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Judgment
The Plaintiff was the sole appellant. Pending second appeal she died and her legal representatives have come on record as appellants 2 and 3.
She filed suit O.S.No.274/83 before the District Munsif''s Court, Devakottai, for recovery of Rs.7102.51 due from the respondents on the
following averments:
The first respondent''s father one Ramanathan Chettiar and his brother were doing banking business in penang with head quarters at Karaikudi.
The first appellant had deposited various amounts with the first respondent''s father commencing from 17.10.1959 and on the date of the filing of
the suit, it had augmented to 3977.41 Malaysian Dollars. The said Ramanathan Chettiar had forwarded a deposit letter dated 18.10.1959 with an
agreement to pay higher interest than what was payable at Penang. Ramanathan Chettiar died in or about August, 1982 and his legal
representatives, the present respondents, were liable to answer the suit claim, in that they had succeeded to the estate of Ramanathan Chettiar.
The first respondent filed a written statement alleging that he had no knowledge about the deposit having been made by the appellant with
Ramanathan Chettiar at Karaikudi as there was no branch of the banking business firm at Karaikudi, that till the death of Ramanathan Chettiar both
Ramanathan Chettiar and Lakshmanan Chettiar were running the banking business, that it was not a joint family business, that since Lakshmanan
Chettiar had not been made a party to the proceedings, the suit was bad for non-joinder of parties. It was further alleged that the civil court at
Devakottai had no jurisdiction to entertain the suit, in that the contract was entered into at Penang and there was no cause of action in India at
Devakottai. The third and the fourth respondents filed a written statement alleging that they were not partners of the business of the firm run at
Penang, that they did not possess any assets of the firm run by Ramanathan Chettiar and Lakshmanan Chettiar and that they were not liable to
answer the claim of the appellant as heirs of deceased Ramanathan Chettiar.
3 The trial court framed the necessary issues and on the oral and the documentary evidence, held that there was no proof of deposit having been
made with the said Ramanathan Chettiar, that they cause of action had partly arisen at devakottai and therefore the Civil Court at Devakottai had
jurisdiction to entertain the suit, that the suit was bad for non-joinder of necessary parties, in that the sister of the first respondent one Amirthavalli
Achi had not been joined as a party in the suit and so holding the trial court dismissed the suit by judgment and decree dated 31.7.1984. On
appeal by the appellant/plaintiff in A.S.No. 31 of 85 to the Sub Court, Devakottai, the lower Appellate Court reversed the finding of the trial court
with regard to all the issues except on the issue relating to non- joinder of necessary parties. In that view, the lower Appellate Court though found
in favour of the appellant on the merits of the case, dismissed the appeal.
Aggrieved, the present second appeal has been filed. At the time of admission the following substantial questions of law were framed for
decisions in the second appeal:
(1) Have not the courts below misdirected themselves in law in misconstruing and misinterpreting the provisions of Order I Rules 1 to 4 of the
CPC and in declaring that the suit was liable to be dismissed for non-joinder of Amirthavalli Achi?
(2) Have not the courts below misdirected themselves in law in dismissing the suit for non-joinder of Amirthavalli Achi, which plea was not raised
by the defendants in their written statement and no issue as to the non-joinder of Amirthavalli Achi, which was fatal to the suit, was framed by the
trial court and
(3) Have not the courts below misdirected themselves in law in their failure to grant a decree against such of those partners who have been added
as the defendants and who apply represented the estates of deceased Rama-nathan Chettiar and who are in law entitled to satisfy the claim of the
appellant/plaintiff in respect of the suit transaction?
Mr.N. Subramanian representing the appellants referred to the pleadings in the case and in particular, to the absence of specific averment in the
written statements with regard to the existence of Amirthavalli Achi as on her to late Ramanathan Chettiar and submitted that in view of the
provisions of Order 1, Rule 13 of the Code of Civil procedure, it must be held that the defendants/respondents had waived the plea with regard to
non- joinder of necessary parties and therefore, the appellants would be entitled to a decree in the suit particularly when on merits the lower
Appellate Court had held in favour of the appellant.
Per contra, Mr.T.V. Sivakumar, learned Counsel representing Mr. Maninarayanan for the respondents, that the plea indeed had been raised
with regard to the non-joinder of parties and it could not be contended that the appellant would be entitled to invoke Order 1, Rule 13 and seek a
decree. The learned Counsel further admitted that under Order 41, Rule 22 the respondents were entitled to challenge the findings on other points
by the lower Appellate Court on merits without filing on independent appeal or cross-objections. According to the learned Counsel, the findings
reached by the lower Appellate Court with regard to the deposit, the jurisdiction and the non-joinder of Lakshmanan Chettiar are erroneous and
have to be set aside and those of the trial court restored.
Let us first have a look at the averments in the written statements with regard to the non-joinder of the necessary parties. It is stated in the
written statements that the suit is bad for non-joinder of parties and there is specific reference to the non-impleading of Lakshmanan Chettiar.
There is no reference whatsoever to the non-joinder of Amirthavalli Achi. Under Order 8, Rule 2 of the Code of Civil Procedure, it is incumbent
on the contesting defendants to raise all matters which show the suit to be not maintainable. A mere vague statement that the suit is not maintainable
for non-joinder of necessary parties does not tantamount to taking up a specific plea that a particular necessary party had not been added as a
party for which the suit should go. As already adverted to, there is no specific plea in the written statements that non-joinder of Amirthavalli Achi
was fatal to the case. The only reference to any party in the written statements on the question of non-joinder is to Lakshmanan Chettiar. By no
stretch of imagination can it be contended that a mere averment in the written statements without being specific that the suit is bad for non-joinder
of party, by itself is sufficient.
