H.R. Krishnan, J.
1. Among the various grounds urged in this application the only one on which it was admitted for hearing was whether Government should be impleaded either as a necessary party or at least as a proper party. As it appears, the respondent is not keen on impleading Government unless there is an express order by this Court to this effect. The question is whether it is a necessary party: the parties have argued this case on that basis, The question before us is:
'Whether in a suit for the setting aside of the revenue sale for the realisation of Government dues, the Government should also be impleaded along with the auction purchaser?'
2. The opposite party owing some dues to the Government on account of takabi and having defaulted the latter look steps under the Madhya Pradesh Land Revenue Code to attach and sell in the revenue Court certain agricultural land belonging to the former. Sufficient opportunity was afforded to him to make a deposit of the dues; but he failed. Accordingly delivery of possession was given by the revenue Court and the auction purchaser entered. Thereupon the defaulter brought this suit ostensibly for restoration of possession, but actually for the setting aside of the revenue sale or a declaration that it was void and inoperative Accordingly issues have been framed. The position of the defendant-auction-purchaser is that unless the certificate-holder-Government is impleaded he will have no remedy against it in the event of the sale being set aside. He has paid the certificate dues to Government and unless he is in a position to recover them as of right any decision in this suit is apt to be grossly unjust. It appears that in certain States the local revenue sale laws expressly provide that whenever a sale is set aside by a Court, Government should refund the amotnt to the auction-purchaser: but it is common ground that there is no such provision in the statute itself or statutory rules governing the revenue sales in this State.
Accordingly we are dealing with one dispute between the plainliff-dcfauller. the Government (claiming the dues against the plaintiff) and the auction-purchaser who has deposited the money in the revenue Courl which in its turn has been appropriated by Government, and again another in the suit between the defaulter and the auction-purchaser. On the face of it, it would appear that the certificate-holder-Government is a necessary parly because the controversy cannot be fully or justly decided in its absence; any decision passed is bound to affect the interests of Government also and in its absence from the case it cannot be enforced.
3. The defendant has cited Umed Mal v. Chand Mal, AIR 1926 PC 142, for the elucidation of the general principle that a party from which one of the litigants derives the title has to be impleaded as a necessary party. There the question was, whether the mortgagor from whom the plaintiff was claiming had actually included the suit property in the mortgage; but the Courl had proceeded to decide it without impleading this mortgagor. It was held to be a material irregularity. The more recent case reported in Chenthiperumal Pillai v. D.M. Devasahayam. AIR 1956 Trav-Co 181 (FB), is very much to the point here. In that case there was a revenue sale but subsequently the Government set it aside; thereupon the purchaser brought a suit. He did not implead the Government and the High Courl held in revision that-
'When a Government order setting aside a revenue sale is sought to be cancelled in a suit, the Sirkar is a necessary parly to the suit as no decree can be passed without the presence of the Sirkar on the party array.'
In the instant case the suit is for the setting aside of the revenue sale which has been confirmed and implemented by Government and by the same logic the certificate-holder Government is a necessary party.
4. As against it the plaintiff has cited a number of rulings, none of which, however has a direct application. For example, in the ruling in Manikrao v. Hem Raj, (1928) 111 Ind Cas 141 (Nag), it has been held that-
'An order refusing to join a person as a party to suit made under Order 1. Rule 10 of the Civil Procedure Code can no be revised under 115 of the Code.'
Certainly, where the impleading or refusal to implead a particular party in the litigation does not go to the root of the suil and it is still possible for the Court to do justice to the parly before it. such impleading or refusal to implead is a purely procedural matter and may not be revised. On the other hand when a party's presence in the suit array is essential for a proper decision of the controversy, an order refusing to direct its impleading would be revisable because the trial Court has no jurisdiction to proceed without that party before it and it would become the exercise of a jurisdiction which the Court does not really have. The distinction is that in the one case the impleading or otherwise does not go to the root of the suit while in the other it does.
5. Another case cited is Kashi v. Sada-shiv, (1897) ILR 21 Bom 229. There the position was that a lessee from Government was seeking to eject another who also claimed to be a subsequent lessee. The High Court was half-inclined to direct the impleading of Government but since it had been made al a late stage during the appeal it was not prepared to force it. The distinction between that case and the present one is that in the instant case the revenue sale is the basis of the defendant's title and there was a delivery of possession during an execution in the revenue Court. In the Bombay case it was one contractual relationship against another set up by the respective parties.
6. Yet another case sought to be introduced for this purpose is the one reported in Fida Hussain v. Fazal Hussain, 1963 Jab LJ 282: (AIR 1963 Madh Pra 232). It is altogether dissimilar to the present one; it is difficult to see how that case is analogous to the instant one.
7. Finally, there are two cases from Calcutta in which it has been held definitely that in a suit of this nature Government is not a necessary party; Birendra Nath v. Mir Mahabubar Kahaman, AIR 1947 Cal 332, is the later of the two while the earlier one is the old case in Bal Mokund Lal v. Tirjoodhun, (1883) ILR 9 Cal 271. In both cases there were revenue sales and subsequently the defaulters sought to sue the auction purchasers for restoration of possession on the ground that the sale was not a valid one. That way those suits are very similar to the instant one. There is, however, one basic difference which the plaintiff has tried to overlook. It is stated in the earlier judgment, (1883) ILR 9 Cal 271, that:
'It appears that Section 35 by itself does not afford any ground for the contention that the Secretary of State was a necessary party. It merely provides that in the event of a sale being annulled by a Court of Justice and the former proprietor being restored to possession the purchase money shall be refunded to the purchaser by Government together with interest at the highest rate of the current public securities.'
Thus statute had expressly provided in Section 35 of the Public Demands Recovery Law of that time that whenever a civil Court sets aside a revenue sale Government should refund monies paid by the purchasers in the auction: in other words, statute has enabled relief to be given to the purchaser in these circumstances without his getting a decree against the Government. With such a law it would of course be unnecessary to implead Government in such suits; but in the absence of such a statutory provision it is necessary to have a decision expressly against Government which is not possible unless it is impleaded.
8. It is even suggested at the bar that the present suit is not one for the setting aside or declaring to be void the revenue sale concerned. A perusal of the plaint and of the list of issues would show that the validity of the revenue sale is the key to the entire controversy; in fact, issues 3, 4, 6, 6, 7 are directly about the revenue sale.
9. The result of the foregoing discussionis that Government is a necessary party to thesuit and the lower Court was not right in rejecting the defendant's prayer that it shouldbe impleaded. The application is allowed andit is directed that the plaintiff should take stepsto implead Government The trial Court shouldgive reasonable time to enable him to do so;if he still persists in refusing to implead Government the suit will have to be struck off asnon-maintainable. The applicant shall get hiscosts and pleaders fee according to rules, fromthe opposite party.