The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SAO No.19 of 2009 (An application under Order-XLIII Rule 1(u) of Civil Procedure Code, 1908) Bhimasen Behera and another … Appellants -versus- Braja Behera and others … Respondents For Appellants : Mr. H.N. Mohapatra, Advocate For Respondents : Mr. B. Pradhan, Advocate for Respondent Nos. 1 to 3 CORAM: HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :02.08.2024 DATE OF JUDGMENT:08.10.2024 G. Satapathy, J. 1. This is an appeal under Order-XLIII Rule-1(u) of the Code of Civil Procedure, 1908 (in short “the CPC”) against the reversal judgment dated 24.09.2009 passed in RFA No.2 of 2005 by which the learned First Appellate Court, while setting aside the judgment dated 15.01.2005 and decree dated 08.02.2005 of the SAO No.19 of 2009 Page 1 of 22 learned Civil Judge, (Jr. Division), Athagarh dismissing the suit in CS No. 04 of 2004, has remitted the matter to the learned trial Court for deciding it afresh by allowing the plaintiffs-Respondents here in the SAO to file consolidated plaint by adding one Mitu Behera as a party to the suit and giving opportunity to prove the three rent receipts in evidence. 2. The facts sufficient to dispose of this appeal in precise are that the present Respondent Nos. 1 to 3 (R1 to 3) along with their deceased mother being the plaintiffs had instituted a suit in CS No.04 of 2004 in the Court of learned Civil Judge (Jr. Divison), Athagarh against the present appellants and R4 to 6 seeking a decree to declare their right, title, interest and possession over the suit land with consequential prayer to permanently restrain them from creating any disturbance in their peaceful possession thereon and further with an alternative prayer for recovery of
Facts
possession in case the plaintiffs were found to be dispossessed over any portion of the suit land during SAO No.19 of 2009 Page 2 of 22 pendency of the suit. According to the plaintiffs, their predecessor-in-interest namely Sudar Behera had purchased the suit land from one Raj Kishore Patnaik vide RSD No.362 dated 16.04.1963 and he accordingly, possessed thereof in sabik Plot No. 2481 appertaining to sabik Khata No. 581 of Mouza-Panchagaon for the entire extent land of Ac.0.17 dec. by putting green fence around the land, but during the settlement operation in 1985, only an area of Ac.0.10 dec. out of the suit land was recorded in the name of said Late Sudar Behera in Plot No.4622 of Khata No.847, who was possessing the entire suit land of Ac.0.17 dec. and the plaintiffs continued to possess the suit land after death of the common ancestor Sudar Behera. However, taking advantage of wrong recording in Settlement Operation, the defendants being the adjoining Western side tenants of the plaintiffs, attempted to encroach upon Ac.0.40dec. of land, out of the suit land for construction of their house and they accordingly, dug foundation on 14.02.2004 eventually compelling the SAO No.19 of 2009 Page 3 of 22 plaintiffs to institute a proceeding U/S.144 of CrPC in the Court of learned Executive Magistrate, Tigiria in Crl. Misc. Case No.07 of 2004 wherein the defendants were ordered to be restrained, but due to efflux of time, the aforesaid case was dropped. When the plaintiffs could know about the wrong recording in the settlement records in the month of February, 2004, they instituted another proceeding(revision) in R.P. No.194 of 2003 before the Joint Commissioner, Survey, Settlement and Consolidation, Orissa, Cuttack, who remitted the case to Tahasildar, Tigiria for disposal in accordance with law, but since the defendants on 19.06.2004 again attempted to invade upon the suit land despite pendency of the R.P. case, the plaintiffs were