Gopinath Dixit vs Rama Chandra Dixit and Another

A.S. Naidu, J.—This appeal under Order XLIII, Rule 1 of the CPC has been filed, inter alia, assailing the common judgment dated 20.9.2003 passed by the Civil Judge (Senior Division), Puri in Money Appeal No. 3/3 of 2000/1998 and Title Appeal No. 16/72 of 2001/1998.

By the said judgment the Lower Appellate Court set aside the judgment and decree dated 29.7.1998 and 10.8.1998 respectively passed in Title Suit No. 185 of 1990 and Money Suit No. 80 of 1990 buy the Learned Civil Judge (Junior Division), Puri and remanded both the suits to the Trial Court for fresh trial with a direction to implead the third party-petitioner in Title Suit No. 185 of 1990 and to re-cast the issues consequent upon such the impletion.

Bereft of tall unnecessary details the short facts for appreciating, the inter se disputes are :

The appellant as plaintiff filed T.S. No. 185 of 1990 in the Court of Learned Civil Judge (Junior Division), Puri for a declaration that the plaintiff was the adopted son of the defendant. According to the averments made in the plaint the plaintiff was the natural born son of late Lokanath Mohanty a close relative of the defendant. The defendant had no male issue out of his wedlock with late Taramani Dibya though he was blessed with four daughters. He expressed his desire to adopt the plaintiff, which was accepted by his natural parents since they had four sons including the plaintiff and one daughter. As agreed, on the 21st day of his birth i.e. on 22nd April, 1947, the plaintiff was given in adoption by his natural parents to the defendant as per the prevailing Hindu rites and customs. Necessary ceremonies were performed in token of lawful adoption. After adoption the plaintiff remained in the house of the defendant as his own son, he was admitted in school by the defendant. His adopted parents performed his sacred-thread ceremony and after some years got him married with one Radhamani Devi. For all acts and purposes the plaintiff continued as the son of the defendant and performed all his obligations. It was alleged that after the death of the adoptive mother of the plaintiff, the defendant on being influenced by outsiders started ill-treating the plaintiff and executed a registered Will on 14th September, 1988 acknowledging one Gadadhar Mohapatra, the son of his daughter, as his adopted son: The plaintiff therefore was constrained to file the aforesaid title suit.

The defendant appeared and filed his written statement challenging the maintainability of the title suit and specifically pleaded that the plaintiff had no cause of action to bring the suit. The averments with regard to plaintiff''s adoption by the defendant were stoutly denied so also the averments with regard to the performance of different ceremonies. On the whole in the written statement the defendant strongly repudiated all the averments made in the plaint and alleged that he had, at no point of time, adopted the plaintiff as his son. It was further averred that the plaintiff was the son of the elder sister of the wife of the defendant. After marriage of the plaintiff, disputes cropped up between the plaintiff and his brothers. Finding it difficult to reside in the joint family with his brothers, the plaintiff separated himself from them and requested the defendant to let out a portion of his residential building on monthly rent. The defendant in order to help the plaintiff let out a portion of his house on a monthly rent of Rs. 50/-. Since the plaintiff failed to pay rent the defendant had also filed a Money Suit vide Money Suit No. 80/1990 for realisation of arrear rent from the plaintiff.

It was further pleaded by the defendant that he adopted one Gadadhar Mohapatra and after adoption he executed a Wiil in his favour.

The Trial Court framed as many as five issues. In order to substantiate his case plaintiff got examined eight witnesses and exhibited seven documents. At the other hand, the defendant got examined two witnesses and exhibited three documents. The Trial Court after discussing the evidence, both oral and documentary, came to the conclusion that the plaintiff was the adopted son of the defendant and answered the said issue in favour of the plaintiff and against the defendant. Consequently the title suit was decreed on contest in favour of the plaintiff.

Money Suit No. 80 of 1990 filed by the present respondent-defendant as plaintiff for realisation of rent was dismissed. Challenging the judgment passed in the Money Suit the present respondent-defendant filed Money Appeal No. 3/3 of 2000/1998 and challenging the judgment and decree passed in Title Suit No. 185 of 1990 he filed Title Appeal No. 16/72 of 2001/1998.

During pendency of the aforesaid title Appeal one Gadadhar Dixit claiming to be the adopted son of Rama Chandra Dixit the defendant in the Court below and respondent in this appeal, filed a petition under Order 1, Rule 10 of the CPC to implead him as a party to the appeal. It was inter alia averred that in Title Suit No. 185 of 1990 the plaintiff-appellant had prayed for declaring him as the adopted son of the defendant, and in Para 16 of the plaint the plaintiff averred about the adoption of the petitioner as son of the defendant and execution of a deed of acknowledgment of adoption by the defendant. But then he had not impleaded the petitioner as a party to the suit. It is .further averred that the petitioner who had substantial interest in the litigation had absolutely no knowledge about the suit and he only came to know about the suit after receiving notice in Title Suit No. 202/01 from Court. The Lower Appellate Court after discussing the case of all the parties and after relying upon the averments made in the plaint came to the conclusion that Gadadhar Mohapatra was a necessary party to the suit inasmuch as his rights will be greatly affected by any of the decisions made in the suit. On the basis of such conclusions the Appellate Court set aside the impugned judgment and decree of the Trial Court and remanded the suit for a de novo trial after impleading the said Gadadhar Mohapatra as a party to the suit and by recasting the issues. As stated earlier, the said judgment of the Lower Appellate Court is assailed by the plaintiff in this appeal.

