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1 - 4 of 4 (0.20 seconds)The Amending Act, 1897
Kanakarathanammal vs V. S. Loganatha Mudaliar And Another on 18 December, 1963
It is true that, before the amendment of Rule 9 of Order 1 CPC a suit could not be defeated by reason of misjoinder or nonjoinder of parties, but the proviso made it inapplicable to the cases of non-joinder of
necessary parties. The contention of the learned senior Counsel appearing for the appellant is that, since defendant No.5 who was admittedly a necessary party had been given up therefore the suit got defeated and had to be dismissed. He places reliance on a judgment of the Supreme Court reported in Kanakarathanammal v. Loganatha, . It was a clear case of nonjoinder of a necessary party. After recording the finding that it was a case of non-joinder of parties the Constitution Bench of Supreme Court considered the import of Order 1, Rule 9 and Order 1, Rule 10 sub-rule (2) of CPC and laid down the law in paras 14 and 15 of the judgment. Both the paragraphs are reproduced in order to have correct appreciation of law as laid down by the Supreme Court.
Bhagwan Swaroop And Ors. vs Mool Chand And Ors. on 3 February, 1983
The teamed Counsel for
the appellants was not able to show us any law by which one could find a fault with learned single Judge in allowing the application of the legal representatives of defendant No.5 to bring them on record. In this connection one may make a reference to sub-rule (2) of Rule 10 of Order 1 CPC. If Rule 9 and Rule 10(2) are read together then one can assume that the learned single Judge was justified in allowing the application for bringing on record the legal representatives of the defendant No.5 and it was not necessary that such an application should have been made by the plaintiffs. It may be further pointed out that the judgment of the Constitutional Bench of Supreme Court to which a reference has been made hereinabove is being interpreted by us in the way in which it is being interpreted while drawing strength from another judgment of Supreme Court i.e., Bhagwan Swaroop v. Afool Chand, . In this case a preliminary decree was passed after partition in a suit filed by appellants against respondents 1 and 2. During appeal respondent No.1 died. His legal representatives were not brought on record for more than three years. After, three years an application was filed under Order 22, Rule 4. Another application was filed by the legal representatives of respondent No.1 under Order 1, Rule 10 CPC. Both the applications were rejected by the High Court. The matter went to the Supreme Court. It was contended before the Supreme Court and the High Court that when a specific provision is made as provided in Order 22, Rule 4 a resort to the general provision like Order 1, Rule 10 may not be appropriate. In this context it is contended by the learned Counsel for the appellant that when the suit was dismissed as against defendant No.5 no steps were taken to get that order reversed by the plaintiff and the learned single Judge could have not taken recourse to Order 1, Rule 10(2) in allowing the application of legal representatives of the defendant No.5. But, in this judgment (supra) para 5 and para 12 are relevant and are reproduced.
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