Roopchand vs Babulal and Others

K.K. Lahoti, J.

Appellant filed a suit challenging the finding of Registrar, Public Trusts, Sagar u/s 8 of M.P. Public Trusts Act, 1951 (hereinafter referred to as ''Act'' for short). The aforesaid suit was dismissed by the Trial Court on merit. The Trial Court also considered that the suit was filed without impleading State of M.P. and serving notice u/s 80 of CPC.

Aggrieved by the judgment and decree of Trial Court, plaintiff filed an appeal. Before the Appellate Court, appellant filed two applications, one under Order 1 Rule 10, CPC, to implead State of M.P. and Registrar, Public Trusts, Sagar as defendant Nos. 2 and 3 and another application under Order 41 Rule 27, CPC, by which permission was sought of to file notice issued to the State and Registrar, Public Trusts, Sagar u/s 80, CPC, alongwith postal and acknowledgment receipts. The aforesaid applications were contested by defendant/respondent No. 1. These applications were considered by the impugned order. The Lower Appellate Court by the impugned order dismissed the appeal, aggrieved by which present appeal was filed.

This appeal was admitted on 30-8-1988 on the following substantial questions of law :--

"(1) Whether the Registrar, Public Trusts was a necessary party and his non-joinder was fatal to the maintainability of the suit ?

(2) Whether failure to give notice u/s 80 of the CPC in a case where the Court itself issues notice to the State through the Registrar is fatal ?"

Learned Counsel appearing for respondents has taken a preliminary objection that before the Lower Appellate Court appellant has not pressed/challenged other issues, while the Trial Court has decided all the issues. The appellant has pressed the issue in respect of non-serving the notice u/s 80, CPC, and non-impleadment of the State as a party. The other issues were not challenged. The contention of respondents is that, even if the aforesaid contention of appellant is accepted, even then this appeal cannot be allowed, because on merit appellant has not challenged the finding of Trial Court, while the Trial Court has dismissed the suit on merits also.

The aforesaid contention raised by learned Counsel for respondents finds support in Para 9 of the impugned judgment, whereas the Appellate Court has recorded a statement that before it the arguments were raised only in respect of issue No. 5, service of notice u/s 80, CPC and non-impleadment of State as party. In view of aforesaid statement recorded by Lower Appellate Court in Para 9 of the judgment, the contention raised by learned Counsel for respondents is substantial.

Learned Counsel appearing for appellant submits that in fact appellant pressed all the grounds and the Appellate Court has wrongly decided only these two questions, while it was the duty of Lower Appellate Court to consider all questions placed before it. In fact at the time of hearing these two issues were material, so arguments were advanced before the Lower Appellate Court but the Appellate Court has not decided other issues. In the alternative, learned Counsel for respondents submitted that the matter may be remitted back to Lower Appellate Court to decide the matter afresh and the appeal filed before Lower Appellate Court be decided on all the issues.

From the perusal of appeal memo filed before this Court and also substantial question of law raised in this appeal, such contention was not raised by appellant before this Court in past. For the first time when the arguments were advanced by learned Counsel for respondents, appellant has taken the above stand.-Even in the appeal memo, appellant has not taken such a stand that appellant challenged the findings in respect of all the issues. Now after a lapse of fourteen years, the appellant has taken the aforesaid ground, which cannot be accepted. The Lower Appellate Court, in view of settled position by Apex Court in State of Maharashtra and Another Vs. Shri Chander Kant, ), that the State of M.P. was necessary party and without serving notice u/s 80, CPC, the suit is not maintainable dismissed the appeal. Though the learned Counsel for appellant has drawn the attention of this Court to Section 8 (2) of the Act and contended that Trial Court has issued notice to the Registrar, Public Trusts on 26-8-1974, but on 5-4-1975 none appeared to answer the aforesaid notice. This shows that the State or Registrar, Public Trusts were not interested to be impleaded as party. Ratio of Shri Chander Kant (supra), is not applicable in this case, as in that case the State was party, but notice was not served u/s 80, CPC. In this case the suit was filed without impleading State and Court had issued notice u/s 8 (2) of the Act, and when the Registrar had not appeared in the case, the Trial Court and Appellate Court erred in dismissing the suit of appellant on this ground. Though the arguments raised by appellant is substantial, but once the Trial Court has dismissed the suit filed by appellant, not only on this ground but also on merits, the appellant was under obligation to challenge all the findings before the Appellate Court, while the Trial Court decided other issues against the appellant.

So far as the contention of the learned Counsel for appellant that this Court should exercise its power under Order 41 Rule 33, CPC, is concerned, it cannot be accepted. The appellant who has chosen not to press other issues before the Lower Appellate Court and has confined his argument only to limited question, then appellant cannot say that the Lower Appellate Court erred in not deciding other issues. It was the wisdom of the appellant to argue his case. Once he has chosen to argue only on one issue, then he cannot be permitted to say that it was the duty of the Appellate Court to consider all other issues. In the circumstances, the appellant cannot invoke the powers under Order 41 Rule 33, CPC in the case.

In the circumstance, even if the contention of appellant is accepted, even then the matter cannot be remitted back to the Trial Court as the other issues have been decided against the appellant and has attained finality because the appellant has not challenged the same.

In view of above, I find no merit in this appeal. The appeal is dismissed with costs.