR, TEH.SOHAGPUR,
DISTT.HOSHANGABAD (MADHYA PRADESH)
4. ZEBUNNISHA W/O SAMI KHAN, AGED ABOUT 45
YEAR S , INFRONT OF IMAMBADA, BALAGANJ,
DISTT.HOSHANGABAD (MADHYA PRADESH)
5. ASMUNNISHA W/O AKRAM KHAN, AGED ABOUT
35 YEARS, TAJ TIMBAR MART, PARASIYA ROAD,
DISTT.CHHINDWARA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANOJ KUMAR SANGHI - ADVOCATE)
This appeal coming on for admission this day, th e court passed the
following:
Signature Not Verified
ORDER
Signed by: PRASHANT
BAGJILEWALE
Signing time: 3/6/2024
10:46:45 AM
This misc. appeal has been preferred by the appellant/defendant-Smt.
Anisa Bi challenging judgment and decree of remand dated 30.09.2008 passed
by Addl. Judge to the Court of 4th Addl. District Judge, Fast Track Court,
Hoshangabad in civil appeal no.10-A/2008 reversing the judgment and decree
dated 26.10.2007 passed by Civil Judge Class-II, Pipariya in Civil Suit No.16-
A/2005, whereby matter has been remanded to trial Court for decision of civil
suit afresh after impleadment of son and daughter of defendant- Smt.Anisa Bi
wife of late Aziz Qureshi.
2. Learned counsel for the appellant/defendant submits that a civil suit for
declaration of title and recovery of possession over a part of house having total
area 780 sq. ft. situated in Azad Ward, Piparia was filed by plaintiff/respondent
1 only against appellant/defendant Smt. Anisa Bi, in which by filing written
statement specific objection was raised about non joinder of necessary parties.
It was specifically contended that the plaintiff has not impleaded son and
daughter of Aziz Qureshi and has also not impleaded other successors of
Abdul Majid and despite such objection and despite there being issue no.3
framed by trial Court in that regard, plaintiff did not take care to implead all the
legal representatives of Abdul Majid and Aziz Qureshi, resultantly trial Court
while dismissing the civil suit on 28.02.2006 decided the issue no.3 specifically
against the plaintiff. He submits that upon filing civil appeal no.15-A/2006, an
application under Order 1 rule 10 CPC was filed with the prayer for
impleadment of daughters of Abdul Majid and by the judgment and decree
dated 27.04.2007 that application was allowed and matter was remanded to trial
Court for decision of civil suit and at this stage also the plaintiff did not take
care to implead the legal representatives of Aziz Qureshi. Again trial Court vide
judgment and decree dated 26.10.2007 decided the civil suit and while deciding
the issue no.3, again dismissed the suit on merits as well as on the ground of
non-joinder of parties i.e. legal heirs of Aziz Qureshi. Learned counsel for the
appellant submits that again upon filing civil appeal no.10-A/2008, the plaintiff
moved an application under Order 1 rule 10 CPC for impleadment of legal heirs
of Aziz Qureshi except Smt.Anisa Bi, which by the impugned judgment of
remand has been allowed and again on the same ground matter has been
remanded for decision of civil suit afresh after impleadment of son and daughter
of Aziz Qureshi and Smt. Anisa Bi. He also submits that this is not the case
where no objection was raised in the written statement and from para 11 of the
impugned judgment itself it is clear that specific objection in respect of non
joinder of all the legal heirs of Aziz Qureshi and Abdul Majid was taken in the
written statement, in respect of which issue no.3 was also framed. As such, it
was duty of the plaintiff to cure the defect at the appropriate stage of the suit
and if the plaintiff did not take care, then his suit deserves to be dismissed for
want of joinder of necessary parties and again and again the plaintiff cannot be
granted opportunity to fill up the lacuane. With these submissions, he prays for
setting aside judgment and decree of remand and for allowing the appeal. In
support of his submissions, he placed reliance on the decision of High Court of
Madras in the case of Govindammal and another vs. K. Velmurugan and others,
2006 (5) CTC 325.