Mr. Susanta Kumar Dash, Learned Counsel appearing for the appellant, forcefully submitted that the Lower Appellate Court acted illegally and with material irregularity in setting aside the judgment and decree passed by the Trial Court and remanding the suit for fresh disposal with a direction to implead the third party petitioner in Title Suit No. 185 of 1990. According to Mr. Das, if the Appellate Court arrived at a conclusion that Gadadhar Mohapatra was a necessary party then for non-impletion of the said person as a party to the suit, the suit should have been dismissed for non-joinder of parties. Even otherwise, in view of the fact that the entire evidence was available, the Appellate Court should have first of all examined as to whether the appeal could have been disposed of on the basis of the evidence available and as to whether the evidence recorded was sufficient to enable the Appellate Court to pronounce its judgment. In consonance with Order 41, Rule 24 of the Civil Procedure Code, the Appellate Court also had the authority to resettle the issues, if necessary and finally decide the appeal, notwithstanding that the judgment of the Court from whose decree the appeal was preferred had proceeded wholly upon some ground other than that on which the Appellate Court proceeded. According to Mr. Das, the Appellate Court did not adopt the aforesaid process and it is a fit case where the Appellate Court should be directed to dispose of the appeal on the basis of the materials available without remanding the suit to the Trial Court.

Mr. P. K. Mohanty, Learned Counsel for the respondents, at the other hand submitted that the conclusions arrived at by the Lower Appellate Court were just and proper and submitted that the judgment of the Appellate Court does not suffer from any infirmity.

I have heard Learned Counsel for the parties at length and have examined the materials available. I have also considered the submissions made meticulously. The suit was one for declaration that the plaintiff was the adopted son of the defendant. In different paragraph of the plaint specifically in Para 18 the plaintiff admitted that the defendant had executed a deed acknowledging the adoption of Gadadhar Mohapatra, son of one Gangadhar Mohapatra as his adopted son and had executed a Will in his favour on 14.9.1988. According to the Learned Counsel for the plaintiff, the cause of action for filing the suit was the said action of the defendant. Thus even according to the plaint the defendant had adopted two persons as adopted sons namely the plaintiff and Gadadhar Mohapatra. Of course the plaintiff challenged the adoption of Gadadhar1 Mohapatra and claimed that he was the only adopted son of the defendant-respondent. For determining this issue Gadadhar Mohapatra was a necessary party to the suit. A reading of Order 1,.Rule 10 of the CPC leads to the conclusion that only where the scope of suit is likely to be enlarged, to an extent not necessary for adjudication to consider the relief sought in the suit, a party may not be necessary to be added, but then where the questions raised by the parties in their respective pleadings reveal that the direct interest of another person is involved in the subject matter of litigation and it would affect the rights of that person, he should be held to be necessary party to the suit and impleaded as such. The principle "dominus litis" will not be applicable to such a case. The word "direct interest" means direct in the issue between the plaintiff and the defendant. That a person is legally interested in the question involved in the suit can be determined if he can show that any decision in the suit shall affect his legal rights. Order 1, Rule 10(2) of the CPC also empowers and authorizes the Court to add any person who ought to have been joined as a party at any stage of the proceedings, either upon or without the application of either party, the only rider is that the Court should be satisfied that presence of such party before the Court would be necessary in order to enable the Court to effectually and completely adjudicate and settle all the questions involved in the suit. To avoid multiplicity of litigation, the Court should exercise such power, if found necessary to meet the ends of justice.

A close reading of the plaint, written statement and other materials available leads to an irresistible conclusion that Gadadhar Mohapatra has a direct interest in the lis and his rights may be affected by any decision and/or conclusion arrived at in the suit and as such he is a necessary party to the litigation. The Appellate Court has rightly set aside the judgment and decree passed by the Trial Court and remanded the suit for fresh disposal with a direction to implead said Gadadhar Mohapatra as a party to the suit. I do not find any infirmity or illegality in the impugned order and decline to interfere with the same. Accordingly, this appeal is dismissed.

The suits are pending since 1990. Fourteen years have passed in the meanwhile. I, therefore, direct the Trial Court to conclude trial of the suits in consonance with the observations made in the judgment passed by the Lower Appellate Court as expeditiously as possible, preferably within a period of six months from the date of communication of this judgment.

Parties to bear their own costs.