Kh. Ningol Ningthemcha Ongbi Thambalnambi Devi vs L. Ningol Leinambi Devi and Others

A.K. Patnaik, J.—This Letters Patent Appeal has been filed against the judgment and order dated 3.3.87 passed by the learned Single Judge in First Appeal No. 20/72. A preliminary point has been raised on behalf of the Respondents that this appeal is not maintainable, which we have to decide before the appeal is taken up for hearing on merits.

The relevants facts for disposal of this preliminary point briefly are that the Appellant Smt. Kh.Ningol Ningthemcha Ongbi Thambalnambi Devi filed Title Suit No. 17/1964/8/1971/38/1971 in forms pauperis for some reliefs in respect of the suit land. In the said suit as many as 37 Defendants were impleaded. The case made out in plaint as regards Defendant Nos. 1 to 6 was that the suit property fell exclusively to the shares of the said Defendants until it was transferred to the Plaintiff by execution of three registered Gift Deeds dated 7.3.54, 8.3.54 and 21.3.54 with delivery of possession and the Plaintiff accepted the said Gift and took possession of the suit land from the date of execution of the said Gift Deeds. The Plaintiff''s case as regards Defendant Nos. 7 to 10 is that the title of the Plaintiff has been clouded by the hostile claim of the Defendant Nos. 7 to 10. Regarding Defendant Nos. 11 to 37, it has been pleaded in the plaint that the said Defendants are possessing the said suit land on behalf of Defendants Nos. 7 to 10 and that Defendant Nos. 8 to 10 had executed registered Sale Deeds in favour of some of the Defendants which were void and were liable to be cancelled. In the said suit, the Plaintiff prayed for declaration of right, title and interest in the said suit land, for adjudging the sale deeds executed by Defendants Nos. 7 to 10 as void, for recovery of possession of the suit land from Defendant Nos. 7 to 37, for mesne profit of the suit land for wrongful possession of the suit land by Defendant Nos. 7 to 37 and for perpetual injunction against Defendants Nos. 7 to 37 restraining them from invading the rights of the Plaintiff to enjoy the suit land, After the trial of the suit, the learned District Judge, Manipur, dismissed the suit by judgment and decree dated 14.7.72. Aggrieved, the Appellant filed First Appeal No. 20/72 before this Court and the learned Single Judge of this Court dismissed the said appeal by judgment and order dated 3.3.1987.

Against the aforesaid judgment and order dated 3.3.87, the present Letters Patent Appeal was presented on 12.6.87 with only Defendant Nos. 7 to 10 as the principal Respondents. In the said appeal Defendant Nos. 1 to 6 and Defendant Nos. 11 to 37 were not impleaded as Respondents. When the appeal was taken by the Division Bench on 16.6.87. Mr. Nilamani Singh, learned Counsel for the Appellant prayed for time to file an application under Order 1 Rule 8, Code of Civil Procedure, which was allowed by the Division Bench but the Division Bench directed issue of notices to the Respondents to show cause as to why the appeal should not be admitted. Pursuant to the said direction, notices appear to have been issued by the office on 30.6.87 and returned after proper service as would be evident from the order sheet. In the meanwhile, an application was presented by the Appellant on 19.6.87 which was numbered as Civil (Misc) Application No. 254/87 in which the Appellant prayed for granting her permission to sue the contesting Defendant Nos. 7 to 10 in their representative capacity as representing their previes and transferees of the suit land namely Defendant Nos. 11 to 37 in the suit under Order 1 Rule 8 and Section 151 CPC and also prayed for striking out the names of Defendant Nos. 1 to 6 who were stated to be merely proforma parties who had not contested the suit, When the said Civil (Misc) Application No. 254/87 was taken up by the Division Bench on 27.7.89 an order was passed that the Civil (Misc) Application would be posted after service of notices on the Respondents of the appeal. The appeal was thereafter taken up for admission on 12.9.89 by the Division Bench and the Division Bench directed that the appeal shall be heard and allowed the prayer of the Appellant to issue notices on the main Respondents. More than a year thereafter when the aforesaid Civil (Misc) Application No. 254/87 was placed before the Division Bench on 21.11.90. Mr. Nilamani Singh, learned Counsel for the Appellant, stated that the Civil (Misc) Application had already been disposed of on 12.9.89 by an order passed in the appeal and accordingly the Division Bench passed orders on 23.11.90 that the Misc. Case be closed. Thereafter, the appeal was listed for hearing but as there was no representation on behalf of the Respondents on 21.11.94, the Division Bench passed an order directing special notice on Respondent Nos. 2, 3 and 4 informing them of the date for hearing, Pursuant to the said order, notices were issued on Respondent Nos. 2, 3 and 4 and in response to the said notices, the Respondents appeared through their Counsel.

