IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 RSA.No. 1028 of 2006() ---------------------- AGAINST THE JUDGMENT DATED 27.5.2006 IN A.S.NO.253/99 ON THE FILE OF THE DISTRICT COURT, TRIVANDRUM ARISING FROM THE FINAL ORDER AND DECREE IN O.S.NO.81/85 ON THE FILE OF THE IST ADDITIONAL SUB-COURT, TRIVANDRUM APPELLANT/RESPONDENT/PLAINTIFF IN O.S. ----------------------------------------------------------- A.GIREESH CHANDRA BABU, BIJU BHAVAN, KUNNUMPURATHU ELAVATTOM, KATTACHALKONAM MURI, VITHURA VILLAGE, NEDUMANGAD TALUK. BY ADV. SRI.RAJAN JOSEPH RESPONDENT(S): APPELLANTS/DEFENDANTS ------------------------------------- 1. DIVISIONAL FOREST OFFICER, THIRUVANANTHAPURAM. 2. DINESH CHANDRA BABU, BIJU BHAVAN, KUNNUMPURATH ELAVATTOM, KATTACHAKOM MURI, VITHURA VILLAGE, NEDUMANGAD TALUK. 3. K.LALITHA DEVI, -DO- -DO- 4. K.SARALA DEVI, -DO- -DO- 5. K.JAYAKUMARI, -DO- -DO- RSA NO.1028/06 2 6. K.SATHI, -DO- -DO- 7. K.GOKULAM, -DO- -DO- 8. STATE OF KERALA, REP. BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. # 9. KRISHNAN, S/O. LEKSHMANAN VAIDYAR, POONAMBIKONATHU VEEDU, ANAPPARA, VITHURA VILLAGE, NEDUMANGADU TALUK. 10. LEKSHMANAN VAIDYAR, PRABHULLA CHANDRAN, -DO- -DO- 11. CHANDRA PRABHA, D/O. YESODHA, -DO- -DO- # 12. JANAKI BHARATHI, BHARATHI BHAVAN, T.C.2/1600, GAUREESAPATTOM, THIRUVANANTHAPURAM. 13. L.PRASAD, -DO- -DO- # RESONDENTS 9 TO 13 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 17.11.06 ON I.A.NO.2500/06 ADV. SRI.GEORGE ZACHARIAH ERUTHICKAL FOR R3 TO R7 ADDL.A.G.SRI.RANJITH THAMPAN THIS REGULAR SECOND APPEAL ALONG WITH R.S.A.NO.274 OF 2007 HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON 19.02.2009 PASSED THE FOLLOWING: CR” V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. Nos. 1028 of 2006 and 274 of 2007 * * * * * * * * * * * * * * * * * * Dated: 19th day of February, 2009. JUDGMENT An interesting question of locus standi comes up for resolution in these Second Appeals. 2. The common appellant in these Second Appeals is the plaintiff in O.S. No. 81 of 1985 on the file of the I Addl. Sub Court, Thiruvananthapuram. The said suit was one for partition and separate possession of the plaintiff's half share over the plaint schedule property admeasuring 30 acres of land and also for a temporary injunction restraining the 8th defendant State of Kerala represented by the Chief Secretary from issuing pattayams in respect of the plaint schedule property to any of the other defendants in the suit. THE PLAINTIFF'S CASE 3. The plaint schedule property admeasuring 30 acres comprised in re-survey No. 6 of Vithura Village (formerly Arianad Village) of Nedumangad Taluk in Thiruvananthapuram District R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:2:- belonged to the plaintiff's deceased mother Kunjikamakshi as per Ext.A1 settlement deed dated 1-7-1118 M.E. corresponding to the year 1943. Subsequently Kunjikamakshi died on 4-12-1120 M.E.. On her death the plaint schedule property devolved on the plaintiff and his brothers and sisters who are defendants 1 to 6. The plaintiff and defendants 1 to 6 have thus become co-owners of the property. Even though the plaintiff and defendants 1 to 6 are having equal rights over the property, as per an oral agreement between them the plaintiff is entitled to get half of the plaint schedule property. The 7th defendant Lakshmanan Vaidhyan Krishnan is a person who has planted medicinal plants in the plaint schedule property with the permission of the parents of the plaintiff. Hence he is also made a formal party to the suit. In case defendants 1 to 7 succeed in getting some favourable orders from the Government it may not be possible for the plaintiff to get effective relief in the suit. As the plaintiff is not seeking any permanent relief against the 8th defendant State of Kerala and since time was not sufficient for issuing notice to the Government the plaintiff has not sent a notice under Sec. 80 C. P.C. and has filed a R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:3:- petition seeking exemption from notice. The other legal heirs are attempting to get assignment of the property from the Government. It has, therefore, become necessary for the plaintiff to seek partition and separate possession of his ½ share over the plaint schedule property. The plaintiff also seeks a temporary injunction against the 8th defendant State of Kerala restraining the State