JUDGMENT
B.P. Katakey, J.
1. This revision petition is directed against the judgment and decree of reversal dated 09.03.2000 passed by the learned District Judge, Lakhimpur, North Lakhimpur in Money Appeal No. 1/99 filed by the Respondent herein, decreeing the Money Suit No. 9/93 filed by it by setting aside the judgment and decree dated 24.06.99 and 29.06.99, respectively, passed by the Civil Judge (Sr. Division), Lakhimpur, North Lakhimpur, dismissing the suit.
2. The Respondent herein filed Money Suit No. 9/93 against the predecessor-in-interest of the present revision petitioner No. 1(i) to 1(iv) as well as revision petitioner Nos. 2 to 4 claiming a decree for Rs. 17,000/- contending, inter alia, that the defendant purchased six years’ National Savings Certificates (NSC) on 03.07.84 which were to be matured on 03.07.90. But, due to inadvertent mistake by the concerned officials of the plaintiff Post Office in putting the date of maturity as 03.07.89 instead of 03.07.90, the defendants have drawn the matured amount one year before the actual date of maturity and have thereby drawn a sum of Rs. 17,000/- in excess from the plaintiff department. It has further been contended that when the plaintiff approached the defendants, they admitted their fault and undertook to refund the money. But, as the money has not been refunded, notice was issued and thereafter filed the suit for realization of the said amount with interest.
3. The defendants contested the suit by filing written statement contending, inter alia, that the suit is bad for non-joinder and mis-joinder of plaintiff/parties and also that the plaintiff has no right to file the suit, apart from contesting the claim of the plaintiff on merit stating that as the NSCs purchased by them were due to be matured on’03.07.89, the entire maturity value was given to them.
4. The trial Court on the basis of pleadings, framed the following issues:
(1) Whether there is a cause of action for the suit?
(2) Whether the suit is bad for non-joinder of the parties?
(3) Whether the date of maturity of the NSC purchased by the defendant No. 1 was fixed as oif-03.07.89 and whether the date of maturity would be after 6 years from the date of purchase of the certificate?
(4) Whether the date of maturity was written wrongly as on 03.07.89 by the dealing Asstt. of Bihpuria in 8-Nos. of NSCs due to mistake?
(5) Whether the suit is barred by law of limitation?
(6) To what relief, the plaintiff is entitled?
5. The respondent/plaintiff in order to prove their case has examined one witness apart from exhibiting a number of documents. The petitioners/defendants have also examined Defendant No. 1 as DW 1. The said defendant during pendency of revision petition, has, however, expired and in his place the petitioner Nos. 1(i) to (iv) have been substituted as his legal heir. The learned trial Court appreciating the evidences on record has dismissed the suit by holding that the maturity value in respect of NSCs exhibited as Exts. 1 to 8 were paid to the defendants on the date of maturity of all these certificates i.e. 03.07.89 and for the lapses, if any, of the officials of the plaintiff Department in wrongly putting the date of maturity as on 03.07.89 in place of 03.07.90, the defendants cannot be made to suffer. The learned trial Court has also dismissed the suit on the ground that the suit is barred by time having not filed within 3 years from the date when the cause of action arose. The issue relating to non-joinder of parties was also decided by the learned trial Court against plaintiff by holding that the Secretary, Posts and Telegraph Department, Govt. of India, who is a necessary party, has not been impleaded as plaintiff to the suit.
6. Being aggrieved, the Respondent herein preferred Money Appeal No. 1/99 in the Court of the District Judge, Lakhimpur, which was allowed vide judgment dated 09.03.2000 by decreeing the Money Suit No. 9/93 filed by it and by setting aside the judgment and decree passed by the learned trial Court dismissing the suit of the plaintiff respondent. The learned Appellate Court has come to the finding that the suit being instituted by the Department of Post Offices, it will be governed by Article 112 of the Limitation Act and the period of limitation being 30 years, the suit was filed within time. The learned Appellate Court has further held that the NSCs having been issued for a period of six years, the defendants could not withdraw the amount under the said NSCs before 03.07.90, the date of purchase being 03.07.84, even though the postal officials have wrongly put the date of maturity of those NSCs as 03.07.89. Regarding the issue relating to non-joinder of parties, the learned Appellate Court, however, neither discussed anything nor gave any finding on the said issue.
7. I have heard Mr. D. Mazumdar, learned Counsel for the petitioners and Mr. D. Choudhury, learned Central Government Counsel appearing on behalf of the Respondents.
8. Mr. Mazumdar, referring to the description of the plaintiff in the plaint as well as Article 300(1) of the Constitution of India, Section 79 of the Code of Civil Procedure Code and also the plea taken in his written statement relating to the right of the plaintiff to file the suit, has submitted that the suit having not been instituted by the Union of India, but having been instituted by a Department of the Government of India, the same is not maintainable. It has further been submitted that even assuming that no plea has been taken in the written statement, a duty is cast on the Court to see that only a properly constituted suit is decreed. In the instant case, in view of the provisions contained in Section 79 CPC, the suit filed by the plaintiff i.e. by “the Department of Post Offices” is not maintainable and, therefore, no decree can be passed on the basis of such suit. Mr. Mazumdar in support of his contention has placed reliance on a decision of the Apex Court in Chief Conservator of Forests, Govt. of Andhra Pradesh v. Collector and Ors. .
