Bombay High Court · 2022
Case Details
sa249.97 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 932 SECOND APPEAL NO. 249 OF 1997 WITH CA/2859/1997 IN SA/249/1997 Ganesh s/o Shivnath Mande, Age : 19 years, (Minor) U/g. of his mother Dwarkabai w/o Shivnath Mande, Age 38 years, Occ : Agril., R/o Gaulishivra, Tq. Gangapur, District Aurangabad. Umesh s/o Shivnath Mande, Age : 10 years, (Minor) U/g. of his mother Dwarkabai w/o Shivnath Mande, as above. Kavita d/o Shivnath Mande, Age : 7 ½ years, (Minor) U/g. of her mother Dwarkabai w/o Shivnath Mande, as above. Ujwala d/o Shivnath Mande, Age : 15 years, (Minor) U/g. of her mother Dwarkabai w/o Shivnath Mande, as above. Dwarkabai wd/o Shivnath Mande, Age 61 years, Occu : Agril., R/o Gaulishivra, Tq. Gangapur, Dist. Aurangabad. Versus Jagannath s/o Dhondiba Mande, Age : 66 years, Occ : Agriculture, R/o Gaulishivra, Tq. Gangapur, Dist : Aurangabad. (name of respondent no.1 deleted from the array of respondents vide Registrar’s order dated 10.10.2012)
Legal Reasoning
… Appellants. (Orig. Plaintiffs) 1. 2. 3. 4. 5. 1. 2. Shivnath s/o Dhondiba Mande, Age : 41 years, Occ; Agriculture, sa249.97 -2- R/o Gaulishivra, Tq. Gangapur, Dist : Aurangabad. 3. 4. Subhadrabai w/o Machhindra Raut, Age : 46 years, Occ; Household, R/o Kankori, Tq. Gangapur, Narmadabai w/o Asaram Dalve, Died through her Legal Heirs, 4-A. Sainath s/o Asaram Dalve, Age: 30 years, Occu: Agril., R/o. Kankori, Tq. Gangapur, District Aurangabad. 4-B. Nandu s/o Asaram Dalve, Age : 36 years, Occu : Agril., R/o. Baijipura, Galli No.23, Aurangabad, Tq. and Dist Aurangabad. 4-C. Santosh s/o Asaram Dalve, Age : 42 years, Occu : Labourer, R/o. Pundaliknagar, Galli No.4, Aurangabad, Tq. and District Aurangabad. 5. Shobhabai w/o Kaduba Vyawahare, Died through her Legal Heirs. 5-A. Pandurang s/o Kaduba Vyawahare, Age : 30 years, Occu. Service, R/o. Nilajgaon, Tq. Paithan, District : Aurangabad. 5-B. Rekha w/o Dadarao Panale, Age : 23 years, Occu. Household, R/o. Kausgaon, Tq. Bhokardan, District : Jalna. 5-C Saraswati w/o Santosh Suryawanshi, Age : 28 years, Occu. Household, R/o. Kachiwada, Near Collector Office, Aurangabad, Tq. and District Aurangabad. 5-D. Surekha w/o Dnyaneshwar Kharge, Age : 25 years, Occu. Household, R/o. Bidkin, Tq. Paithan, District : Aurangabad. sa249.97 -3- 6. 7. 8. Vimabai w/o Ramesh Raut, Age : 31 years, occ : Household, R/o Sidhanathwadgaon, Tq. Gangapur, Dist. Aurangabad. Roopabai w/o Dagdu Dhanure, Age : 61 years, Occ : Household, R/o Gaulishivra, Tq. Gangapur. Sow. Prayagbai w/o Suryabhan Mande, Age : 25 years, Occ : Household, R/o Gaulishivra, Tq. Gangapur, Dist : Aurangabad. … Respondents (Orig. Defendants)
Legal Reasoning
..... Advocate for Appellants : Mr. Milind Patil Advocate for Respondent No.7 : Mr. Ashutosh S. Kulkarni h/f Mr. V. V. Deshmukh ….. CORAM : BHARAT P. DESHPANDE, J. DATED : 28th JULY 2022 ORAL JUDGMENT :- 1. The present appeal was admitted on 29.9.2000 on the following substantial question of law : (A) Whether, in the absence of specific pleading in the suit regarding nonjoinder of parties, the appellate Court was justified in allowing the appeal on the ground that the grandmother of the plaintiffs, who was a necessary party, had not been made a party to the suit, even without affording an opportunity to the plaintiffs to take action under O.I, r. 10, C.P.C.? 2. During pendency of the present appeal, an application was filed vide civil application No. 9077 of 2021 for impleading the parties to the proceeding. Vide order dated 1.9.2021, the said application sa249.97 -4- was allowed. The appellants were permitted to amend the cause title of the second appeal. Accordingly, Dwarkabai wd/o Shivnath Mande was added as appellant No.5. 3. It is argued by learned counsel for the appellants that in view of addition of necessary parties to the proceeding, the question of law framed while admitting the matter is virtually answered. 4. It is found that the learned first appellate court, vide its judgment and decree dated 21.4.1997, allowed the appeal filed by the respondent no.7 herein only on the ground that the suit is not tenable for non-joinder of necessary parties and thereby dismissed the suit filed by the present appellants. 5.
Decision
In view of the above development and permission granted by this Court to the appellants to join necessary parties to the present proceedings, it is found necessary to remand the matter back to the first appellate court to reconsider the appeal bearing Regular Civil Appeal No. 20 of 1995 specifically when necessary party is joined in the present proceeding. The effect of joining of necessary party in the present proceeding is that said party is also considered as party before the first appellate court. 6. In view of this, the first appellate court shall consider the said appeal afresh only with regard to the aspect of non-joinder of sa249.97 -5- necessary parties. 7. It is made clear that the other aspects which are already argued and decided between the parties cannot be reopened. In view of the above facts, following order is passed:- O R D E R I. Second appeal is partly allowed. II. The impugned judgment and decree passed by the first appellate court dated 21.4.1997 is hereby quashed and set aside. III. Regular Civil Appeal No. 20 of 1995 is restored to its original position. IV. Learned Additional District Judge, Vaijapur is directed to add present appellant No.5 as respondent No.12 in the said appeal and thereafter decide the said appeal afresh. V. It is made clear that the points which are already argued and decided, except the point of non-joinder of necessary parties, shall not be permitted to be argued. VI. Learned Additional District Judge is therefore directed to decide the said appeal preferably within a period of three months from the date of receipt of the record and proceedings from this Court. sa249.97 -6- VII. The Registry is directed to return the record and proceedings to the first appellate court as early as possible. VIII. The parties shall appear before the first appellate court on 12.9.2022. IX. Pending civil application does not survive and the same is also disposed of. rlj/ (BHARAT P. DESHPANDE, J.)