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Sheo Murat Vs. Seth Jhabbu Mal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in122Ind.Cas.597
AppellantSheo Murat
RespondentSeth Jhabbu Mal
Excerpt:
civil procedure code (act v of 1908), section 99, order i, rule 9 - contract act (ix of 1872), section 43--joint promisees--suit by some alone--summary dismissal for non-joinder, legality of--procedure to be followed. - - accordingly the lower appellate court held that shiam narain being a necessary party the suit must fail order i, rule 9 states: 'no suit shall be defeated by rea-bon of misjoinder or non-joinder of parties' and section 99, civil procedure code, is to the same effect......plaintiff whose suit has been dismissed by the lower appellate court on the sole ground that one shiam narain was a necessary party as a plaintiff and had not been joined as a plaintiff or defendant. the suit was brought by the plaintiff sheo murat alone on the allegation that he had made a contract with the defendant and had supplied bhusa to the defendant in pursuance of that contract. the defendant produced a written agreement which was accepted by the lower appellate court as the basis of the contract, and not only the plaintiff but also shiam narain were parties on one side in that agreement and the defendant was the contracting party on the other side. accordingly the lower appellate court held that shiam narain being a necessary party the suit must fail order i, rule 9 states:.....
Judgment:

1. This is a second appeal by the plaintiff whose suit has been dismissed by the lower Appellate Court on the sole ground that one Shiam Narain was a necessary party as a plaintiff and had not been joined as a plaintiff or defendant. The suit was brought by the plaintiff Sheo Murat alone on the allegation that he had made a contract with the defendant and had supplied bhusa to the defendant in pursuance of that contract. The defendant produced a written agreement which was accepted by the lower Appellate Court as the basis of the contract, and not only the plaintiff but also Shiam Narain were parties on one side in that agreement and the defendant was the contracting party on the other side. Accordingly the lower Appellate Court held that Shiam Narain being a necessary party the suit must fail Order I, Rule 9 states: 'No suit shall be defeated by rea-Bon of misjoinder or non-joinder of parties' and Section 99, Civil Procedure Code, is to the same effect. We consider that the decree of the lower Appellate Court is incorrect. Accordingly we allow this appeal with costs and remand the case to the lower Appellate Court under Order XLI, Rule 23 with the direction to re admit the appeal under it's original number and to issue a notice to Shiam Narain to state whether he agrees to being joined as a plaintiff under Order I.r. 10 (3). In case Shiam Narain does not assent to being joined as a plaintiff as the lower Appellate Court shall join him as a pro forma defendant. The lower Appellate Court will then proceed to dispose of the appeal on its merits and it will be open to the lower Appellate Court to come to any findings at which it might have come if the suit had been brought by the plaintiff and Shiam Narain jointly. We allow costs of this appeal to the plaintiff-appellant. Costs so far incurred in the lower Appellate Court will abide the result.


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