constrained to institute the suit. 2.1 In response to the summons of the suit, the defendants by entering appearance had filed their joint written statement claiming inter alia that a portion of Hal Plot No. 4623 corresponding to sabik Plot No.2482 situated to the adjoining South of the suit land SAO No.19 of 2009 Page 4 of 22 was carved out and amalgamated for the purpose of construction of village road and in lieu thereof, some portion of the suit plot was amalgamated in Hal Plot No.4623 corresponding to sabik Plot No.2482. It is further stated by the defendants in the written statement that D4, 5 and Mitu Behera being the three sons of D1 had purchased an area of Ac.0.05 dec. towards the North of Hal Plot No.4624 out of the total extent of Ac.0.35 dec. from one Abhina Behera, which fell to his share on mutual partition and they have never encroached upon any portion of the suit land and the plaintiffs instead of agitating their claims as against the owner of Hal Plot No.4623, with which some portion of suit land has been amalgamated have filed the suit without any basis. In addition to above plea, the defendants in their written statement had claimed that the suit is bad for non-joinder of parties like Mitu Behera and other brothers of D4 and 5 as well as the owner of Hal Plot No.4623. SAO No.19 of 2009 Page 5 of 22 3. On the basis of rival claims, the learned trial Court framed necessary issues with regard to maintainability of suit, law of limitation, cause of action for the suit and entitlement of the plaintiffs, in addition to the following four core issues:- (i) Is the suit bad for mis-joinder and non-joinder of necessary parties? (ii) Have the plaintiffs any right, title and interest over the suit land? the defendants extended (iii) Have threat to invade upon the right to and/or enjoyment of the plaintiffs over the suit property? (iv) Are the plaintiffs entitled to the recovery of possession of the suit property? 4. In support of rival claims, the parties adduced oral as well as documentary evidence and the learned trial Court upon detail analysis of evidence returned with findings on issue Nos.4 to 7 against the plaintiffs and accordingly dismissed the suit by way of the judgment dated 15.01.2005 in CS No.04 of 2004. Being aggrieved with the dismissal of the suit, the plaintiffs had preferred an appeal before the learned Additional SAO No.19 of 2009 Page 6 of 22 District Judge, (F.T.C), Athagarh in RFA No.02 of 2005 wherein the learned ADJ, (F.T.C.), Athagarh on the two petitions of the appellants-plaintiffs under Order.1 Rule- 10 of CPC and Order.41 Rule-27 of CPC respectively had passed order on 16.08.2008 allowing both the petitions by admitting all the order sheets in RP Case No. 194 of 2003 and the certified copy of the order in Misc. Case No.164 of 2005 under Exts.9 and 10 as additional evidence and directing addition of Mitu Behera as a party to the suit. By the aforesaid order, the learned 1st Appellate Court had further directed to take additional evidence in respect of three number of rent receipts filed by the appellants subject to proof of the same by the appellants. After allowing these two petitions of the appellants on 16.08.2008, the learned 1st Appellate Court allowed to adjourn the matter on twenty occasions and on 24.09.2009, disposed of the appeal by setting aside the judgment and decree passed by the learned Civil Judge (Jr. Division), Athagarh in the suit and remitted it back to the learned SAO No.19 of 2009 Page 7 of 22 Civil Judge (Jr. Division), Athagarh for fresh disposal in accordance with law. Hence, this is the appeal against such order of remand by the unsuccessful defendants- respondents in learned 1st Appellate Court. 5.