from taking steps for assignment of the plaint schedule property to the other legal heirs. Hence the suit. POST INSTITUTIONAL DEVELOPMENTS 4. Defendants 3, 5 and 6 remained ex-parte and did not enter appearance through counsel. The 7th defendant died and his legal representatives were impleaded as additional defendants 9 to 11. Eventhough defendants 1, 2 and 4 entered appearance through Adv. Sri. A. Mahalchandra Babu, the 7th defendant through Advocate Sri. S.V. Premakumaran Nair, 8th defendant State of Kerala through the Government Pleader Adv. Sri. K.R. Nandakumar, Addl. defendants 9 to 11 through Advocate Smt. S. Indira Bai and Additional 12th and 13th defendants through Adv. Sri. S. V. Premakumaran Nair, all of them subsequently remained ex parte R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:4:- without filing a written statement. THE EX PARTE DECREES 5. On 14-12-1988 the learned Sub Judge after marking Ext.A1 settlement deed dated 1-7-1118 M.E. through the plaintiff who filed an affidavit, passed a preliminary as prayed for on the view that the plaint averments stood proved by affidavit and Ext.A1. 6. I.A. 790 of 1989 was an application filed by the plaintiff for the passing of a final decree. Eight years thereafter, the trial court passed a final decree also on 28-10-1997. THE CHALLENGE AGAINST THE EX PARTE DECREES 7. The State, represented by the Chief Secretary, filed I.A. No. 3783/1994 under Order IX R. 13 C.P.C. to set aside the ex- parte preliminary decree. The said application filed through the Addl. Government Pleader Sri. M.M. Hussain was dismissed on 25- 3-1996. Nearly three years thereafter one Sri. Shripal, the then Divisional Forest Officer (D.F.O for short) , Thiruvananthapuram, filed C.M.A. No. 117 of 1999 before the District Court, Thiruvananthapuram, through Adv. Sri. M. Rajagopalan Nair, the District Government Pleader, Thiruvananthapuram, against the order R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:5:- passed by the trial court on I.A. No. 3783/1984 dismissing the petition filed by the State under Order IX Rule 13 C.P.C. In the meanwhile on 28-10-1997 the trial court had passed a final decree allotting 14.87 acres of land to the plaintiff and awarding a sum of Rs. 2248.50 towards the value of a share with a charge on the plot allotted to the defendants. A.S. Nos. 252 and 253 of 1999 were two appeals preferred by Sri.Shripal, the D.F.O., Thiruvananthapuram against the preliminary decree and final decree respectively passed by the trial court. The C.M.A. referred to above as well as the two appeals filed by the D.F.O. were belated appeals. I.A. 1980 of 1999 in C.M.A. 117 of 1999, I.A. 1983 of 1999 in A.S. 252 of 1999 and I.A. No. 1978 of 1999 in A.S. No. 253 of 1999 were applications filed by the D.F.O. for condoning the delay in filing the three appeals. Eventhough the plaintiff and defendants 2 to 6 opposed the applications for condoning the delay the learned District Judge as per common Order dated 9-1-2001 allowed the applications for condoning the delay in filing the appeals. C.R.P. Nos. 1347 , 1388 and 1438 of 2001 were filed before this Court challenging the common order passed by the R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:6:- District Judge allowing the petitions to condone the delay. Those C.R.Ps were dismissed by this Court on 17-1-2006. The D.F.O. had also sought leave of the lower appellate court to file the above appeals as he was not a party before the trial court. I.A. No. 1981 of 1999 was the leave application filed in A.S. No. 252 of 1999 and I.A. No.1976 of 1999 was the leave application filed in A.S. No. 253 of 1999. The said petitions were also allowed by the lower appellate court. Subsequently as per common judgment dated 27- 5-2006 the lower appellate court allowed the appeals filed by the D.F.O. against the preliminary and final decrees and dismissed the suit after holding that the plaint schedule property which was a reserve forest could not have been the subject matter of a suit for partition and that the judgments and decrees passed by the trial court were obtained by fraud and collusion. C.M.A. 117 of 1979 was dismissed by the lower appellate court as unnecessary in view of the decision taken on the main appeals against the ex parte decrees. Hence, these Second Appeals. THE QUESTIONS OF LAW IN SECOND APPEALS 8. The common questions of law formulated in the R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:7:- memmoranda of Second Appeals are the following:- i) Whether the Ist respondent Divisional Forest Officer is entitled to file appeal against the decree of the court below in view of the provisions contained in Section 79 C.P.C. and Article 300 of the Constitution of India? ii) Whether the Ist respondent Divisional Forest Officer is entitled to file appeal against the decree of the court below when the 8 th respondent State of Kerala is already in the party array and the decree as against the State has achieved finality ? 