In this connection, the learned Counsel Mr.R. Subramanian relied on the following decisions:
In Meghavaranam v. md. Mohideen Sahib, AIR 1936 Mad. 782 it has been held that,
if the defendants wish to object to a suit on the ground of non-joinder of parties, it is incumbent upon them to state who are the parties that should
have been joined and what is the nature of their interest in the suit and that it is not incumbent on the plaintiffs to make researches to discover the
identity of supplemental defendants who were not necessary at any rate until the defendants raising the objections, had given such information as
would enable the plaintiffs to implead them and further that it is not necessary for the plaintiffs to take the trouble themselves by serving
interrogatories upon the defendants to ascertain the names of possible supplemental defendants.
In Tarapada Mandal and Another Vs. Hajia Khatum Bibi and Another, it has been held that,
where a written statement merely rests content with the statement that the suit is bad for defect of parties without giving any reason as to why it is
bad for defect of parties and the point is not specifically raised therein, the defect, if any, on this ground should not be allowed to defeat the whole
suit.
In Laxmishankar Harishankar Bhatt Vs. Yashram Vasta (dead) by L.Rs., it has been held by the Supreme Court that,
a vague statement that there were other co-owners without anything further could hardly be sufficient to non-suit a party on the ground of non-
joinder of parties.
In Lakhi Prasad Fogla Vs. Murlidhar Marwari and Others, it has been held that,
all objections on the ground of non-joinder or mis- joinder of parties should be taken at the earliest opportunity or at least at the time of settlement
of issues or before such settlement and in the absence of such objection raised at the earliest opportunity, it must be deemed that the non-joinder of
a party had been waived.
To the identical effect is the decision of the same High Court in Ramsurat Devi v. Satraji Kuer, AIR 1975 Pat. 168. It has been further held in
that case that a plea not raised in pleadings cannot be cured by evidence.
Order 1, Rule 9 of the CPC runs as follows:
No suit shall be defeated by reason of the 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.
Provided that nothing in this rule shall apply to non- joinder of a necessary party.
Order 1 Rule 13 provides that,
all objections on the ground of non-joinder or mis-joinder of parties should be taken at the earliest possible opportunity and in all cases where
issues are settled at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be
deemed to have been waived.
The objection regarding the non-joinder of Amirthavalli Achi not having been specifically taken in the written statements, it should be deemed that
the said objections had been waived.
It has been held in State of Orissa Vs. Shyam Sundar Panigrahi, that,
Where a necessary parties is not impleaded, the objection, even if not taken in the trial court, cannot be said to be waived and that it could be
raised even at the stage of revision
However, the Bombay High Court has taken a different view in Y.G. Chavan v. Parvatibai, 74 Bom.L.R. 845 and has observed that,
an objection on the grounds of non-joinder would be raised only in cases in which it would be fatal to the maintainability of the suit. If a party who
has not not been joined in a suit is merely a proper party as distinguished from a necessary party, it would be futile to raise any objection of the
nature contemplated by Order 1, Rule 13 of the code of Civil Procedure. Such on objection would never be raised because in view of the
provisions of Order 1 Rule 9 it would not be fatal and the Court could always proceed with the suit in regard to the rights and interests of the
parties actually before it.
The reasoning of the Bombay High Court in the above mentioned case appears to me to be more logical and I respectively follow the same.
In the instant case, the non-joinder of Amirthavalli Achi has not been raised in the written statements and it must be held that the defence has
been waived by the contesting respondents.
Once we steer clear of this aspect, then the dismissal of the appeal by the lower Appellate Court on this solitary ground cannot be sustained,
and the appeal has necessarily to succeed. However, this will be subject to the decision on the other points raised by the learned Counsel for the
contesting respondents.
The submissions of Mr. Sivakumar, learned Counsel for the contesting respondents, have already been noticed. According to him, deposit at
Karaikudi has not been substantiated by the appellant. There are enough materials produced in the case to show that the deposit was at Karaikudi
and that the deceased Ramanathan Chettiar had on several occasions committed himself about the liability under the deposit letter. The factual
finding on this has been rightly reversed by the lower Appellate Court. The lower Appellate Court, on the basis of Ex.A-2 to A-4 has held that as
per the appellant''s evidence and pleading Ex.A-1 deposit letter had been written at Penang and delivered to the appellant at Karaikudi. The lower
Appellate Court has also chosen to accept Exs. A-5 to A-15 as evidencing payment by Ramanathan on the various dates to the appellant towards
the deposit letter. The conclusions reached by the trial court regarding the cause of action and jurisdiction had been rightly reversed by the lower
Appellate Court and as already stated, the only ground on which the lower Appellate Court rejected the case of the appellant was that the
appellant had not chosen to implead Amirthavalli Achi in spite of her existence having been brought out in the oral evidence. Inasmuch as it has
been held that the contesting respondents must be deemed to have waived the question relating to non-joinder of Amirthavalli Achi, the only
obstacle in the way of decreeing the suit stands removed.
Consequently, all the substantial questions of law raised in the Second sappeal for decision are answered in favour of the appellates and the
second appeal is allowed. The judgments and decrees of the courts below are set aside and the suit O.S.No. 274 of 83 on the file of the District
Munsif, Devakottai, will stand decreed as prayed for. There will be no order as to costs, in the second appeal.