Case Note & Summary
The case arose from a civil suit filed by the respondent (original plaintiff) for specific performance, declaration, permanent injunction, partition, and separate possession against ten defendants, including the applicants (defendants 5-8). The dispute concerned an agreement dated 08.04.2013 for sale of land for Rs. 70 lakhs, where the respondent claimed possession and alleged that a subsequent sale deed dated 16.12.2015 in favor of the applicants was collusive and void. The respondent sought temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908, to restrain the applicants from making constructions and creating third-party rights. The trial court rejected the injunction application on 20.08.2016, finding no prima facie case, irreparable loss, or balance of convenience. Aggrieved, the respondent filed Miscellaneous Civil Appeal No. 39 of 2016 before the District Judge, Amravati, but impleaded only the applicants (defendants 5-8) as respondents, omitting the remaining six defendants. The applicants moved an application for dismissal of the appeal on the ground of non-joinder of necessary parties, contending that the suit and appeal involved allegations against all defendants, and any decision would affect their rights. The appellate court dismissed the application on 07.04.2017, holding that since the temporary injunction was sought only against the applicants, the other defendants were not necessary parties.
The primary legal issue before the High Court in this civil revision was whether the appeal was maintainable without arraying all defendants. The applicants argued that non-joinder was fatal because the court would have to examine the entire chain of transactions and allegations of collusion involving all defendants. They relied on Ch. Surat Singh v. Manohar Lal, AIR 1971 SC 240, and other authorities to stress that all necessary parties must be before the court. The respondent countered that the relief was limited to the applicants, and the appellate court could add the missing parties under Order 41 Rule 20 CPC if required, citing E. Madhavi Amma v. E. Indusekharan, AIR 1992 Ker 390.
The High Court analyzed the pleadings and the trial court’s order, noting serious allegations of collusion and fraud against all defendants. The appeal memo itself raised grounds concerning defendant No. 1 and the validity of the sale deed, directly involving non-impleaded defendants. The court held that without those defendants, the appellate court could not effectively adjudicate the appeal. Order 41 Rule 20 applies only to inadvertent omissions, not deliberate exclusion. Consequently, the revision was allowed, the impugned order dated 07.04.2017 was set aside, and the appeal stood dismissed. The decision underscored that an appeal against an interlocutory order must include all parties whose rights are implicated by the allegations.
Headnote
A) Civil Procedure - Appeal - Maintainability - Non-joinder of necessary parties - Code of Civil Procedure, 1908, Order 41 Rule 20 - In an appeal arising from rejection of a temporary injunction application, all defendants in the suit are necessary parties where the appeal involves allegations of collusion and fraud against all defendants and the appeal memo raises grounds concerning those defendants. Non-joinder renders the appeal not maintainable. The appellate court cannot cure the defect by invoking Order 41 Rule 20 when there was a deliberate omission to implead necessary parties. (Paras 2, 11-12)
Issue of Consideration
Whether the appeal filed by the respondent against rejection of his application for temporary injunction, without arraying all the defendants as parties in the appeal, was maintainable ?
Final Decision
The revision application allowed; impugned order dated 07.04.2017 set aside; application for dismissal of appeal allowed; Miscellaneous Civil Appeal No. 39 of 2016 dismissed. Held that non-joinder of all necessary defendants rendered the appeal not maintainable.
Law Points
- Non-joinder of necessary parties in appeal is fatal
- especially where allegations of collusion and fraud involve all defendants
- Order 41 Rule 20 CPC does not cure deliberate exclusion
Case Details
2018 LawText (BOM) (04) 142
Civil Revision Application (CRA) No. 106 of 2017
Shri J.T. Gilda, Advocate with Shri Anup Gilda, Advocate for the applicants; Shri Prasad Dharaskar, Advocate for the respondent.
Gopal Narayandasji Panpaliya, Pravin s/o Balkrushnaji Malu, Sau. Sandhya w/o Subhash Talda, Suraj s/o Ashokkumar Talda
Riyaj Patel s/o Musa Patel
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Nature of Litigation
Civil revision application challenging the appellate court's decision that an appeal against rejection of temporary injunction was maintainable without all defendants being made parties.
Remedy Sought
The applicants (original defendants 5-8) sought quashing of the appellate court's order dated 07.04.2017 and dismissal of the appeal for non-joinder of necessary parties.
Filing Reason
The appellate court dismissed the applicants' application for dismissal of the appeal on the ground of non-joinder, holding that the other defendants were not necessary parties.
Previous Decisions
The trial court rejected the respondent's temporary injunction application on 20.08.2016. The respondent then filed Miscellaneous Civil Appeal No. 39 of 2016 without impleading all defendants. The appellate court dismissed the applicants' application for non-joinder on 07.04.2017.
Issues
Whether the appeal filed by the respondent against rejection of his application for temporary injunction, without arraying all the defendants as parties in the appeal, was maintainable?
Submissions/Arguments
Applicants contended that non-joinder of all defendants was fatal because the appeal involved allegations against all defendants and the court would have to examine the entire chain of transactions; without their presence the appeal could not be decided.
Respondent argued that relief was sought only against the applicants, so other defendants were not necessary; the appellate court could add them under Order 41 Rule 20 CPC if needed.
Ratio Decidendi
In an appeal arising from an order on a temporary injunction application, where the suit involves allegations of collusion and fraud against all defendants and the appeal memo raises grounds concerning defendants who are not parties, all defendants are necessary parties. Non-joinder renders the appeal not maintainable, and Order 41 Rule 20 CPC does not cure the defect as it applies only where some of the necessary parties were inadvertently not impleaded, not where a deliberate choice was made to exclude them.
Judgment Excerpts
the question that arises for consideration in this revision application is, as to whether the appeal filed by the respondent against rejection of his application for temporary injunction, without arraying all the defendants as parties in the appeal, was maintainable ?
the thrust of the pleadings of the respondent is that the defendants have colluded to deprive him of rights under the agreement dated 08.04.2013 and that there have been collusive decrees obtained by the defendants in suits filed inter se between them, demonstrating that the sale deed dated 16.12.2015 executed by defendant Nos.2, 3, 4 and 9 in favour of the applicants is illegal, null and void and that it deserves to be cancelled. There are serious allegations of collusion and fraud made against all the defendants by the respondent.
the trial Court in its order dated 20.08.2016 has dealt with all such allegations on the basis of material available on record and it has rendered observations pertaining to all the defendants
Procedural History
Respondent filed Special Civil Suit No. 107/2016 for specific performance etc. with ten defendants. Respondent filed application for temporary injunction under Order 39 Rules 1 and 2 CPC. Trial court rejected the application on 20.08.2016. Respondent filed Miscellaneous Civil Appeal No. 39/2016 without impleading all defendants, making only defendants 5-8 (applicants) as parties. Applicants filed application for dismissal of appeal for non-joinder. Appellate court dismissed the application on 07.04.2017, holding appeal maintainable. Applicants filed the present civil revision application.
Acts & Sections
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2, Order 41 Rule 20