9. I heard Sr. Advocate Sri. Rajan Joseph, the learned counsel appearing for the common appellant and the learned Addl. Advocate General Sri. Ranjith Thampan appearing for the State of Kerala. STAND OF THE PLAINTIFF/COMMON APPELLANT 10. Sr. Advocate Sri.Rajan Joseph appearing for the appellant/plaintiff made the following submissions before me in support of these appeals:- This was a case in which the State of Kerala was not a necessary or proper party. The State was impleaded as the 8th defendant only because some of the plaintiff's brothers had applied R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:8:- to the State for pattayams and also for effecting mutation. No relief of a permanent nature was claimed in the suit against the State. The plaintiff had only asked for a temporary injunction against the State restraining the State from issuing pattayams with regard to any portion of the plaint schedule property to any of the heirs of the plaintiff's parents. No written statement was filed by the State. On 30-11-1988 the State was declared ex parte. On 14-12-1988 a preliminary decree for partition was passed as prayed for. The plaintiff had thereafter filed I.A. 790 of 1989 for the passing of a final decree. A commission was issued by the final decree court. I.A. No. 3783 of 1994 was filed by the State represented by the Chief Secretary under Order IX Rule 13 C.P.C. to set aside the ex parte preliminary decree. On 25-3-1996 the said application was dismissed by the trial court. The said order has become final. Subsequently on 28-10-1997 a final decree was passed allotting plot HLMNOPI admeasuring 14.87 acres to the plaintiff and plot ABCDEFGHIJK to the other sharers namely defendants 1 to 6 jointly. C.M.A. No. 117 of 1999 was an appeal filed by the D.F.O., Thiruvananthapuram before the District Court, Thiruvananthapuram R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:9:- challenging the order passed by the trial court on I.A. 3783 of 1994. Similarly, the D.F.O. also filed separate appeals against the preliminary and final decrees as A.S. Nos. 252 and 253 of 1999 before the District Court, Thiruvananthapuram. All the three appeals were filed with petitions to condone the inordinate delay. Eventhough the appellant/plaintiff opposed the delay petitions, the same were allowed by the District Judge. Subsequently as per the impugned common judgment dated 27-5-2006 the learned District Judge allowed both A.S. Nos. 252 and 253 of 1999 and dismissed the suit filed by the appellant. C.M.A. No. 117 of 1999 was dismissed as unnecessary. The appellant/plaintiff had questioned the maintainability of the appeals filed by the D.F.O. who was not a party before the trial court. Merely because the lower appellate court had granted leave to the D.F.O. for filing the appeals, it does not alter the position. The D.F.O. Is not a person aggrieved by the decrees. The State who was the 8th defendant in the suit will continue to be the party aggrieved by the decrees. When the State had unsuccessfully challenged the ex parte preliminary decree by filing I.A. 3783 of 1994 under Order IX Rule 13 C.P.C., it was not R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:10:- open to the D.F.O. to allege fraud or collusion on the part of the Government Pleader in not filing a written statement or appeals against the preliminary and final decrees. When an ex parte decree is passed against the defendant in a suit, such defendant has two clear options, - one to file an appeal under Sec. 96 C.P.C. and another, to file an application under Order IX Rule 13 C.P.C. for setting aside the ex parte decree. In a case where the application under Order IX Rule 13 C.P.C. Is dismissed the doctrine of “issue estoppel” and “cause of action estoppel” would