Page No.# 1/11 GAHC040000792024 2025:GAU-AP:1161 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) CRP NO. 02(AP)/2024 1. Shri Tagam Jempen, S/o Late Tapor Jenpen, permanent resident of village Nemasibo, P.O.- Monigong, P.S.- Tato, District Shi-Yomi, Arunachal Pradesh, presently residing at Pakam-II, P.O./P.S.- Aalo, West Siang District, Arunachal Pradesh. 2. Shri Tashi Pujen, S/o Late Tabin Pujen, resident of Monigong Circle, Shi-Yomi District, Arunachal Pradesh … PETITIONERS -VERSUS- Shri Tasing Jenpen @ Taking Jenpen, aged 67 years, S/o Shri Tatam Jempen, Village- Chengo, P.O. & P.S.- Monigong, Shi-Yomi District, Arunachal Pradesh. …RESPONDENT Advocate for the petitioners : Mr. S. K. Deori Advocate for the respondent : Mr. P. Taffo Page No.# 2/11 :::BEFORE::: HON’BLE MR. JUSTICE KARDAK ETE JUDGMENT 22.10.2025 Heard Mr. S. K. Deori, learned counsel for the petitioners. Also heard Mr. P. Taffo, learned counsel for the respondent. 2. This civil revision petition is preferred against the order dated 08.01.2024, passed by the learned Civil Judge (Sr.) Division, West Siang District, Aalo, whereby the objection raised by the petitioners in Money Suit No. 37/2023 with regard to non-joinder of necessary parties and barred by res sub judice has been rejected. 3. The case in nutshell is that for a project for construction of road from Tadage to Henkar of Shi-Yomi District, falls under the community land of Jendu and Jempen, sub-clan of Saji clan of Shi-Yomi District, Arunachal Pradesh, a dispute with regard to the title against the land between both clans arose and accordingly a title suit was filed, being Title Suit No. 06/2019. During the pendency of the said title suit, the respondent, who belongs to Jempen clan, had supported Jendu clan to maintain brotherhood relationship among both the clans. Thereafter, a dispute was amicably settled before the Lok Adalat wherein it was decided that the compensation amount shall be shared on the basis of 60:40 ratio between both the clans. After amicable settlement, on 19.12.2020 an agreement was executed between respondent and the petitioner No. 1 wherein in clause 1 of the agreement it was agreed that Saji Society (Jendo/Jendu and Jempen) shall pay Rs. 20,00,000/- (Rupees twenty lakhs) Page No.# 3/11 only to the respondent from the compensation amount of the land for construction of Tadadege to Henkar Highway Road. It was agreed between the parties that Rs. 20,00,000/- (Rupees twenty lakhs) only would be apportioned @ Rs. 10,00,000/- (Rupees ten lakhs) only each between both Jendu and Jempen clan. Pursuant thereto, petitioner No. 2 had paid Rs. 4,00,000/- (Rupees four lakhs) only to the respondent, however refuse to pay remaining Rs. 6,00,000/- (Rupees six lakhs) only contending that the respondent is not maintaining cordial relation with the petitioner No. 1, which was one of the conditions of the agreement. The petitioner No. 1, i.e. Jempen clan, has not paid any money from his side and thereby both the petitioners have violated the terms of the agreement dated 19.12.2020. 4. The respondent claims that as per the agreement, he has to receive another Rs. 16,00,000/-only, but instead of paying the amount as agreed, the Jendu clan headed by petitioner No. 2 had adopted a resolution on 02.06.2023 that remaining amount of Rs. 6,00,000/- (Rupees six lakhs) only shall not be paid as the respondent is not maintaining cordial relationship with the petitioner No. 1. Accordingly, present money suit, being Money Suit No. 37/2023, has been instituted. 5. The petitioners, as defendants, filed a written statement and counter- claims against the respondent by pleading that the compensation amount of community land was received for the members of the Saji clan and the respondent is not the beneficiary of the said compensation. The respondent, who supported Jendu clan in the earlier title suit against the Jempen clan has failed to maintain cordial relationship with the Saji clan for which the Saji Society had to adopt resolution dated 02.06.2023 denying any further payment Page No.# 4/11 to the respondent, rather sought refund of the payment of Rs. 4,00,000/- (Rupees four lakhs) only made to the respondent. It is pleaded that the agreement dated 19.12.2020 was executed between the respondent and the Saji Society, who is a separate entity, as such both the petitioners are not individually liable to make any payment of suit money and therefore, the petitioners have been wrongly made parties. It is further pleaded that the agreement dated 19.12.2020, executed between the respondent and the Saji Society are unregistered agreement and as such lack legal validity and respondent has no enforceable right in terms of the said agreement. 6. The petitioners pleaded that on the request of the members of the Saji Society, who promised to reimburse the amount to the petitioner No. 2 from the society fund, had paid Rs. 4,00,000/- (Rupees four lakhs) only to the respondent and since the respondent had failed to keep cordial relationship with the Saji Society, the resolution dated 02.06.2023, denying any further payment, has been adopted and sought refund of the payment of Rs. 4,00,000/- (Rupees four lakhs) only from the respondent. 