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When appeal can be dismissed for non joinder of persons who were parties before lower court?

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)

Civil Revision Application (CRA) No. 106 of 2017

Decided On: 13.04.2018

Gopal Narayandasji Panpaliya
Vs.
Riyaj Patel

Hon’ble Judges/Coram:Manish Pitale, J.

Citation: 2018(6) MHLJ 114

1. Heard. Admit. Heard finally with the consent of learned Counsel appearing on behalf of the respective parties.

2. The question that arises for consideration in this revision application is, as to whether the appeal filed by the respondent against rejection of his application for temporary injunction, without arraying all the defendants as parties in the appeal, was maintainable?

3. The respondent (original plaintiff) filed Special Civil Suit No. 107 of 2016, before the Court of Civil Judge, Senior Division, Amravati (trial Court) seeking a decree of specific performance, declaration, permanent injunction, partition and separate possession. In this suit, the respondent arrayed ten defendants, including the applicants herein who were arrayed as defendant Nos. 5 to 8. The respondent claimed that defendant Nos. 1 and 2 had entered into an agreement with him dated 08.04.2013 in respect of suit property being fields located in Municipal Corporation limits of the City of Amravati and that the consideration agreed between the parties was an amount of rupees 70 lakhs. According to the respondent, he was put in possession of the suit property in pursuance of the said agreement and that he had erected barbed wire fencing around the same. But, according to him, on 16.05.2016, when he was travelling near the suit property, he found that there was construction work of roads and formation of layout in progress in the suit property. Upon enquiry, the respondent claims to have realized that a sale-deed dated 16.12.2015 had been executed in favour of the applicants by defendant Nos. 2, 3, 4 and 9 in respect of the suit property and that he also came to know about two civil suits, on the basis of which the applicants had got executed the said sale-deed in order to grab the suit property. In this backdrop, the respondent had filed the aforesaid suit claiming that he was entitled to decree of specific performance in respect of the aforesaid agreement dated 08.04.2013 and that he was entitled to a decree for declaration that the decree passed in one of the aforesaid civil suits was a nullity and that the aforesaid sale-deed dated 16.12.2015, executed in favour of the applicants was illegal, null and void. A prayer for cancellation of the aforesaid sale-deed was also made in the suit and further prayers for partition and separate possession were made by the respondent.

4. In the said suit, the respondent filed an application for grant of temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The respondent prayed for a temporary injunction against the applicants restraining them from making any construction on the suit property and further to restrain them from creating third party rights therein. The said application was opposed on behalf of the applicants.

5. By order dated 20.08.2016, the trial Court rejected the application for temporary injunction filed by the respondent. In a detailed order passed by the trial Court, there was discussion in respect of the chain of events and facts leading to the applicants coming into possession of the suit property. Since defendant No. 1 did not appear before the Court, it was observed by the Court that it was not clear whether the defendant No. 1 was in collusion with the respondent (plaintiff) or the applicants (defendant Nos. 5 to 8). It was found by the trial Court that there was nothing to show in terms of documentary evidence that the possession of the suit property was ever handed over to the respondent and that there was no material on record to prima facie hold that the respondent had indeed paid a sum of rupees 70 lakhs to defendant No. 1. By considering the necessary parameters of strong prima facie case, irreparable loss and balance of convenience, the trial Court found that that the respondent had failed to make out a case for grant of temporary injunction and thereupon it rejected the application filed by the respondent.

6. Aggrieved by the same, the respondent filed Miscellaneous Civil Appeal No. 39 of 2016 before the Court of District Judge, Amravati (appellate Court). In this appeal, the respondent made only the applicants (defendant Nos. 5 to 8) as parties and defendant Nos. 1 to 4 and 9 and 10 were not made parties to the appeal. In the appeal memo, the respondent raised specific grounds to the effect that the fact of receiving the aforesaid amount of rupees 70 lakhs from the respondent could be accepted or denied only by defendant No. 1 and not by the applicants and that the sale-deed dated 16.12.2015 and Deed of Assignment dated 07.04.2016 were prima facie illegal and void. It is relevant that the said transactions and facts necessarily involved the defendants who were not made parties to the appeal.

