Suit dismissed for defect in parties without providing opportunities to amend the paint. Civil suit filled for declaration of right and title in the property. That property was self acquired by my heart grandfather. My great grandfather was an engineer in the public works department. He purchased land and built a house. My grandfather was the only son. He had an illicit relationship with a woman but this fact was never disclosed. He was also a government servant and had good earnings. He built a house for his mistress. That lady never was in our contact and also never appeared in our society as a friend or known of my grandfather. Grandfather died in 1972. There is an encroachment at a small portion of our property, so we filled a declaratory suit and made encroachers as defendants.
Defendants said that they are tenants of Mrs xxx from 1981. We came to know from their written statement that my grandfather's mistress died in 1999. They have no evidence that the said lady let it out of that property. Also there is no evidence that that lady was the owner of that portion of property. But the civil judge said that our main grievance is against that lady. We refused to add her son as a party with the consequence my suit is dismissed for defect in parties.
Asked from Bihar
Prima facie it seems that the order of dismissal of suit is wrong and passed against the settled principle regarding the framing of parties. Plaintiff is a dominus litis, he had the right to sue, and the court cannot interfere unless it found that necessary parties have not been brought on record.
It appears from the fact that the mistress of your grandfather was living separately. Their relationship was in hush-hush, and it had never been in public. You came to know about their illicit relationship only after the filling of a civil suit. It is also evident that neither the intruders nor the son of that lady has any legal proof of ownership on the property.
In absence of legal document his ownership has not been prima facie proved. Since the intruders have also failed to produce any legal documents of tenancy, it cannot be said that that lady was the owner and the intruders are her tenants.
In the absence of a valid document a person cannot be added as a defendant merely on the basis of the written statement of defendants. The plaintiff is the dominus litis, he has exclusive right to sue. The court can interfere only when it finds that the necessary part is not brought on record.
The son of your grandfather's mistress is not a necessary party because he has no evidence to prima facie establish his right in that property. However he may be a proper party, but a suit cannot be dismissed on the ground of not joining the proper party in the suit. Mis- joinder of party cannot form the basis for dismissal of suit.
You should file an appeal against the order of dismissal. Suit was wrongly dismissed for defects in parties. This order has been passed in gross violation of the provision enumerated in Order 1 Rule 9 and 10 of the code of civil procedure. The appellate court shall set aside this impugned order.
