Full Judgment
Asutosh Mookerjee, Acting C.J.
1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Beachcroft in a suit for declaration of a right of way as a village road over the lands mentioned in the plaint and for removal of an obstruction thereon. The plaintiffs sued in a representative capacity, and in the Court of first instance an objection was taken that one of the persons interested in the servient tenement, by name Fanindra Narayan Choudhury, had not been added as a party to the suit. The Trial Court overruled this objection on the ground that it had not been taken at the earliest possible stage of the suit, although there does not appear to have been any dispute that the person named was really one of the joint owners of the alleged servient tenement. The suit was then tried on the merits and a declaration was made in favour of the plaintiffs. On appeal, amongst other grounds, the objection as to defect of parties was raised, but it was overruled, and the decree of the Court of first instance was affirmed. On appeal to this Court, Mr. Justice Beach croft has affirmed that decree. With regard to this question Mr. Justice Beach croft holds that as the objection has been taken too late, the Court is not bound to entertain it. The position, consequently, is that the Trial Court has made a declaration with full knowledge that one of the persons interested in the servient tenement was not a party to the litigation and has directed the removal of an obstruction from land in which such parson is interested. We are of opinion that this was not the proper course to follow.
2. No doubt, Order I, Rule 9, of the Civil Procedure Code provides that 'No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.' But notwithstanding this provision it is plain that the Court will not entertain a suit in which no effective decree can be made in the absence of an interested party: For instance, in a suit for partition of joint property, if it is established that one of the owners has not been joined as a party, the Court will not proceed to make a decree; the decree will not be operative, as it mast deal with the share of the absent parson interested, who cannot be bound thereby. Similarly in a case like the present, where the decree is to be made for declaration of a right of way as a village road over the disputed land and for removal of an obstruction thereon, if it is discovered that a person interested in the servient tenement has not been made a party to the suit, the Court will not proceed to make a decree. The decree, if made, must be infructuous; if a suit is instituted by the absent parson for an injunction to restrain the successful plaintiff from executing the decree, there will be no possible answer to the prayer. We are consequently of opinion that in the present case, when the Court was apprised that the person named was interested in the servient tenement, steps should have been taken by the plaintiffs to bring him before the Court.
3. The result is that this appeal is allowed, and the suit dismissed with costs in all the Courts.
Fletcher, J.
4. I agree.