Madhya Pradesh High Court
Brij Kishore vs Madan Singh on 29 August, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:19712
1 WP-615-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AMIT SETH
ON THE 29th OF AUGUST, 2025
WRIT PETITION No. 615 of 2025
BRIJ KISHORE AND OTHERS
Versus
MADAN SINGH AND OTHERS
Appearance:
Shri Akshay Khandelwal - Advocate for the petitioners.
Shri Rohit Batham - Advocate for the respondent No.5.
Shri Prakash Chandra Chandil- Advocate for the respondent No.6.
Shri Kaushlendra Singh Tomar - Govt. Advocate for respondent No. 8
and 9.
ORDER
With the consent of the parties, the matter is heard finally.
2.The instant petition was initially filed as M.P. No.1296/2023
subsequently vide order dated 19.12.2024, the same was permitted to be
converted into the writ petition and thereafter the instant writ petition has
been registered.
3. The instant writ petition takes exception to the order dated
19.01.2024 passed by the Additional Collector, Gwalior whereby, the
revision preferred by the respondent No.1 challenging the order dated
01.05.2023 passed by the SDO (Revenue) Morar, District Gwalior in Appeal
No.0030/22-23/Appeal has been allowed and the pending appeal before the
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SDO has been dismissed.
4. The facts leading to filing of this petition are as under:-
The respondents herein moved an application under Section 178 of the
MPLRC seeking partition of lands as mentioned in the said application. The
aforesaid application came to be allowed vide order dated 23.03.2022 passed
by the Additional Tehsildar Circle Badagaon, Tehsil Morar, District Gwalior.
The petitioners herein who contended to be having some share in the said
property were not heard while passing the order dated 23.03.2022 and
therefore, they moved an appeal against the order dated 23.03.2022 before
the SDO wherein, an objection came to be filed by few of the respondents
under Order 1 Rule 9 CPC contending that all persons who were parties
before the Tehsildar have not been impleaded as respondents in the appeal
and therefore, the appeal deserves dismissal.
The petitioners herein moved an application under Order 1 Rule 10
CPC for impleadment of the left over parties as respondents in the pending
appeal. The said application filed by the petitioners herein came to be
allowed vide order dated 01.05.2023 and the left over respondents were
permitted to be impleaded. The said order dated 1.5.2023 was challenged by
the respondent No.1 herein in revision before the Additional Collector,
Gwalior, who allowed the revision filed by the respondent No.1 and passed
the order dated 19.1.2024 thereby setting aside the order dated 01.05.2023
and thereby dismissing the appeal itself preferred by the petitioners herein. It
is this order which is under challenge in the instant writ petition.
5. The learned counsel appearing for the petitioners raises a solitary
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contention that the defect of non-joinder of party is a curable defect, the
same would not entail dismissal of the appeal in its entirety. Even otherwise,
he submits that the defect already stood cured by the impleadment of the
necessary parties and therefore, the hyper-techical approach ought not to
have been applied by the Additional Collector, Gwalior while passing order
dated 19.01.2024. In support of his contention, the learned counsel appearing
for the petitioners relies upon the judgment of the Hon'ble Supreme Court in
the case of Kuldeep Kumar Dubey & Ors. vs. Ramesh Chandra Goyal (dead)
through Legal Representatives, (2015) 3 SCC 525 by referring to para 9 and
10 and the judgment in the case of Savita Garg (Smt.) vs. Director, National
Heart Institute, (2004) 8 SCC 56 by referring to para 9. Accordingly, prayer
is made for quashing of the order dated 19.01.2024.
6. The learned counsel appearing for the respondents opposes the writ
petition and submits that the order dated 19.01.2024 does not suffer from any
illegality. The petition deserves to be dismissed.
7. No other point has been pressed by the learned counsel for the
parties.
8. Heard learned counsel for the parties and perused the record as well
as the order dated 19.01.2024 in the present writ petition.
9. The Hon'ble Supreme Court in the case of Kuldeep Kumar Dubey
(supra) has held as under:
"9. The learned counsel for the appellants submitted that it is
undisputed that appellants Nos.1 and 2 are the sole owners of the
property in question. It is not disputed that they were substituted as
plaintiffs on the death of Shiv Kumar before the trial Court itself. It is
also not disputed that they could maintain the suit for eviction. Thus
on admitted facts, only defect pointed out is of formal nature in
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description without, in any manner, affecting the merits or the
jurisdiction of the Court. Such irregularity could have been corrected
by the Court under Order 1 Rule 10 and can be corrected even at this
stage unless the defendant is in any manner prejudiced. No principle or
authority has been brought to our notice which could affect the
maintainability of the suit merely on account of wrong description
which did not in any manner cause prejudice to the defendant,
particularly when no such objection is shown to have been raised
before the trial Court.
10. In our view, the District Judge is, thus, not justified in reversing
the decree of the trial Court on such a technicality which did not in any
manner affect the merits of the case. Section 99 of the Code of Civil
Procedure, 1908 provides as under :
"99. No decree to be reversed or modified for error or irregularity not
affecting merits or jurisdiction:-No decree shall be reversed or
substantially varied, nor shall any case be remanded, in appeal on
account of any misjoinder or non-joinder of parties or causes of action
or any error, defect or irregularity in any proceedings in the suit, not
affecting the merits of the case or the jurisdiction of the Court:
Provided that nothing in this section shall apply to non-joinder of a
necessary party.
10. Similar view has been taken by the Hon'ble Supreme Court in the
case of Savita Garg (supra) and para 9 whereof reads as under:-
"9.So far as the filing of complaint directly before the Commission
because of higher valuation, the procedures laid down in Rule 14 of
the Rules have to be followed and in that case, the name of the
opposite party has to be given so far as they can be ascertained. In the
present case, the appellant filed original petition impleading the
Institute where her husband was admitted as a party but she did not
implead the treating doctors and nurses who were attending on her
husband. Though the Commission directed that necessary parties may
be impleaded and it appears that no effort was made to implead the
treating surgeon or the nursing staff as a party. Therefore, the question
is whether non-impleading the treating surgeon or a nursing staff can
be said to be necessary party and if they are not impleaded then in that
case, the original petition can result into dismissal on account of non-
joinder of necessary party. So far as the law with regard to the non-
joinder of necessary party under Code of Civil Procedure, Order 1
Rule 9 and Order 1 Rule 10 of the CPC there also even no suit shall
fail because of mis-joinder or non-joinder of parties. It can proceed
against the persons who are parties before the Court. Even the Court
has the power under Order 1 Rule 10(4) to give direction to implead a
person who is a necessary party. Therefore, even if after the direction
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given by the Commission the concerned doctor and the nursing staff
who were looking after the deceased A.K.Garg have not been
impleaded as opposite parties it can not result in dismissal of the
original petition as a whole."
11. The order impugned in the instant writ petition when tested on the
anvil of the aforesaid proposition laid down by the Hon'ble Supreme Court,
cannot be given the stamp of approval. The defect of non-joinder of a party
could not have entailed dismissal of the appeal preferred by the petitioners in
its entirety. Accordingly, the impugned order dated 19.01.2024 stands
quashed. The writ petition is allowed and the appeal is restored to its original
number before the SDO (Revenue) Morar for its adjudication on merits.
12. With the aforesaid, the petition stands allowed and disposed of.
No order as to cost.
(AMIT SETH)
JUDGE
Van
