B.K. Behera, J.
1. The State of Orissa assails the order dated Jan. 8 1982 passed by the learned Subordinate Judge. Berhampur, on an application made under Section 8 of the Indian Arbitration Act (for short, the Act).
2. The opposite party had entered into an agreement with the Executive Engineer, Ganjam (R & B) Division for construction of the building meant for the Vigilance Office under Agreement No. F-2-256/1976-77 at an estimated cost of Rs. 2.25.524.00 and the stipulated date for completion of the work was one year from the date of receipt of the work order, i. e., from Nov. 5. 1976. The work was completed after the stipulated date in Mar. 1978. The case of the opposite party was that he had received Rs. 2,27,007/- and he was entitled to get a balance amount of Rs. 1,54,000/-from the State and also an amount of Rs. 1,00,000/- being his claim for miscellaneous items of work done by him for which he had not been paid. These claims of the opposite party were not accepted and therefore, he came up with an application under Section 8 of the Act.
3. The learned Subordinate Judge allowed the application holding that there was a dispute between the parties which should be referred to an arbitrator and as no arbitrator had been appointed by the Department in spite of issue of notice by the opposite party, his prayer for the appointment of an arbitrator should be allowed.
4. Mr. Section K. Das, the learned Additional Standing Counsel, has not challenged the finding of the learned Subordinate Judge that a dispute had arisen which called for arbitration. The only contention raised by him is that as the State was a necessary party, but had not been made a party to the proceeding, the application was not competent and was liable to be rejected as not maintainable. He has placed reliance on the principles laid down in AIR 1962 Punj 423 Union of India v. A.K. Gilkan and Co. and has submitted that a legal ground can be taken in the court of revision. Mr. Y. Das, the learned counsel for the opposite party, has submitted that the opposite party would seriously be prejudiced if such a contention, not raised before the learned Subordinate Judge and now raised, is accepted. He has submitted that the State had been represented by the learned Government pleader. An application has been made by the opposite party before this Court for amendment in the cause-title portion by bringing in the State of Orissa as the defendant No. 1 represented by the Executive Engineer. Roads and, Buildings, Berhampur Division, without prejudice to the legal stand taken that the contention raised on behalf of the State cannot be sustained.
5. The State was a necessary party, but had mot been made a party to the proceeding. As has been admitted by the learned Additional Standing Counsel, referring to the principles laid down in AIR 1979 SC 1682 Profulla Choron Requitte v. Satya Choron Requitte, a suit not properly constituted is liable to be dismissed. In this connection, reliance has also been placed by him on the principles enunciated in AIR 1953 SC 521 Deputy Commissioner. Hardoi v. Rama Krishna Narain and AIR 1947 All 18 (FB) Benares Bank Ltd v. Bhagwan Das.
6. Mr. Y. Das has submitted that although the State had not formally been made a party, it had been represented by the learned Government Pleader who had entered appearance and contested the; case in which counter had been filed on behalf of the Chief Engineer, Roads and Buildings of the Public Works Department, who had been made a party to the proceeding and it had been signed by the learned Government Pleader. He has also submitted that no objection had been raised before the learned Subordinate Judge with regard to the non-joinder of the State as a party which is now raised in this revisional court and under the provisions of Order 1, Rule 13 of the Civil P. C. for short, the Code), it must be held that the objection as to non-joinder of parties had been waived and no such objection can be raised at this stage.
7. In the instant case, the learned Government Pleader had appeared on behalf of the Public Officer under Order 27, Rule 8 of the Code, as would appear from his memorandum of appearance. The State was not a party to the proceeding and therefore, the learned Government Pleader could not have appeared on behalf of the State although in the memorandum of appearance, he had stated that he had appeared for the State as well.
8. In the counter filed for and on behalf of the Chief Engineer, no specific objection had been taken that the case had not properly been constituted as the State had not been made a party to the proceeding Order 1, Rule 13 of the Code reads:--
'Objection as to non-joinder or mis-joinder.--All objections on the groundof non-joinder or misjoinder of partiesshall be taken at the earliest possibleopportunity and, in all cases whereissues are settled, at or before such settlement, unless the ground of objectionhas subsequently arisen, and any suchobjection not so taken shall be deemedto have been waived.'
It has been laid down by this Courtin ILR (1966) Cut 116 Biswanath Mohapatra v. Bhramarbar Mohapatra that ifthe plea of non-joinder had not beentaken in the written statement or atthe trial, such a plea cannot be raisedfor the first time in appeal. ThisCourt has held in AIR 1971 Orissa 15Guru Charan Jena v. Satyanarayan JewThakur, that the objection as to nonjoinder of a party, if not taken at theearliest opportunity, cannot be entertained in Second Appeal. In (1972)2 Cut WR 1183 : (1972) 38Cut LT 819 GyanendranathShome v. Anam Bhoi it has been held that the provision of Order 1, Rule 13 is mandatory and unless the ground of objection as to non-joinder or misjoinder has subsequently arisen, such objection, if not taken at the earliest stage, shall be deemed to have been waived and cannot be urged for the first time in appeal. As has been held in (1918) 46 Ind Cas 648 : (AIR 1919 Cal 919) Nilmoni De v. Soorendra Nath Mitra an objection as to non-joinder or misjoinder of parties cannot be taken for the first time in revision before the High Court. In the instant case, however, the State was not a party to the proceeding before the learned Subordinate Judge and it could not therefore, be said that this objection must be said to have been waived by the State.
9. The learned counsel for the opposite party has invited my attention to the principles laid down in AIR 1975 Punj and Har 39 Frick India Ltd. v. Executive Engineer, Project Public Health Division No. 4, Chandigarh. In that case, instead of mentioning the Government of India through the Executive Engineer, the applicant mentioned Executive Engineer, Chandigarh in the application under Sections 14 and 17 of the Act. It was held that the application was not bad on account of non-joinder of necessary party and it was a mere misdescription which could be corrected by the court at any time. This Court has ruled in AIR 1977 Orissa 119 Jamuna Beharani v. Patarla Polayya Desibehera that the question of maintainability of the suit on the ground of non-joinder of necessary party not enabling the court to pass an effective decree or the question of limitation or want of jurisdiction of the court to entertain the suit and/or other such fundamental questions which cut at the root of the maintainability of the suit can be raised in the higher court even though such questions were abandoned in the lower court. In the instant case, the State was a necessary party to the proceeding, but had not been made a party to it. As the State was not a party to the proceeding before the learned Subordinate Judge, it could not be precluded from raising the objection now raised because of the provisions of Order 1, Rule 13 of the Code. I am of the view that the proceeding before the learned Subordinate Judge had not properly been constituted and the legal objection raised by the State as to its non-maintainability must prevail. But as an application has been made to bring the State as a party to the proceeding, I feel that it would be just, reasonable and proper to afford an opportunity to the opposite party to move the learned Subordinate Judge in this regard.
10. In the result, I would allow the revision and set aside the impugned order with a direction that the application made before this Court with a prayer for addition of the State as a party to the proceeding shall be transmitted to the court of the learned Subordinate Judge who shall deal with the application in accordance with law. In the circumstances of the case. I make no order as to the costs of this revision.