When the appeal was taken (sic) for heating by the Division Bench on 15.3.95, Mr. L. Nandakumar Singh, learned Counsel for said Respondents, raised the preliminary point that the appeal has not been properly constituted as necessary parties were not made Respondents. The aforesaid preliminary point was heard initially by the Division Bench on 21 8.95 when Mr. A. Nilmani Singh, learned Counsel for the Appellant, brought to the notice of the Bench the orders passed by the Division Bench on 12.9.89 allowing issue of notices only on the main Respondents and the order passed by the Division Bench on 21.11.90 closing Civil (Misc) Application No. 254/87 on the ground that the application had already been disposed of by the Division Bench on 12.9.89 and submitted that since the Division Bench had in its earlier order dated 12.9.89 and 21.11.90 already allowed the prayer of the Appellant to sue Defendant Nos. 7 to 10 in representative capacity on behalf of Defendant Nos. 12 to 37 as well as the prayer of the Appellant to strike out Defendant Nos. 1 to 6 who were only proforma Defendants, the question that all the Defendants in the suit have not been impleaded as Respondent in the appeal could not be reopened again by the learned Counsel for the Respondents. After hearing the learned Counsel for the parties at length, the Division Bench passed an order on 21.8.95 stating therein that it was of the view that the prayer made under Order 1, Rule 8 CPC by the Appellant could not be granted on the facts Of the present case and referring the matter to the Hon''ble the Chief Justice for constituting an appropriate Bench for deciding the question as to whether during the pendency of the LPA an application filed by the Appellant under Order 1, Rule 8 CPC to grant him permission to sue the contesting Defendants only for themselves and on behalf of other Defendants in their representative capacity was tenable in law. The appeal was thereafter placed before Hon''ble the Chief Justice who was pleased to direct that the matter be laid before the appropriate Court on 31.7.96. However, a Division Bench presided by Hon''ble the Chief Justice passed orders stating therein that as there was no conflict of decisions of Division Bench of this Court on the question sought to be referred a reference to a larger Bench was not necessary. Thereafter Hon''ble the Chief Justice directed that the matter be posted before this Division Bench on 19.8.96. It is in the background of the aforesaid facts that we have heard the learned Counsel for the parties on the maintainability of the appeal and as to whether the Defendant Nos. 1 to 6 and Defendant Nos. 12 to 37 are required to be impleaded as Respondents in this appeal at this stage.

Mr. L. Nandakumar Singh, learned Counsel for the Respondents, contended that since out of 37 defendents only 4 Defendants, namely Defendant Nos. 7 to 10 have been impleaded as Respondents in the appeal, the appeal is not properly constituted and is liable to be dismissed as not maintainable. He pointed out that, under the provisions of Sub-rule (1) of Order 41, Rule 20, Code of Civil Procedure, all the parties to the suit interested in the appeal are to be impleaded as Respondents and any party to the suit who have not been impleaded as Respondent in the appeal cannot be added after the expiry of the period of limitation for filing the appeal except for reasons to be recorded by the Court as stated in Sub Rule 2 thereof. He relied on the judgment of the Privy Council in the case of AIR 1927 252 (Privy Council) in support of his submission. He also cited the judgment of the Supreme Court in the case of Ch. Surat Singh (Dead) and Others Vs. Manohar Lal and Others, in which the Supreme Court dismissed two Civil Appeals filed before it on the ground that a party who had been impleaded as Respondent in the appeal before the High Court out of which the Civil Appeals arose had not been impleaded in the two Civil Appeals and the Supreme Court did not permit adding of the said parties as Respondents in the said two Civil Appeals at a belated stage. Mr. Nandakumar Singh also relied on the decisions of the Kerala High Court in the case of Narayana Pillai Gopala Pillai and Another Vs. Krishna Pillai Chellappan Pillai, and in the case of Ammukutty Amma and Another Vs. Madhavi Amma, and the decision of the Andhra Pradesh Hight Court in the case of Palacheria Ananda and Anr. V. Mallipudi Acharyulu and Anr. AIR 1958 AP 743 in support of his submission that all the Defendants in the suit ought to have been impleaded as Respondents in the appeal and could not be added after the right of appeal against them had become barred by limitation, Mr. Nandakumar Singh further submitted that Defendant Nos. 1 to 6 and 11 to 37 were necessary parties without which the appeal could not be decided and he cited the judgment of the Allahabad High Court in the case of Shitladin and Others Vs. Board of Revenue, Uttar Pradesh Allahabad and Others, in support of his submission that the said Defendants Nos. 1 to 6 and 12 to 37 were necessary parties to the suit as well as in the appeal could not be decided in their absence.