Legal Reasoning
indolent. Further, this Court in Balaram Bhoi (supra) has held that the direction of Appellate Court to implead a person as a party to the suit while the contesting parties with their full knowledge did not implead him could not be ground to remand the suit to the trial Court and if a suit suffers from non-joinder of necessary parties, the said lacuna could not be filled up by the Appellate Court by remanding the suit to the learned trial Court. 9. In the present suit, not only the learned trial Court has framed a issue about misjoinder and non- joinder of parties under issue No.4, but also has answered the issue specifically by analyzing the evidence on record which of course is subject to legal scrutiny and a clear finding thereon is required in case it is advanced by the parties in appeal. It also appears SAO No.19 of 2009 Page 15 of 22 from paragraph-10 of written statement of the defendants that D1 has three sons namely D4- Bhimasen, D5-Tita and Mitu (sought by the plaintiffs- appellants and directed to be added as party by the 1st Appellate Court), who have purchased Ac.0.05 dec. of land towards the Northern side of the Plot No.4624 from Abhina Behera. Further, in the written statement, it had been specifically pleaded that “out of three sons of Alekha, two are made parties, but Mitu is not arrayed as a party and hence the suit is liable to be dismissed due to non-joinder of necessary parties”. It is further stated therein that the other sons of Late Dharmu, such as Dhadia, Abhina, Bira and Nila are also not made as parties to the suit. In coming back to the evidence on record, P.W.3 in his cross-examination had admitted that “D1 has three sons namely Bhima, Titu and Mitu and as the other brothers of D1, have no lands in the suit locality in view of the partition of their property, they have not made them as parties in the suit and he cannot say if the records of their landed properties still SAO No.19 of 2009 Page 16 of 22 stands jointly”. On a careful scrutiny of the above pleadings and evidence, it goes without saying that the plaintiffs had got full knowledge about non-impletion of Mitu Behera as a party to the suit and they fought the suit without impleading Mitu Behera as a party and, therefore, the plaintiffs are guilty of negligence for not arraigning Mitu Behera as a party and, therefore, the direction of the learned 1st Appellate Court to add Mitu Behera as a party appears to be erroneous since it defies the very principle on which the question of addition of party(ies) is to be answered. Hence, the
Arguments
In assailing the impugned judgment, Mr. H.N. Mohapatra, learned counsel appearing for the appellants, however, has attacked the impugned judgment of the 1st Appellate Court mainly on two grounds; firstly, although the plaintiffs fought the suit with full knowledge of non-joinder of necessary parties, but ignoring such facts, the learned 1st Appellate Court has allowed the petition for addition of party which is contrary to law; secondly, the learned 1st Appellate Court ignoring the basis on which additional evidence is admitted has allowed the petition of the appellants to adduce additional evidence by admitting two documents under Exts. 9 and 10 which is contrary to law since the party cannot be allowed to patch up his lacuna by way of additional evidence. It is further argued by Mr. Mohapatra that although there was a SAO No.19 of 2009 Page 8 of 22 rival claims for possession, but the learned 1st Appellate Court by allowing the additional evidence has facilitated the plaintiffs the opportunity to proof rent receipts which has nothing to do with the possession of the party since rent receipts are basically meant for fiscal purpose of the revenue and at best, it would raise a presumption of possession, but the defendants- appellants in the SAO had clearly proved their possession which is found from the evidence on record, and the learned trial Court after making a detailed analysis of such evidence on record had arrived at a just finding on the relevant issue of right, title, interest and possession of the party and therefore, the findings of the learned 1st Appellate Court being contrary to law is unsustainable and liable to be set aside. Mr. Mohapatra while praying to allow the appeal by remitting the matter to the learned 1st Appellate Court for fresh adjudication has relied upon the decision in Balaram Bhoi vs. Babajee Bhoi and others; 2007 (Supp.