9. Per contra, Mr. Choudhury, learned Counsel for the Respondent has submitted that the plea of non-joinder of necessary parties as well as plaintiff’s right to sue having not been specifically pleaded in the written statement, the Court cannot nonsuit the Respondent Plaintiff as such plea of non-joinder of necessary party, in view of provisions contained in Order 1, Rule 13 CPC, has to be taken at the earliest opportunity on or before issues are settled, otherwise, such objection relating to non-joinder or mis-joinder of parties shall be deemed to have been waived. It has farther been contended by Mr. Choudhury that the provision of Order 1, Rule 9 CPC being procedural and technical, a genuine suit should not be allowed to be defeated and such defect of non-joinder of parties should be allowed to be rectified by the Court and the Court even can suo moto direct addition of parties in the event it is found that the necessary parties have not been joined in such suit. Mr. Choudhury, in support of his contention has placed reliance on a single Bench decision of this Court in Motoi Mia and Ors. v. Abdul Hoque and Ors. AIR 1984 Gau 77; Division Bench decision of the Andhra Pradesh High Court in Adclepali Venkata Laxmi v. Ayinampudi Narasimha Rao and Ors. , as well as decision of the Apex Court in Laxmishankar Harishankar Bhatt v. Yashram Vasta ; and Amit Kumar Shaw and Anr. v. Farida Khatoon and Anr. . Placing reliance on the decision of the Apex Court in Secretary, Ministry of Works & Housing, Government of India and Ors. v. Mohinder Singh Jagdev and Ors. . Mr. Choudhury has farther submitted that the suit having been filed by the Postal Department, which is a Government of India Department and the same being a limb of the Government of India, the nomenclature given in the cause title in the suit “Department of Post Offices” in place of “Union of India” is only the wrong description and in fact is the suit filed by the Union of India and the nomenclature given in the cause title being not conclusive, therefore, according to the learned Counsel, the suit filed by the respondent is not hit by Section 79 CPC.
10. The petitioners initially filed a regular second appeal being RSA No. 105/2000 challenging the judgment and decree dated 09.03.2000 and 14.03.2000 respectively, passed by the District Judge, Lakhimpur in Money Appeal. The appeal was admitted for hearing vide order dated 21.07.2000 on the following substantial question of law:
(1) Whether the suit is barred by limitation?
(2) Whether the suit was filed by proper person on behalf of the Union of India?
However, in view of the amendment of Section 102 CPC by the Act 22 of 2002, which came into effect from 01.07.2002, thereby rendering the second appeal not maintainable because of the valuation being less than Rs. 25,000/-, on the prayer made by the learned Counsel for the appellants, this Court vide order dated 17.03.2007 converted the Second Appeal to revision petition, and accordingly the present revision has been registered. The question that has been raised in the present revision petition, is relating to the maintainability of the suit filed by the “Department of Post Offices” in view of the provision contained in Article 300(1) of the Constitution as well as Section 79 of the Code of Civil Procedure.
11. Article 300(1) of the Constitution of India provides that the Government of India may sue or be sued by the name of the Union of India. Section 79 of the Code of Civil Procedure also provides that in a suit by or against the Government, party to be named as plaintiff or defendant, as the case may be, shall be,–(a) in case of a suit by or against the Central Government, the Union of India, and (b) in case of by or against a State Government, the State. Order 27, Rule 1 deals with suits by or against the Government or by its officers in their official capacity. Rule 1 of Order 27 CPC provides that in any suit by or against the government, plaint or written statement shall be signed by such person as the government by general or special order appoint in that behalf and shall be verified by any person, whom the government may so appoint.
12. The Apex Court in Chief Conservator of Forest (supra) has observed that the requirement of provision contained in Section 79 CPC as well as Order 27, Rule 1 CPC is not merely a procedural formality, but is essentially a matter of substance and of considerable significance whereby the special provision as to how the Central Government or the State Government may sue or be sued has been indicated. It has further been observed that in giving description of a party, the distinction between the mis-description or misnomer of party and mis-joinder and nonjoinder of a party suing or being sued has to be remembered and in case of mis-description of party, the Court at any stage of the suit permit correction the cause title so that the party before the Court is correctly described, and, such mis-description will not be fatal to the maintainability of the proceeding. However, in case of non-joinder of parties, the suit or proceeding will fail. The Apex Court has further observed that Order 1 Rule 10 provides remedy when a suit is filed in the name of the 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. Observing thus, the Apex Court proceeded to decide the question whether the Chief Conservator of Forests 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, which is a necessary party. The Apex Court in that case has held that the Chief Conservator of Forests as petitioner can neither be treated as State of Andhra Pradesh nor can it be a mis-description of the State of Andhra Pradesh and the State of Andhra Pradesh being not a party, the said proceeding suffers for non-joinder of necessary party and, therefore, the writ petition itself is not maintainable, consequently the appeal.
