Indian Kanoon - Search engine for Indian Law

appreciated. She sold 13.5 bighas of land to appellants-

defendants and even mutation also sanctioned and attested in their names, however, the same has also not been appreciated. Also that the lower appellate Court allegedly failed to appreciate the niceties of law qua non-joinder of parties and necessary parties.

.

3. The appeal has been admitted on the following substantial questions of law:

"19 This takes me to the third point in regard to the non-joinder of necessary party i.e. Smt. Saroop Devi, the vendor. I do not subscribe to the views of the learned trial Judge that the suit is liable to be thrown out on the basis of non-joinder of the vendor. The reason is simple. It has come on record that Smt. Saroop Devi has already divested herself of her title in the suit land by having sold the same to the plaintiff and defendants No. 21 and 22 way back in the year 1947. She is no more a owner of the same. Rather, under issue No 1, it is conclusively, proved on record that she is neither the owner nor in possession of the same. That apart, the contesting

20. Even, otherwise, also, as already noticed, the contesting defendants who unsuccessfully claimed right, title and interest from Saroop Devi under sale did not take this objection in their written statement that the suit is bad for non-joinder of Saroop Devi.

Needless to say that Order 1 Rule 13, CPC, mandates that all objections on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground

- 20 -

of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. Rule 9 .

envisages that no suit shall be defeated by reason of misjoinder 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. Though, it is provided therein that nothing in this rule shall apply to non-joinder of necessary party, but, then, as stated above, such an objection has to be taken at the earliest possible opportunity, which has not been done. It was precisely for this reason that no issue was framed on this point nor any evidence was let in. The Ld. trial court took an opportunity to discuss this point only under relief part. What I want to highlight is that the said plea of objection not having been specifically raised before the trial court, it may not be open for the learned counsel for the defendants to raise such a plea for the first time before the Appellate court. in M/s Rai Chand Dewan Chand v. Shri Audh Bihari Lal Bhatnagar and