3. Learned counsel appearing for the respondents 1-5 supports the impugned
judgment of remand and prays for dismissal of misc. appeal. He further submits
that on the ground of non-joinder of necessary parties, the suit cannot be
dismissed and first appellate Court has not committed any illegality in allowing
applications under Order 1 rule 10 CPC and under Order 6 Rule 17 CPC and in
remanding the matter to trial Court for fresh decision after giving due
opportunity of hearing to the newly added persons.
4. Heard learned counsel for the parties and perused the record.
5. Although record of trial Court is not available, but the objection raised in
the written statement by defendant Smt. Anisa Bi has been reproduced and
considered by first appellate Court in para 11 of its judgement and has clearly
mentioned that defendant Smt. Anisa Bi in para 15 of her written statement has
taken objection specifically to the effect that the plaintiff has not impleaded son
and daughter of Aziz Qureshi and all the legal heirs of Abdul Majid, therefore, it
is clear that since beginning there was objection in the written statement about
non impleadment of all the legal heirs of Aziz Qureshi and Abdul Majid and on
that basis an issue no.3 has been framed by trial Court.
6. From perusal of first judgment dated 28.02.2006, it is clear that trial Court
while deciding issue no.3 has held that the plaintiff has not impleaded all the
necessary parties and finding the case of the plaintiff not proved, dismissed the
suit on merits as well as on the ground of non-joinder of necessary parties.
Upon filing appeal by plaintiff, first appellate Court vide judgment and decree
dated 27.04.2007 allowed one application under Order 1 rule 10 CPC filed by
the plaintiff and matter was remanded to trial Court for decision of civil suit
afresh. Although after remand daughters of Abdul Majid i.e. respondents 2-5
supported the case of plaintiff but again the civil suit was dismissed by trial
Court vide judgment and decree dated 26.10.2007 by deciding issue no.3
against the plaintiff on the ground of non-joinder of necessary parties, however,
the plaintiff was found to be owner of the property except the area of property
in possession of defendant. Judgment and decree dated 26.10.2007 was
challenged by filing civil appeal no.10-A/2008 in which applications under
Order 1 rule 10 CPC and under Order 6 rule 17 CPC were filed which by the
impugned judgment of remand have been allowed with cost of Rs.2,000/- and
matter has been remanded for deciding the civil suit afresh.
7. Civil suit appears to have been filed on 14.07.2005 in which written
statement was filed by defendant taking specific objection about non joinder of
all the legal heirs of Aziz Qureshi and Abdul Majid, thereupon issue no.3 was
framed by trial Court. It is clear from the record that plaintiff and defendants are
close relatives and all are successors of Abdul Majid, therefore, are well aware
about all the successors of deceased-Abdul Majid and Aziz Qureshi.
8. It is well settled that if even after objection being raised in the written
statement, the plaintiff does not take care to implead the necessary parties and
goes with the trial of suit without such impleadment, then he suffers risk of
dismissal of the suit.
9. In the present case, first opportunity was available with the plaintiff to
implead all the necessary parties immediately after raising objection by the
defendant in the written statement and then upon framing issue no.3 by trial
Court and ultimately upon first remand made by first appellate Court vide
judgment and decree dated 27.04.2007 but the plaintiff did not take care to
implead all the legal representatives of Aziz Qureshi in the suit.
10. As such, in my considered opinion again in the second round i.e. after
dismissal/decision of suit two times by trial Court on the same point vide
judgment and decree dated 28.02.2006 and 26.10.2007, the plaintiff cannot be
permitted to fill up lacunae by filing applications under Order 1 rule 10 CPC and
under Order 6 rule 17 CPC at the appellate stage.
11. As such, the applications under Order 1 rule 10 CPC and under Order 6
rule 17 CPC filed by the plaintiff in the civil appeal deserve to be and are hereby
dismissed and by setting aside the impugned judgment of remand, matter is
remanded to first appellate Court to decide the civil appeal on its own merits
without entertaining any other application for impleadment of the legal heirs of
Aziz Qureshi.
12. With the aforesaid, this misc. appeal is allowed and disposed off.
13. Parties are directed to appear before first appellate Court on 15.04.2024
or on any other prior date, which has already been fixed by first appellate
Court.
14. Pending application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
pb