-I) OLR-276. SAO No.19 of 2009 Page 9 of 22 6. In repelling the aforesaid submissions advanced on behalf of the appellants, Mr. T.K. Mishra, learned counsel appearing for R1 to 3 has submitted that the learned 1st Appellate Court has not at all committed any illegality in remitting the matter back to the learned trial Court for fresh adjudication since one Mitu Behera, who is a necessary party has been allowed to be impleaded as a party to the suit by the learned 1st Appellate Court and once a party is added in appellate stage, he is to be provided with all opportunity to file written statement and lead evidence and, therefore, remitting the matter back to the learned trial Court for fresh disposal is not only in accordance with law, but also is the requirement of law and, therefore, the judgment of the learned 1st Appellate Court cannot be assailed on that ground. Mr. Mishra, has further submitted that the impugned judgment allowing the plaintiffs-respondents to adduce additional evidence by providing opportunity to prove the three rent receipts cannot be questioned at this stage, more particularly SAO No.19 of 2009 Page 10 of 22 when the plaintiffs’ case is entirely based upon possession over the suit land which has been decided in their favour by the Joint Commissioner of Revenue and since the plaintiffs’ suit was dismissed on the ground of pendency of RP Case No.194 of 2003, the said proceeding having already been disposed of and the certified copy of order sheet in RP Case No.194 of 2003 and certified copy of order dated 28.03.2006 in Misc. Case No.164 of 2005 of the Joint Commissioner being marked as Exts.9 & 10 as additional evidence and the rent receipts being subject to proof by the plaintiffs, the only course left open to the 1st Appellate Court to remand the suit for fresh adjudication and, therefore, the impugned judgment cannot be questioned in this appeal. Mr. Mishra has, accordingly, prayed to dismiss the present Second Appeal from Order. 7. After having considered the rival submissions upon perusal of record, indisputably the learned 1st Appellate Court without adverting to the matters on merit disposed of the appeal by remanding the suit to SAO No.19 of 2009 Page 11 of 22 the learned Civil Judge (Jr. Division), Athagarh for fresh disposal primarily on two grounds; firstly, one Mitu Behera who is another son of Alekh Behera being a necessary party has to be impleaded as a party in the suit; secondly, the appellants-plaintiffs has been allowed to proof three rent receipts by admitting two documents under Exts 9 & 10 as additional evidence. It is, however, not in dispute that the learned 1st Appellate Court has allowed both the petitions of the appellants-plaintiffs(Respondents here in the SAO) for addition of Mitu Behera as a party and proof of additional documents much before the disposal of the appeal, but since the defendants-appellants in SAO criticized such order being contrary to law and the same being the basis of remand of the suit to the learned trial Court for fresh adjudication, this Court considers it imperative to examine the sustainability of such order for addition of Mitu Behera as a party to the suit and adduction of additional evidence on the legal parameters as prescribed under law. SAO No.19 of 2009 Page 12 of 22 8. On coming back to the first issue of addition of party, there appears no cavil of doubt that necessary party can be ordered to be added as a party to the suit in an appellate stage, provided such facilitation is not meant for patching up the loopholes or lacuna by the party guilty of such negligence. It is now to be seen as to whether the defendants has raised objection to the non-joinder of the necessary at the earliest in the suit or not, since Order-1 Rule-13 mandates that all objections on the ground of non-joinder or misjoinder 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 of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. The object of Order1 Rule-13 of CPC is primarily to provide an opportunity to the party to raise objection as to the ground of non-joinder of necessary parties, but if the objection as to non-joinder of necessary parties has been taken by the defendants at SAO No.19 of 2009 Page 13 of 22 the earliest stage and despite knowing such objection, the plaintiffs refuses/decline to add such person(s) as a necessary party(ies), he cannot subsequently be allowed in appeal to rectify the error by applying for such an amendment as held by Privy Council in Naba Kumar Hazra and another vs. Radheshyam Mahish and Others; 1931 SCC Online PC 52 (see-last paragraph page-447), wherein it has been held as under:- “no suit is to be defeated by reason of non- joinder of parties, but they are unable to hold that it has any application to an appeal before this Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings, and he has had ample opportunity of remedying it in India.” It is of course true that no suit shall be defeated by the reason of the misjoinder or non-joinder of parties, but the same rule of non-joinder of a necessary party(ies) is not applicable in the case which has been provided in clear terms by the proviso to Order1 Rule-9 of the CPC, which mandates that nothing in this Rule shall apply to non-joinder of necessary party. SAO No.19 of 2009 Page 14 of 22 It is, therefore, very clear that the party guilty of negligence should not be allowed to patch up lacuna or rectify the error at subsequent stage of appeal inasmuch as law helps the diligent, but not the
Decision