7. By filing replication against the written statement, the respondent has pleaded that the present suit is filed basing on the default in performance of agreement dated 19.12.2020 in which the petitioners had agreed to pay Rs. 20,00,000/- to the respondent jointly and severally. It is pleaded that the cause of action in the suit is different from the Money Suit No. 38/2020, though the defendants are same. Both the petitioners belong to Jempen and Jendu clan respectively, which are the sub-clan of Saji Clan and they are commonly named as Saji clan. The respondent had mediated the matter for amicable settlement for which the Saji clan has commonly decided to pay Rs. 20,00,000/- (Rupees Page No.# 5/11 twenty lakhs) only to the respondent and the petitioners representing the society, an agreement was executed between the respondent and the petitioners. Therefore, the Saji clan are not separate entity as pleaded by the petitioners and since the petitioners had entered into an agreement with the respondent individually, the Saji clan cannot be made as a party. 8. Following 3 (three) issues were framed on 04.10.2023, with regard to maintainability of the suit by the learned Trial Court: (i) Whether the suit is bad for non-joinder of necessary parties as per Order-I, Rule 10 of CPC? (ii) Whether the suit is barred by res-subjudice as per Section 10 of CPC? (iii) Whether the suit is liable to be rejected for no cause of action as per Order-VII, Rule-11 of the CPC? 9. After due consideration of all the issues and the submissions of learned counsel for the parties, the learned Trial Court vide impugned order dated 08.01.2024 has decided all 3 (three) issues against the petitioners and in favour of the respondent. Hence, this civil revision petition. 10. Mr. S. K. Deori, learned counsel for the petitioners, submits that the impugned order is not tenable in law inasmuch as the finding recorded by the learned Trial Court that for non-joinder of necessary party the suit cannot be defeated is contrary to the provisions of the proviso of Order 1 Rule 9 of the Code of Civil Procedure, 1908 which specifically provides that for non-joinder of party suit cannot be defeated will not have any application in case of non- joinder of necessary party and in the instant suit, the Saji society is a necessary party and in the absence of necessary party, the suit is hit by the provisions of Page No.# 6/11 the proviso to Order 1 Rule 9 CPC and therefore not maintainable. As such, he submits that finding of the preliminary issue of non-joinder of necessary party in favour of the respondent is palpably erroneous. He submits that the finding recorded by the learned Trial Court that the petitioners can be impliedly held to be representative of Saji society is not only presumptive but also without any legal and factual basis inasmuch as there is no material to presume that the petitioners can be held to be obligated to perform the obligations undertaken by the Saji society and therefore, the suit filed without impleading the Saji society cannot be maintained for non-joinder of necessary party. 11. Mr. Deori, learned counsel, submits that the learned Trial Court has committed grave error in holding that the petitioners promised to pay Rs. 20,00,000/- (Rupees twenty lakhs) only to the respondent inasmuch as the original agreement undertaking the said obligation, though conditional, was executed by the Saji society and the performance of the said obligation cannot be enforced by the respondent only against the petitioners and as such, it is not correct to hold that there is an actionable claim against the petitioners. The decision of the preliminary issue framed was for rejection of plaint under Order VII Rule 11 CPC for want of cause of action only against the petitioners and finding is therefore not sustainable in law. 12. Mr. Deori, learned counsel, further submits that a similar suit claiming same amount has been instituted, being Money Suit No. 38/2020, which has been withdrawn on amicable settlement between the parties wherein the present respondent was plaintiff No. 9 in the said suit. Therefore, the present Money Suit No. 37/2023, on the same cause of action, is not maintainable and as such, the impugned order dated 08.01.2024, passed by the learned Civil Page No.# 7/11 Judge (Sr.) Division, West Siang District, Aalo, deciding the preliminary issues in favour of the respondent and against the petitioners, is liable to be set aside and quashed. 13. Mr. P. Taffo, learned counsel for the respondent, submits that the respondent instituted the present suit for enforcement of the terms of the agreement dated 19.12.2020, which was executed between the respondent and the petitioners. The Saji society is not a registered society and as such the society cannot be made as party to the suit which has no legal entity. The petitioners entered into an agreement with the respondent representing the unregistered society and therefore, he is liable to pay the remaining amount. He submits that the petitioners themselves have admitted in the written statement that the cause of action arose on 02.06.2023 and therefore the cause of action was clearly evident from the pleadings of the parties in the suit. 14. He submits that the cause of action of the present money suit is different from the cause of action of Money Suit No. 38/2023. As per the agreement, the petitioners had agreed that Rs. 20,00,000/- (Rupees twenty lakhs) only would be apportioned between Jendu and Jempen clan, i.e. Rs. 10,00,000/- (Rupees ten lakhs) only each. Pursuant thereto, the respondent No. 2 paid a sum of Rs. 4,00,000/- (Rupees four lakhs) only and now instead of paying the remaining amount of Rs. 16,00,000/- (Rupees sixteen lakhs) only to the respondent, the petitioners are making excuse to escape from the liability and adopted a resolution on 02.06.2023 that remaining amount of Rs. 16,00,000/- (Rupees sixteen lakhs) only shall not be paid to the respondent on the mere pretext of not maintaining a cordial relation, to which the respondent denied. He submits that the respondent has entered into an agreement with the petitioners Page No.