get attracted and it may not be permissible for the defendant thereafter to file an appeal and raise the very same contentions in the appeal. His remedy in such a case would only be to file an appeal under Order XLIII Rule 1 C.P.C. challenging the dismissal of the petition filed under Order IX Rule 13 C.P.C. (Vide Bhanu Kumar Jain v. Archana Kumar and another - AIR 2005 SC 626). In the case on hand, the State did file an application as I.A. 3783/1994 under Order IX R. 13 C.P.C. and the same was dismissed on 25-3-1996. The said dismissal has become final. No appeal has been filed by the State under Order XLIII Rule 1 C.P.C. challenging the dismissal of I.A. R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:11:- 3783 of 1994. Similarly, the State has not filed any appeal either against the preliminary decree passed on 14-12-1988 or against the final decree passed on 28-10-1997. Even if the State were to file an appeal against the final decree, Sec. 97 C.P.C. would preclude the State from filing such an appeal since no appeal had been filed by the State against the preliminary decree. When the State alone which was a party defendant before the trial court could have filed appeals against the decrees passed by the trial court, it was the D.F.O who filed the appeals. The view taken by the lower appellate court to hold that the appeals filed by the D.F.O were maintainable is opposed to Sec. 79 C.P.C. as well as Article 300 of the Constitution of India. In a case arising from Andhra Pradesh, the Supreme Court had occasion to consider the maintainability of a Writ Petition filed by the Conservator of Forests challenging an order passed by the District Collector in favour of certain pattadars. In Chief Conservator of Forests, Govt. of A.P. v. Collector and Others - AIR 2003 SC 1805 the Apex Court observed as follows:- “6. Mr.P.P. Rao, learned counsel appearing for the pattedars-respondents in Civil Appeal No. 8580 of 1994 and Mr. Harish N. Salve, learned Senior Counsel R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:12:- appearing for the Pattedars-respondents in Civil Appeal No. 9097 of 1995, raised a preliminary objection as to the maintainability of the writ petition filed by the Chief Conservator of Forest as well as the appeal arising therefrom. Article 300 of the Constitution of India, it is contended, provides that the Government of a State may sue or be sued in the name of the State; Section 79 of the Code of Civil Procedure, 1908 directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and S. 80 thereof directs notice to the Secretary to that State or the Collector of the District before the institution of the suit; and Rule 1 of Order 27 lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the Constitution or the Code of Civil Procedure can file a suit or initiate any proceeding in the name of the post he is holding, which is not a juristic person. Ms. K. Amreswari, learned senior counsel appearing for the appellants, has argued that before filing the appeal, the Chief Conservator of Forest had obtained orders and, therefore, the writ petition and the appeal should be deemed to be filed by the Government of Andhra Pradesh; not naming the Government of Andhra Pradesh in the writ petition as the petitioner or in the appeal as the appellant is only a procedural matter and, therefore, it is not fatal to the maintainability of the writ petition and the appeal. 7. To appreciate the contention of the learned senior counsel, it will be useful to refer to the relevant provisions of the Constitution of India (for short, “the Constitution) and the Code of Civil Procedure, 1908 (for short, “the C.P.C.), Article 300 of the Constitution falls in Chapter III, which deals with property, contract, rights, liabilities, obligations and suits. Article 300 reads as follows: R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:13:- “300. Suits and proceedings – (1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted. (2) If at the commencement of this Constitution - (a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and (b) any legal proceedings are pending to which a province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings”. 