order to implead Mitu Behera as a party is unsustainable in the eye of law, but it is to be, however, made clear that whether Mitu Behera is a necessary party to the suit and in absence of him, whether the suit is liable to be defeated is a question of fact which still requires to be adjudicated upon inasmuch as if in a case where all the affected persons have not been joined as a parties and some of them has been joined, the principle “the interest of such SAO No.19 of 2009 Page 17 of 22 person, who is not joined as party is identical to those persons who are before the Court and is sufficiently well represented” can be applied and thereby, whether such principle can be applied to the present suit is required to be decided on the issue while deciding the first appeal on merits. 10. On coming back to the next issue of additional evidence, it appears that the learned 1st Appellate Court has already allowed additional evidence and marked two documents as Exts. 9 & 10, but it still directed the learned trial Court to allow the plaintiffs- Respondents here in the SAO to proof the three rent receipts by observing in the impugned judgment that the learned trial Court has disbelieved the possession of plaintiffs under issue No.5 for want of proof of rent receipts. Law is very clear on the point of additional evidence that it should not be allowed to the parties merely to fill up the lacuna or latches or make good for the deficiency/weakness of its case. Further, Clause(aa) of Rule 27 of Order 41 of the CPC gives a discretion to SAO No.19 of 2009 Page 18 of 22 the Appellate Court to allow party to adduce additional evidence, if the party seeking to adduce additional evidence satisfies the Court that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the impugned decree or order under appeal was passed or made. It is, therefore, very clear in this case that the plaintiffs-respondents here in the SAO have to establish this condition before they may be permitted to adduce additional evidence. It is, of course, true that the learned trial Court had held in issue No.5 that since the RP case is pending, the suit is premature in nature and it would be too early even otherwise to take notice of the possession of the plaintiffs’ over an area of Ac.0.16 decimals of land as reported by the Amin in the case, but fact remains that the learned 1st Appellate Court has admitted the certified copy of order sheets in RP No. 194 of 2003 and certified copy of order passed in Misc. Case No. 164 of 2004 as additional evidence SAO No.19 of 2009 Page 19 of 22 under Exts. 9 & 10, however, the learned 1st Appellate Court has committed fundamental mistake by not allowing the other side to adduce rebuttal evidence. 11. True it is that whenever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred or any other sub- ordinate Court to take such evidence and to send it when taken to the Appellate Court. In the aforesaid situation, the petition allowing the plaintiffs- Respondents here in the SAO to adduce additional evidence appears to be correct because the learned trial Court has decided issue No.5 against the plaintiffs due to pendency of RP Case No. 194 of 2003, but that has been disposed of and additional evidence thereon has already been taken. The only thing is to allow the other side to produce rebuttal evidence which has not been done by the learned 1st Appellate Court. On the other hand, Public Policy demands that there should be end to litigation and Court should always strive to SAO No.19 of 2009 Page 20 of 22 dispose of the case on the basis of evidence available on record. However, the learned 1st Appellate Court may send the record to the Court from whose decree the appeal is preferred or itself take the evidence with regard to proof of three rent receipts by allowing the other side (Defendants) to produce rebuttal evidence either by cross-examining the party proving the rent receipts or by leading any relevant documentary/oral evidence to the new evidence admitted on behalf of the Plaintiffs which includes Exts. 9 & 10 and thereupon decide the appeal afresh without being influenced by the earlier order passed by the said Court. Further, the order with regard to addition of Mitu Behera as a party being unsustainable is hereby set aside. It is made clear that the parties should not be granted unnecessary adjournment for tendering evidence or cross-examination of the witnesses proving the documents and the exercise of taking evidence should not be postponed beyond one month of the first date of taking it. If the parties fail to tender evidence within the SAO No.19 of 2009 Page 21 of 22 aforesaid period would be deemed to be considered to have no evidence. 12. In the result, the appeal stands allowed on contest, but to the extent indicated above, however, no order as to costs. The appeal is remitted back to the learned 1st Appellate Court for fresh disposal in accordance with law and in the light of observation made in this judgment. 13. Since the litigation is of the year of 2004, the learned 1st Appellate Court is hereby requested to dispose of the appeal within six months of receipt of the copy of this judgment. Office is hereby requested to send the copy of the judgment to the learned 1st Appellate Court forthwith. The contesting parties are hereby directed to co-operate with the concerned Court for tendering evidence and disposal of the first appeal. (G. SATAPATHY) JUDGE Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 08-Oct-2024 13:00:39 Orissa High Court, Cuttack, Dated the 8th day of October, 2024/Kishore SAO No.19 of 2009 Page 22 of 22