7. In this appeal, the applicants filed an application for dismissal of the appeal on the ground of non joinder of necessary parties. It was pointed out that when the defendant Nos. 1 to 4 and 9 and 10 were parties in the pending suit before the trial Court, the appeal filed by the respondent making only the applicants (defendant Nos. 5 to 8) as parties, was not maintainable. It was pointed out that the subject matter of the appeal involved consideration of issues and documents at interim stage, which had direct effect on the defendants who were not made parties and that such issues could not be decided in the absence of the defendants who were absent in the appeal. This application was strongly resisted by the respondent and it was claimed that since relief in the temporary injunction application was being claimed only against the applicants (defendant Nos. 5 to 8), the other defendants in the pending suit were not required to be made parties and that the appeal could not be dismissed for non joinder of the aforesaid defendants.

8. By the impugned order dated 07.04.2017, the appellate Court has dismissed the application of the applicants holding that the defendants other than the applicants herein, are not interested parties as their rights are not affected and no relief is being sought by the respondent against them.

9. Shri J.T. Gilda, Advocate along with Shri A.J. Gilda, Advocate, learned Counsel appearing on behalf of the applicants have submitted that the impugned order passed by the appellate Court is wholly unsustainable because it is erroneous on facts as well as law. It is submitted that merely because in the temporary injunction application, restrainment order is sought against the applicants, it cannot be said that the defendants in the pending suit, other than the applicants herein, are not necessary parties in the appeal filed by the respondents, arising out of the order of the trial Court rejecting the temporary injunction application. It is contended that even while deciding the question as to whether an order of temporary injunction deserves to be granted in favour of the respondent and against the applicants, the Court is required to consider the facts as they emerge on the basis of material on record and prima facie findings are required to be given on various aspects of the matter, including the contentions raised by the respondent on merits against all the defendants and the chain of transactions leading to the applicants being put in possession of the suit property. It is pointed out that when the Court is required to consider prima facie the validity of the sale deed executed in favour of the applicants by the defendants who are not parties before the Court and it has to comment upon the contentions raised on behalf of the respondent that orders were obtained in a collusive manner and fraudulently in earlier suits filed inter se between the defendants who are not parties in the appeal, it would be a travesty that the appellate Court would go ahead to consider such issues without all the defendants being parties to the appeal filed by the respondent. It is also pointed out that in the appeal memo itself specific grounds are raised about the fact that it is only the defendant No. 1 who could admit or deny about payment of consideration of rupees 70 lakhs by the respondent, as also that the sale deed dated 16.12.2015 and Deed of Assignment dated 07.04.2016 were prima facie illegal and void. Any finding on such grounds could not be rendered by the appellate Court in the absence of the defendants who are directly concerned with such grounds raised in the appeal. Learned Counsel points out that non joinder of all the defendants as respondents in the appeal was fatal to the appeal and that it deserved to be dismissed on that ground itself, which the appellate Court had failed to appreciate. Reliance was placed on the judgment of the Hon’ble Supreme Court in the case of Ch. Surat Singh (dead) and others v. Manohar Lal and others (reported in MANU/SC/0407/1970 : AIR 1971 SC 240); judgment of the Full Bench of Kerala High Court in the case of Ammukutty Amma and another v. Madhavi Amma (reported in MANU/KE/0023/1971 : AIR 1971 Kerala 90); judgment of the MP High Court in the case of Saraswatibai v. Durga Sahai and others (reported in MANU/MP/0039/1982 : 1983 MPLJ, 475); and the judgment of Punjab and Haryana High Court in the case of New India Insurance Co. Ltd. v. Charanjit Kaur and others (reported in MANU/PH/0072/1989 : (1990) 1 ILR Punjab and Haryana, 194).

10. Per contra, Shri Prasad Dharaskar, learned Counsel appearing on behalf of the respondent submitted that when the respondent was claiming relief of temporary injunction in the form of restrainment orders only against the applicants (defendant Nos. 5 to 8), there was no need for the other defendants to be made parties to the appeal. He submitted that the appellate Court correctly held in the impugned order that when relief was restricted only as against the applicants, there was no need to add all the remaining defendants as parties to the appeal. It was further contended that the appeal could not be dismissed only on that ground and that the appellate Court could direct the remaining defendants to be made parties to the appeal by exercising power under Order 41 Rule 20 of the Code of Criminal Procedure. Reliance is placed by the learned Counsel on the judgments of High Court of Nagpur in the case of Maruti Gopalrao v. Khushalrao Narayanrao and others (reported in MANU/NA/0071/1949 : AIR 1951 Nag 415); judgment of Full Bench of Punjab and Haryana High Court in the case of Notified Area Committee Buria v. Gobind Ram Lachhman Dass and other (reported in MANU/PH/0086/1959 : AIR 1959 Punjab 277); and the judgment of Kerala High Court in the case of E. Madhavi Amma and others v. E. Indusekharan and others (reported in MANU/KE/0085/1992 : AIR 1992 Ker 390).