Mr. A. Nilomani Singh, learned Counsel for the Appellant, on the other hand reiterated that by the order dated 12.9.89 passed in the appeal and the order dated 21.11.90 passed in the Civil (Misc) Application No. 254/87, the Division Bench of this Court has already allowed the prayer of the Appellant to sue Defendant Nos. 7 to 11 on their behalf as well as on behalf of the Defendant Nos. 12 to 37 in representative capacity under Order 1, Rule 8 CPC and has also allowed the prayer of the Appellant to strike out the proforma Defendants Nos. 1 to 6 from the present appeal, Mr. Nilomani Singh further pointed out that the aforesaid orders dated 12.9.89 and 21.11.90 were passed by the Division Bench after notices were served on the Respondents (Defendant Nos. 7 to 10) in the year 1987 pursuant to order dated 16.6.87 of the Division Bench. Despite the said notices, the Respondents did not appear before this Court and raise any objection regarding non-joinder of necessary parties in the appeal. He cited the judgment of the Supreme Court in the case of Sri Ram Pasricha Vs. Jagannath and Others, wherein it has been held that a plea relating to non-joinder of necessary parties should be raised at the earliest occasion and submitted that the Respondents not having raised the said plea after receiving notices in the year 1987, cannot at this belated stage raise the plea that the appeal was not maintainable on the ground of non-joinder of necessary parties, According to Mr. Nilomani Singh, therefore, the question regarding non-joinder of necessary parties in this appeal having been closed by the Division Bench in the aforesaid orders dated 12.9.89 and 21.11.90 cannot be reopened at this stage. He further contended that though Defendant Nos. 1 to 6 and 11 to 37 had put in their written statements, they did not really contest the suit as they did not lead any residence in the trial. Similarly, the said Defendant Nos. 1 to 6 and 12 to 37, though made Respondents in the first appeal before the learned Single Judge of this Court, could not appear in the said appeal pursuant to notices issued by the Court and did not contest the appeal. He further argued that Defendant Nos. 11 to 37 had not led any evidence in the trial of the suit showing that any sale deed was executed in their favour by Defendant Nos. 7 to 10 in respect of any portion of the suit land that the said Defendant Nos. 11 to 37 are at best claiming possession of the portion of the suit land under Defendant Nos. 7 to 10 as their tenants. On there facts, Defendant Nos. 11 to 37 were privies to Defendant Nos. 7 to 10 and the said Defendants Nos. 7 to 10 could be sued in their representative capacity not only on their behalf but also on behalf of the Defendant Nos.11 to 37 under Order 1, Rule 8 Code of Civil Procedure. Mr. Nilomani Singh also submitted that at any rate Defendant Nos. 1 to 6 and 11 to 37 were not necessary parties and in support of his said submissions he relied on the judgments of the Supreme Court in the case of Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain and Others, State Bank of India Vs. Ramkrishna Pandurang Barve and anothers, and Ramesh Hirananda Kudanmal v. Municipal Corporation of Greater Bombay and Ors. (1992) 2 SCJ 149. He argued that the said Defendant Nos. 1 to 6 and 11 to 37 not being necessary parties, the appeal could not be dismissed for non-joinder of the said defendents as Order 1, Rule 8 CPC makes it clear that the suit shall not be defeated by reason of non-joinder of parties unless the parties who have not been joined are necessary partics. Finally, Mr. Nilomani Singh contended that if the Appellant has chosen not to implead the said Defendant Nos. 1 to 6 and 11 to 37 as Respondents in the appeal, she has done so at her own risk and the decree passed in this appeal may not be executable against the said Defendants, but the appeal against the Defendant Nos. 7 to 10 cannot be dismissed on the ground that the said Defendant Nos. 1 to 6 and 11 to 37 have not been impleaded as Respondents in the appeal.

Order 41, Rule 20 Code of Civil Procedure, which is relevant for the purpose of deciding the present controversy between the parties is quoted herein below:

Power to adjourn hewing and direct persons appearing interested to be made Respondents - (1) Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a Respondent.

(2) No Respondent shall be added under this rule, after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms to costs as it thinks fit.