8. From a perusal of the provision, extracted above, it is evident that the Government of India as also the Government State may sue or be sued by the name of the Union of India or by the name of the State respectively, subject, of course, to any provisions which may be made by Act of Parliament or of Legislature of such State by virtue of powers conferred by the Constitution. 9. Section 79 of the C.P.C. deals with suits by or against the Government . It reads thus: R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:14:- “79. Suits by or against Government – In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be shall be - (a) In the case of a suit by or against the Central Government, the Union of India; and (b) in the case of a suit by or against a State government, the State A plain reading of S. 79 shows that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, in the case of the Central Government, the Union of India and in the case of the State Government, the State, which is suing or is being sued. 10. Order 27 of rule 1, as mentioned above, deals with suits by or against the Government or by officers in their official capacity. Rule 1 of Order 27, C.P.C. says that in any suit by or against the Government, the plaint or the written statement shall be signed by such person as the Government may by general or special order appoint in that behalf and shall be verified by any person whom the Government may so appoint. 11. It needs to be noted here that a legal entity – a natural person or an artificial person – can sue or be sued in his/its own name in a court of law or a Tribunal. It is not merely a procedural formality but is essentially a matter of substance and considerable significance, That is why there are special provisions in the Constitution and the Code of Civil Procedure as to how the Central Government or the Government of a State may sue or be sued. So also there are special provisions in regard to R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:15:- other juristic persons specifying as to how they can sue or be sued. In giving description of a party it will be useful to remember the distinction between mis description or misnomer of a party and misjoinder or non-joiner of a party suing or being sued. In the case of mis description of a party, the court may at any stage of the suit/proceedings permit correction of the cause title so that party before the Court is correctly described.; however, a mis description of a party will not be fatal to the maintainability of the suit/proceedings. Though Rule 9 of Order 1 of C.P.C. mandates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party . Therefore, care must be taken to ensure that the necessary party is before the Court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order 1, C.P.C. Provides remedy when a suit is filed in the name of wrong plaintiff and empowers the Court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings. 12. The question that needs to be addressed is, whether the Chief Conservator of Forest as the petitioner/appellant in the writ petition/appeal is a mere mis description for the State of Andhra Pradesh or whether it is a case of non-joinder of the State of Andhra Pradesh – a necessary party, in a lis dealing with the property of a State. There can be no dispute that the State is the necessary party and should be impleaded as provided in Article 300 of the Constitution and S. 79 of C.P.C. Viz., in the name of the State/Union of India, as the case may be, lest the suit will be bad for non-joinder of the necessary R.S.A. Nos. 1028 of 2006 and 274 of 2007 -:16:- party. Even post in the hierarchy of the posts in the Government set up, from the lowest to the highest, is not recognised as a juristic person nor can the State be treated as represented when a suit/proceeding is in the name of such offices/posts or the officers holding such posts, therefore, in the absence of the State in the array of parties, the cause will be defeated for non-joinder of a necessary party to the lis, in any court or Tribunal. We make it clear that this principle does not apply to a case where an official of the Government acts as a statutory authority and sues or pursues further proceeding in its name because in that event, it will not be as suit or proceeding for or on behalf of a State/Union of India but by the statutory authority as such”. Merely because the lower appellate court granted leave to the D.F.O. for filing the appeals, the same does not cloth the D.F.O. with the authority to assail the