11. Having heard the learned Counsel appearing on behalf of the respective parties, the question is, as to whether non joinder of all the defendants by the respondent in his appeal before the appellate Court, is fatal and whether the appeal deserves to be dismissed only on that ground. Perusal of the plaint, application for temporary injunction, order dated 20.08.2016 passed by the trial Court rejecting the temporary injunction application and the appeal memo filed by the respondent shows that there are detailed allegations made against all the defendants, including the applicants herein, by the respondent while claiming the aforesaid reliefs of decree for specific performance, declaration, partition and separate possession. The thrust of the pleadings of the respondent is that the defendants have colluded to deprive him of rights under the agreement dated 08.04.2013 and that there have been collusive decrees obtained by the defendants in suits filed inter se between them, demonstrating that the sale deed dated 16.12.2015 executed by defendant Nos. 2, 3, 4 and 9 in favour of the applicants is illegal, null and void and that it deserves to be cancelled. There are serious allegations of collusion and fraud made against all the defendants by the respondent.

12. Such allegations have been specifically made in the application for temporary injunction filed by the respondent. The trial Court in its order dated 20.08.2016 has dealt with all such allegations on the basis of material available on record and it has rendered observations pertaining to all the defendants, including the applicants herein, while rendering prima facie findings and rejecting the prayer for temporary injunction made by the respondent. Thus, while the prayer for grant of temporary injunction has been made by the respondent primarily against the applicants herein to restrain them from changing the nature of the suit property, making constructions thereon and from creating third party rights, he has made allegations against all the defendants in order to justify grant of temporary injunction in his favour.

13. Perusal of the detailed order dated 20.08.2016 passed by the trial Court rejecting the temporary injunction application shows that there is analysis of material on record affecting all the defendants while findings are rendered on prima facie case made out by the respondent. In the appeal memo, filed by the respondent challenging the aforesaid order of the trial Court, inter alia, the following grounds have been raised by the respondent :-

“(1) That the Learned Lower Court unnecessarily taken much efforts to perform postmortem of document dated 8-4-2013 and therefore reaches to erroneous conclusion by allotting unwarranted reasonings;

(2) That the Learned Lower Court ought to have seen that the fact of receiving Rs. 70 lacs from the appellants can only be accepted or denied by the defendant No. 1 and not by the present respondents and ever by the trial Court of interim stage of the suit; and

(3) That the Learned trial Court purposely not whispered regarding the alleged title of ownership of the respondents over suit properties merely because of the reason that the sale-deed dated 16-12-2015 and Deed or Assignment dated 7-4-2016 are prima-facie illegal, void and cannot transfer the right of ownership.”

14. Perusal of the said grounds demonstrates that they directly concern defendants in the pending suit who have not been made parties to the appeal. Therefore, when the appellate Court is called upon to pronounce upon such grounds and contentions connected therewith that would be raised on behalf of the respondent, findings would be rendered by the appellate Court behind the back of defendants who have not been made parties in the appeal. This cannot be countenanced as no Court can pass orders or make observations and render findings against parties who are not before it, particularly when they are parties in the main suit and proceedings pending before the trial Court and yet they have not been made parties in the appeal. The appellate Court would necessarily be called upon to analyze the entire chain of events leading to the sale-deed dated 16.12.2015 and Deed of Assignment dated 07.04.2016 executed in the present case, which involves not only the applicants (defendant Nos. 5 to 8), but also all other defendants who are involved at one stage or the other in such chain of events. The appellate Court would also be called upon to render prima facie findings not only on such chain of events but also on the claims made by the respondent that earlier proceedings in civil suits filed between the defendants inter se and orders passed therein were based on collusion and fraud. Any findings rendered by the appellate Court on such serious issues, even if prima facie in nature as appeal is against rejection of temporary injunction application, cannot be passed in the absence of all the defendants being parties to the appeal. The appellate Court lost sight of this vital aspect while passing the impugned order and rejecting the application of the applicants only on the ground that in the temporary injunction application, relief was sought by the respondent only against the applicants herein.