Sub-rule (1) of Order 41 Rule 20 Code of Civil Procedure, quoted above shows that it is only a party to the suit who is interested in the result of the appeal but has not been impleaded as a Respondent who can be added by the Court as a Respondent, in the case of Chockalingam v. Seethal Ache and Ors. (supra) cited by Mr. L. Nandakumar Singh, the Privy Council interpreting Order 41, Rule 20 CPC held:

The addition of a Respondent whom the Appellant has not made a party to the appeal is expressly dealt with in Order 41 Rule 20 on which the Plaintiff relied, both, in the appellate Court and before their Lordships. The rule empowers the Court, to make such party a Respondent when it appears to the Court that he is interested in the result of the appeal.

Giving these words their natural meaning and they cannot be disregarded it seems impossible to say that in this case the Defendants against whom these suits have been dismissed, and as against whom the right of appeal has become barred, are interested in the result of the appeal filed by the Plaintiff against the order Defendants.

It was for the Plaintiff-Appellant, who applied to the Court to exercise its powers under this rule, to show what was the nature of their interest and this he has failed to do (emphasis supplied).

It is thus clear from the aforesaid decision of the Privy Counsel that in the facts of some cases when a suit has been dismissed against the Defendants and the appeal has been filed within the period of limitation as against some of the Defendants, the Defendants against whom the appeal has not been filed and against whom ight of appeal has become barred by limitation are not interested in the result of the appeal filed by the Appellant against other Defendants.

Coming to the facts of the present appeal, so far as the Defendant Nos. l to 6 are concerned, the Plaintiff-Appellant did not implead the said Defendants as Respondents in the present appeal at the time of filing the appeal and instead made a prayer before this Court in Civil (Misc) Application No. 254/87 that the names of the said Defendant Nos. 1 to 6 be struck off on the ground that they were merely proforma Defendants, and according to Mr. A. Nilomani Singh, learned Counsel for the Appellants, the said prayer of the Appellants was allowed by order dated 12.9.89 passed in the appeal and by order dated 21,11.90 passed in the said Civil (Misc) Application No. 254/87. The result is that no appeal as such was filed by the Plaintiff-Appellant against Defendants Nos. 1 to 6 and by expiry of the period of limitation for filing the appeal against the said Defendant Nos. 1 to 6, the dismissal of the suit against the said Defendants by the first appellate Court has become final and the said Defendant Nos. 1 to 6 as per the aforesaid decision of the Privy Council cannot be held to be parties interested in the result of the appeal against Defendant Nos. 7 to 10. The said Defendants No. 1 to 6 may still have been necessary parties to the appeal, if the right, title and interest of the Respondents was derived from the said Defendants No. 1 to 6, but the Respondents (Defendants No. 7 to 10) have made out no such case in their written statement filed in the suit. On the facts of the present case therefore we are of the considered opinion that Defendants No. 1 to 6 are not necessary parties in this appeal against the Defendants No. 7 to 10.

But so far as Defendants No. 11 to 37 are concerned, it is not as if the Appellant did not intend to pursue this appeal against the said Defendants. Soon after the presentation of the present appeal on 15.6.87, the Appellant made a prayer before this Court in Civil (Misc) Application No. 254/89 for permission to sue the said Defendant Nos. 7 to 10 not only on their behalf but also in their representative capacity on behalf of the said Defendant Nos. 11 to 37 under Order 1, Rule 8 CPC and according to Mr. A. Nilomani Singh, learned Counsel for the Appellant, the said prayer of the Appellant was allowed by the Division Bench by order dated 12.9.89 passed in the appeal and by order dated 21.11.90 passed in Civil (Misc) Application No. 254/87. Order 1, Rule 8 CPC is extracted herein below:

One person may sue or defend on behalf of all in same interest (1) Where there are numerous persons having the same interest in one suit -

(a) One or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested:

(b) The Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on bealf of, or for the benefit of, all persons so interested.

(2) The Court shall, in every case where a permission or direction is given under Sub-rule (1), at the Plaintiff''s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is act reasonably practicable, by public advertisement, as the Court in each case may direct.

(3) Any person on whose behalf, or, for whose benefit, a suit is inserted or defended, under Sub-rule (1), may apply to the Court to be made a party to such suit.

(4) No part of the claim in any such suit shall be abandoned under Sub-rule (1), and no such suit shall be withdrawn under Sub-rule (3), of Rule 1 of Order X XIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order, unless the Court has given, at the Plaintiffs expense, notice of all persons so interested in the manner specified in Sub-rule (2).

