2008(5) ALL MR 601
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
R.M. SAVANT, J.
Ukha Chamatya Bhil Vs.Chatursingh Bilji Bhil & Ors.
Writ Petition No.7633 of 2006
1st July, 2008
Petitioner Counsel: Shri. J. R. SHAH
Respondent Counsel: Mrs. SABAHAT KAZI,Shri. C. R. DESHPANDE
Civil P.C. (1908), O.1, R.13, O.20, Rr.1 to 5 - Framing of issues - Challenge to - No whisper in written statement filed on behalf of defendants raising an issue as regards the maintainability of the suit on account of non-joinder of necessary parties - Written statement proceeding on basis of denials - Without there being any foundation in the written statement, held, the framing of the said additional issue on the basis of the pleadings that were already on record was totally misfounded. (Paras 7 & 8) (Paras 7 & 8)
2. This petition takes exception to the Order dated 28-09-2006 passed by the learned Civil Judge, Senior Division, Shahada by which order the application filed by the Respondents herein came to be allowed and the learned Judge held that an additional issue in respect of non joinder of necessary parties is required to be framed.
3. The petitioner herein is the original plaintiff in Special Civil Suit No.48 of 2003 filed by him in the Court of Civil Judge, Senior Division, Shahada. The said suit has been filed for declaration and partition of one half of gat no.10 of village Talwadi, taluka Shahada, district Nandurbar. The said gat No.10 admeasures 2 H. 51 R. and it is the case of the plaintiff that he is in possession of half portion on the western side and he has been cultivating the same. The plaintiff, therefore, prayed that partition should be effected and possession should be handed over to him on the said basis. The plaintiff is the heir of one Bonda whereas the defendants are the heirs of Giran and the children of Gajya, Kalya and Bilji. The common ancestor of the plaintiff and the defendants is one Amrya.
4. In the said suit, the defendants filed their written statement and denied the claim of the plaintiff. Pertinently, no preliminary objection was raised as regards the maintainability of the suit on account of non-joinder of parties. On the basis of the pleadings that were on record, as many as 7 issues were framed. The parties went to trial on the said issue and the evidence on behalf of the plaintiff was completed in or about August, 2006. It appears that on 20-09-2006, an application was made under the signature of the defendant No.1 on behalf of the defendants that one Wedibai who is the mother of the plaintiff and defendant No.1 and one Supdibai who is the sister of plaintiff and also the sister of defendant No.1 were not made parties to the suit and, therefore, the said suit was bad for non-joinder of the necessary parties. The said Application, Exhibit 18, came to be allowed and by the impugned order dated 28-09-2006, the learned Civil Judge, Senior Division held that the additional issue as regards non-joinder of necessary parties is required to be framed in the suit. As indicated above, it is aggrieved by the said order dated 20-09-2006 that the petitioner has approached this Court by way of above petition.
5. On behalf of the petitioner, it is contended by Shri. J. R. Shah, the learned Counsel appearing for the petitioner that there is absolutely no foundation in the written statement for the said additional issue to be framed. According to Shri. Shah, the case made out in the application, Exhibit 18, is not part of the written statement and, therefore, a new case is sought to be introduced without amending the written statement. Shri. Shah further submitted that Order 1, Rule 13 of the C.P. Code postulates within that period the said issue of non-joinder of necessary parties could be raised. According to Shri. Shah, the instant case does not satisfy the mandate of Order 1, Rule 13 and, therefore, having not raised the said preliminary issue in respect of non-joinder of a necessary party, the defendants are deemed to have waived the said issue.
6. Per contra, it is submitted by the learned Counsel for the Respondents Mrs. Kazi that the said issue is required to be framed for a complete adjudication of the issues raised in the suit. The learned Counsel submitted that there is no dispute that said Wedibai is the mother of the plaintiff and said Supdibai is the sister of plaintiff and, therefore, in the suit of the nature filed by the plaintiff for partition they are necessary parties to the said suit. The learned Counsel, therefore, submitted that the impugned order passed by the trial Court could not be interfered with.
7. Having heard the learned Counsel for the respective parties and having given my anxious consideration to the said submissions, in my view, the instant petition is required to be allowed for the following reasons:
Reading of the impugned order ex facie discloses that the learned Judge has perused the pleadings and documents for the purpose. Undoubtedly, the issues are framed on the basis of the pleadings. However, as submitted by Shri. Shah there is not a whisper in the written statement filed on behalf of the defendants raising an issue as regards the maintainability of the suit on account of the non-joinder of necessary parties. The written statement proceeds on the basis of denials. The possession and cultivation of the plaintiff has been denied in respect of the said gat No.10. The defendants without amending the written statement and by filing the said Application, Exhibit 18, have now sought to raise the issue as regards the maintainability of the suit on account of non-joinder of necessary parties. In my view, without there being any foundation in the written statement, it would not be open for the respondent/defendants to introduce a new case by way of the said application, Exhibit 18. Since there is no foundation in the written statement, the framing of the said additional issue on the basis of the pleadings that were already on record was totally misfounded.
8. In respect of the objections on the ground of non-joinder of parties, Order 1, Rule 13 of the C.P. Code mandates that the said objection should be taken at the earliest possible opportunity and in all cases where issues are settled at before said settlement unless the ground of objection has subsequently arisen. The said order further mandates that any such objection not so taken shall be deemed to have been waived. In the instant case, the said objection has been raised after the evidence of the plaintiff is complete. There is no averment in the said Application, Exhibit 18 stating that the ground of objection has subsequently arisen. Obviously, it could not be so as the said ground of objection was available to the defendants from the inception as the said Wedibai and Supdibai are mother and sister of the plaintiff respectively. Having not raised the objection before the settlement of the issue and having not given any justification as to why the said objection could not be raised earlier, in my view, the Application, Exhibit 18, is squarely hit by the provisions of Order 1, Rule 13 of the C.P. Code and following the mandate of Order 1, Rule 13 of the C.P. Code, the said objection obviously would have to be taken as deemed to have been waived. In my view, the trial Court has erred in allowing the said application by merely observing that it was required to be framed for proper disposal of the said suit. The trial Court appeared to be oblivious of Order 1, Rule 13 of the C.P. Code wherein a right is created in favour of the plaintiffs of waiver of the said objection. A right which has enured to the plaintiff, in my view, cannot be taken away in the manner done on account of the impugned order.
9. In that view of the matter, the impugned order dated 28-09-2006 is required to be set aside and is accordingly set aside. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.