13. In the present case, the plaintiff has been described as follows:
Department of Post Office, Government of India Department, carrying on service of Post Office, Headquarter of the Department being at New Delhi, represented by its constituted attorney and Superintendent of Post Offices, Dibrugarh Division, Dibrugarh.
The question, which requires consideration of this Court, in view of the judgment of the Apex Court in Chief Conservator of Forests (supra) is, whether “the Department of Post Office, a Government of India Department” in the plaint is merely a misdescription of the Union of India or whether it is a case of nonjoinder of the Union of India, which is a necessary party.
14. The petitioners-defendants in the written statement apart from the pleas relating to the merit of the case, have taken the following pleas:
(2) That the suit is bad for non-joinder and mis-joinder of plaintiff/parties.
(3) That the plaintiff has no right to file the suit.
15. Order 1, Rule 13 CPC provides that all objection on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases, where issues are settled, on or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken, shall be deemed to have been waived. The plea, as discussed above, in the present case relating to non-joinder of plaintiff/parties, has been taken by the petitioners in the written statement, specifically, apart from pleading that the plaintiff has no right to sue. The plaintiff in spite of such specific plea did not take any steps for impleading necessary party, namely, Union of India. The plain-tiff also did not lead any evidence to substantiate that the suit is not bad for non-joinder of necessary party and “the Department of Post Offices” has the right to sue. The contention of the learned Counsel for the respondent relating to the vagueness of pleading, therefore, cannot be accepted and hence rejected. The decision of the Apex Court in Laxmi Shankar (supra), in view of the aforesaid discussion, is not applicable in the present case.
16. There is no dispute to the proposition of law that the Court under Order 1, Rule 10 read with Order 6, Rule 17 CPC has the power to add necessary party in a suit, provided proper application, for that purpose is filed. In Motoi Mia (supra), a Single Bench of this Court has observed that no decision should be rendered in any suit in the absence of necessary party and the Court has power to add such necessary part in a suit. In that case, an application was filed by the plaintiff, in the appellate stage, which was allowed.
17. hi Addepalli Venkata Laxmi (supra), a Division Bench of the Andhra Pradesh High Court, keeping in view the provisions of Order 1, Rule 13 CPC, has held that the suit of the plaintiff cannot be dismissed on the basis of the objection relating to non-joinder of necessary party, raised for the first time at the appellate stage without taking such plea at the trial stage as defence. But in the present case, such plea was taken in the earliest opportunity i.e. in the written statement.
18. The Apex Court in Amit Kumar Shaw (supra) considering the provision of Order 1 Rule 10 CPC has observed that the object of the said provision is to discourage contests on technical pleas and to save honest and bona fide claimants from being non-suited. The Court can at any stage of the proceeding strike out or add parties, hi the said case, the applications were filed by the appellants therein for substitution of their names as contesting respondents in place of two others, which applications were rejected by the High Court. The Apex Court in that case has not observed that where in a suit plea of non joinder of necessary party is taken, the Court is obliged to add such necessary party, even without any prayer of any party. The contention of the respondent that the Court, in the event of such plea of non-joinder of necessary party, is to add party even without any prayer from party, cannot be accepted.
19. The Court, even in the absence of any plea, while granting decree, is required to see that the suit is properly constituted. In a suit by the Department of Posts as plaintiff, the Court is to satisfy before passing the decree whether the provision of Section 79 CPC has been complied with, even if such plea is not taken in the written statement.
20. The Apex Court in Secretary, Ministry of Works and Housing, Government of India (supra) has observed that the Union of India can lay the suit and be sued under Article 300 of the Constitution in relation to its affairs and under Section 79 read with Order 27, Rule 1 CPC, in a suit, by or against Central Government, the authority to be named as plaintiff or defendant, as the case maybe, shall be the Union of India. However, in the said case, as the appeal was filed by the Secretary of the Department transacting its function on behalf of the Government as per the business rules framed under Article 77 of the Constitution, the same was treated to have been filed by the Union of India by holding that the nomenclature given in the cause title is not conclusive.
21. In the present case in hand, the suit was not filed by the Secretary of the Department of Post, but was filed by the “Department of Post Offices”, represented by the constituted attorney and Superintendent of Post Office. Neither the Union of India nor the Secretary to the Government of India, Postal Department being party to the suit. i.e. plaintiff, the suit is hit by Section 79 read with Article 300 of the Constitution of India, which requires filing of the suit by the Union of India. The description of plaintiff is, therefore, not misdescription of Union of India. Hence, the present suit in question is not maintainable. The ratio laid down in Secretary, Ministry of Works and Housing (supra), in view of the aforesaid factual position, is not applicable in the present case.
22. In view of the above, the revision petition is allowed. The judgment and decree passed by the learned Appellate Court are set aside. Suit filed by the Respondent stands dismissed. No cost.
23. It appears from the record that this Court vide order dated 21.07.2000, has stayed the execution of decree passed by the learned Court below, subject to payment of Rs. 12,000/- by the petitioners.
24. In the event, such amount has been paid and withdrawn by the respondent, the same shall be refunded to the petitioners.