15. The reliance placed by the learned Counsel appearing on behalf of the applicants on the judgments of the Hon’ble Supreme Court and High Courts mentioned above, is appropriate. In its judgment, in the case of Ch. Surat Singh (dead) and others v. Manohar Lal and others (supra), the Hon’ble Supreme Court has held that the contention that a particular person had no interest in the suit premises could not be gone into in his absence and that therefore, such appeal in which the said person was not a party deserved to be dismissed. On the same lines, Full Bench of Kerala High Court in the case of Ammukutty Amma and another v. Madhavi Amma (supra) has held that in a situation where necessary parties were left out and not made parties in an appeal, such appeal deserved to be dismissed and the Court could not exercise power under Order 41 Rule 20 of the Code of Civil Procedure to permit those not made parties to the appeal to be added as parties. The Madhya Pradesh High Court in the case of Saraswatibai v. Durga Sahai and others (supra) has held that when a lis was lifted from the trial Court to the first appellate Court, parties who were necessary to the suit have also to be regarded as parties necessary to the appeal preferred against the judgment and decree rendered therein. This Court finds that the said legal position would not necessarily get altered only because in the present case the appeal is filed against an order rejecting temporary injunction application. The respondent had made all the defendants as parties in the application for temporary injunction also and yet in the appeal only the applicants (defendant Nos. 5 to 8) were made parties and a specific bold stand was taken that the other defendants were not necessary parties in the appeal. This was obviously legally not sustainable. In the judgment of the Punjab and Haryana High Court in the case of New India Insurance Co. Ltd. v. Charanjit Kaur and others (supra), it has been held that power under Order 41 Rule 20 cannot be exercised casually and that it has to be exercised with great caution.

16. It is significant that in the present case, in the reply filed by the respondent to the application for dismissal of appeal filed by the applicants, the respondent has strongly resisted the application and a clear stand is taken that the defendants other than the applicants herein were not required to be made parties to the appeal since relief in the temporary injunction application was being sought only against the applicants. It has been analyzed in the preceding paragraph as to why the defendants other than the applicants herein are necessary to be made parties in the appeal before the appellate Court. The learned Counsel appearing on behalf of the respondent has not been able to show as to how the appellate Court would proceed to decide the appeal on merits and render findings and observations while deciding the appeal, in the absence of the defendants other than the applicants herein. The respondent has raised specific contention in the appeal concerning such defendants who are not parties to the appeal and the trial Court in its order dated 20.08.2016 has also discussed chain of events concerning all the defendants, while rendering prima facie findings against the respondent. It has not been explained on behalf of the respondent as to how such an appeal was maintainable in the absence of all the defendants being made parties to the appeal.

17. In this situation, the learned Counsel for the respondent contended that it could be said that the defendants other than the applicants herein were not made parties on the basis of bona fide mistake. On this basis, it was contended that such defendants could be made parties in the appeal under Order 41 Rule 20 of the Code of Civil Procedure. Learned Counsel for the respondent has relied upon aforementioned judgments of various High Courts in support of the said contention. In the said judgments, it has been laid down that if a party has not been impleaded in appeal on account of bona fide mistake, the appellate Court would have power to add such a person as a party under Order 41 Rule 20 of the Code of Civil Procedure. But, the ratio of the aforesaid judgments cannot come to the aid of the respondent herein, in view of the stand taken in the reply filed by the respondent in the application for dismissal of appeal filed on behalf of the applicants herein before the appellate Court. The stand taken by the respondent is reflected in para 2 of the impugned order and the appellate Court has also given only the said reasoning that since reliefs have been sought by the respondent only against the applicants herein, the appeal cannot be dismissed on the ground that all the defendants have not been made parties to the appeal.

18. When the respondent has taken a clear and bold stand, strongly resisting the application filed by the applicants herein, before the appellate Court and the said contention of the respondent has been accepted by the appellate Court while rejecting the application of the applicants herein, it cannot lie in the mouth of the respondent now to turn around and say that there was a bona fide mistake, warranting exercise of power under Order 41 Rule 20 of the Code of Civil Procedure. Hence, the said contention raised on behalf of the respondent is rejected.

19. The net result of the aforesaid discussion is that the impugned order passed by the appellate court is unsustainable in the facts of the present case and the position of law. Therefore, this revision application is allowed. The impugned order is set aside. Consequently, the application filed by the applicants herein for dismissal of appeal is allowed and the appeal filed by the respondent before the Court below is dismissed. There shall be no order as to costs.

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