Non-joinder of necessary parties is a fatal defect that cannot be rectified at the appellate stage, as established by precedent.

Order :

(Rakesh Mohan Pandey, J.)

1. The plaintiffs/petitioners/appellants before the learned Court below have filed this petition challenging the order dated 28.08.2019 passed in Civil Appeal No. 60A/2018 by the First Additional District Judge, Balodabazar, whereby an application moved under Order 1 Rule 10 of CPC was rejected and in the application moved under Order 22 Rule 4 of CPC, time was granted to the petitioners to explain reasons for the inordinate delay.

2. The facts of the present case are that the plaintiffs filed a Civil Suit for declaration of title, permanent injunction and further declaration that the sale-deed dated 16.01.1963 is null and void. The Civil Suit was filed on 29.04.2014. The sale-deed was executed in favour of Anand Masiha and Smt. Anand Kumari, but only Smt. Anand Kumari was impleaded as a defendant. Anand Masiha died in 2008, but his legal heirs were not impleaded as the defendants in that suit. The Civil Suit was dismissed vide judgment and decree dated 17.07.2018.

3. The plaintiffs preferred a regular appeal before the learned First Appellate Court and a summons was issued to the respondents/defendants. As per the report received from the office of the First Appellate Court, respondent No. 3/defendant No. 3 died on 09.10.2017 prior to the judgment and decree of the learned trial Court. An application under Order 22 Rule 4 of CPC was moved by the petitioners to implead his legal heirs on 18.04.2019. The defendants/respondents filed their reply to those applications and the learned First Appellate Court granted time to the petitioners to explain the reasons for the inordinate delay.

4. Mr. Hemant Gupta, counsel appearing for the petitioners would submit that the sale-deed dated 16.01.1963 was executed in favour of Smt. Anand Kumari and was the defendant in the Civil Suit filed before the learned trial Court. He would further submit that as the Late Anand Masiha was not a party to the sale-deed; there was no need to bring his legal representatives on record. He would also submit that during the pendency of the present petition, Smt. Anand Kumari died and his legal representatives have been brought on record. It is contended that the learned trial Court without appreciating this fact dismissed the suit on the grounds that there was a non-joinder of parties. It is further contended that the application moved under Order 22 Rule 4 of CPC with regard to the death of Darthi/respondent No. 3 is still pending consideration before the learned First Appellate Court and the learned Court below has sought explanation with regard to the delay.

5. On the other hand, Mr. Manoj Paranjpe, counsel appearing for respondents No. 3A and 3B would oppose the submissions made by Mr. Gupta. He would submit that the sale-deed was executed in favour of Anand Masiha and Smt. Anand Kumari. He would further submit that according to para 1 of the plaint, the suit property was entered into the names of Anand Masiha and Smt. Anand Kumari; therefore, both were necessary parties. He would also submit that only Smt. Anand Kumari arrayed as defendant No. 1 in the suit, but legal representatives of Anand Masiha were not impleaded as the defendants, who died in the year 2008 prior to the filing of the Civil Suit. It is further contended that in the written statement, a specific objection was raised by the defendants and an issue was also framed in this regard. It is further contended that one of the grounds for the dismissal of the suit was non-joinder of parties. It is stated that the lacuna which was one of the grounds for the dismissal of the suit of the plaintiffs cannot be rectified at the appellate stage. In support thereof, he placed reliance on the judgment passed by the High Court of Andhra Pradesh in the matter of Jahangirji (died) by Lrs. And others vs. K. Kumar reported in 2011 SCC OnLine AP 744 : (2012) 2 ALD 406 and Karipalli Christy Caroline and Others vs. Karipalli Shepard Kinghs burgh (died) and Others reported in 2024 SC