(5) Where any person suing or defending in any such suit does not proceed with due deligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.

(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.

Explanation - For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.

We have grave doubts as to whether the aforesaid provisions of Order 1 Rule 8 CPC could be invoked to allow Defendant Nos. 7 to 10 to be sued in their representative capacity on behalf of Defendant Nos. 11 to 37 and as to whether by the orders dated 12.9.89 and 21.11.89, the Division Bench actually permitted the Appellant to sue Defendants No. 7 to 10 on behalf of Defendants No. 11 to 37 in their representative capacity as contended by Mr. Nilomani Singh. Assuming, however, that the said provisions of Order 1, Rule 8 CPC could be so invoked and the prayer of the Appellant to sue Defendant Nos. 7 to 10 in their representative capacity on behalf of the Defendant Nos. 11 to 37 was allowed by orders dated 12.9.89 and 21. 11 .90 of the Division Bench any decree passed in the appeal shall be binding on the said Defendants No. 11 to 37 by virtue of what is provided in Sub-rule 6 of Order 8 Rule 1 CPC and the said Defendants therefore are parties interested in the result of this appeal Sub-rule (2) of Order 1, Rule and CPC further makes it clear that in every case in which permission is granted by the Court for suing a Defendant on behalf of other persons interested, the Court is under an obligation to give notice of the institution of the suit to all the persons so interested either by personal service or if such service is not reasonably practicable, by public advertisement. But in the present case, it does not appear from the records that such notices were issued under Sub-rule (2) of Order 1 Rule 8 CPC to Defendant Nos. 11 to 37. Thus, the practical consequence of accepting the position taken by Mr. Nilomani Singh that the prayer of the Appellant to permit the Plaintiff-Appellant to sue Defendant Nos. 7 to 10 not only on their behalf but also on behalf of Defendant Nos. 11 to 37 was allowed by the Division Bench on 12.9.89 and 21.11.90 would be that before hearing the appeal on merits, the Court would have to give notice of the institution of the appeal to the said Defendant Nos. 11 to 37 in accordance with Sub-rule (2) of Order l, Rule 8 Code of Civil Procedure.

Coming now to the alternative argument of Mr. Nilomani Singh, learned Counsel for the Appellant, that even other-wise Defendant Nos. 11 to 37 were not necessary parties and, therefore, not parties interested in the result of the appeal, we find that the Plaintiffs own case in the plaint is that the said Defendant Nos. 11 to 37 are in possession of a portion of the suit land and the Plaintiff has claimed relief in the suit for recovery of possession and for mesne profit for wrongful possession and for a perpetual injunction not only against Defendants No. 7 to 10 but also against the said Defendants No. 11 to 37. In the case of Ramesh HiranandaKundarmal (supra) cited by Mr. Nilomani Singh, the Supreme Court has held that for being a necessary party, the person must be directly and legally interested in the action i.e. the litigation may lead to a result which will affect him legally by curtailing his legal rights. Applying the aforesaid test, we are of the view that Defendants No. 11 to 37 who are in possession of a portion of the suit land may be affected in the enjoyment of their legal rights by any decree that this Court may pass in this appeal for recovery of possession, mesne profit, perpetual injunction and hence the said Defendants are necessary parties and are interested in the result of the appeal. The appeal therefore cannot be heard and decided in their absence. In either view of the matter, therefore, notice of this appeal has to be given to the said Defendants No. 11 to 37 before hearing of the appeal on merits is taken up by the Court.

Faced with the difficulty of serving notices on Defendants No. 11 to 37 whose whereabouts are not now dully known to the Appellants, Mr. Nilomani Singh, learned Counsel made a statements that in the event the Court takes the view that notices will have to be served on the said Defendants, the Plaintiff-Appellant would under Order 23 Rule 1 CPC abandon her claim in the suit against the said Defendants No. 11 to 37 and the Appellant has filed an application on 29.8.96 making such prayer under Order 23 Rule 1 Code of Civil Procedure. Mr. L.N.K. Singh, learned Counsel for the Respondents, however, submitted that such prayer of the Appellant for abandoning her claim against the said Defendant Nos. 11 to 37 cannot be allowed at this stage. We fail to appreciate as to how the Respondents can oppose the said prayer of the Appellant. The prayer of the Appellant for abandoning her claim against Defendant Nos. 11 to 37 in the suit is thus allowed. The result is that the said Defendant Nos. 11 to 37 would no longer be affected by any decree that may be passed in the present appeal and are no longer parties interested in the result of the appeal.