# 8/11 individually and hence, Saji society is not a necessary party. Therefore, the question of mis-joinder or non-joinder of parties does not arise as the Saji society is unregistered society and as the unregistered society is not a legal entity. 15. He further submits that the compensation received from the government was for the community and it was for the members of the Saji society in which Jendu and Jempen clans are included. The respondent is a member of Jempen clan and therefore, he is a beneficiary of the said compensation. The respondent acted as a mediator during the title/ownership dispute between the Jenpen and Jendu clan by bearing the brunt of both the parties and hence, the Saji society represented by the petitioners had decided to pay Rs. 20,00,000/- (Rupees twenty lakhs) only to the respondent vide an agreement dated 19.12.2020. Therefore, the suit has been filed praying for a decree for recovery of Rs. 16,00,000/- (Rupees sixteen lakhs) only against the petitioners which they are legally bound to pay in terms of the agreement. He, therefore, submits that the learned Trial Court has rightly decided the 3 (three) preliminary issues on the objection of the petitioners in accordance with the law and hence, no interference is called for in the present civil revision petition. 16. Due consideration has been extended to the submissions advanced by the learned counsel for the parties and also perused the materials available on record. 17. An agreement dated 19.12.2020 was executed between the petitioners and the respondent to the effect that an amount of Rs. 20, 00, 000/- was to be paid by Saji clan/society from the compensation amounts of the Tadadege to Henkar Highway-road. Accordingly, petitioner No, 2 had paid Rs. 4,00,000/- Page No.# 9/11 (four lakh) only for and on behalf of Jendu clan, who is one of the sub clans of Saji clan. The petitioner No.1 was representing the Saji society as an authorized representative. Since Saji society is not a registered society having no legal entity and as such cannot be impleaded as party to the suit. The petitioners have acted on behalf of Saji society to pay an amount of Rs. 20,00,000/- to the respondent. Therefore, it appears that Saji society is duly represented by the petitioners. 18. On reading of the plaint, it reflects that the respondent had pleaded that the amount was to be apportioned between Jendu and Jempen clan @ Rs. 10,00,000/- each and the petitioners had paid Rs. 4,00,000/- in consequence of agreement dated 19.12.2020 to the respondent. The remaining amount is denied to be paid to the respondent on the pretext that respondent is not maintaining cordial relation with the petitioners. It transpires that there appears to be implied consent that Saji Society through petitioners had agreed to pay an amount of Rs. 20,00,000/- to the respondent. Thus, present suit cannot be construed to be bad for non-joinder of necessary party. It is settled position that for application of the Order 7 Rule 11 (a) and (d) CPC the averments of plaint are germane and the pleas taken in the written statement are wholly irrelevant. For the purpose of examination of plaint under Order 7 Rule 11 CPC, the averments of plaint have to be presumed as true and none can come out of what has been set up in the plaint. While considering a plaint under Order 7 Rule 11 CPC, for rejection, it must be crystal clear that reading the plaint as a whole does not disclose a cause of action or from a statement contained in the plaint it is barred by any law. This must be obvious on the face of the plaint unequivocally. Rejection of plaint cannot be done on surmises and conjectures. If there is a room for doubt, then it must be resolved in favour of sustaining the Page No.# 10/11 plaint rather than rejecting it. 19. Pleadings reveal that the respondent was agreed to be paid Rs. 20,00,000/- for his role to mediate the disputes between Jendu and Jempen clan of Saji Society. Since both the petitioners having failed to pay the promised amount, there appears an actionable claim against the petitioners. 20. Perusal of the records and pleadings establish that the cause of action of the present money suit is different from the cause of action of Money Suit No. 38/2023 as the cause of action in the other suit being Money Suit No. 38/2023 pertains to the payment of compensation of the land and its apportionment amongst the members of the clans who are entitled for the same. Thus, question of res-subjudice does not arise. 21. It is noted that as per the agreement, the petitioners had agreed that Rs. 20,00,000/- (Rupees twenty lakhs) only would be apportioned between Jendu and Jempen clan, i.e. Rs. 10,00,000/- (Rupees ten lakhs) only each. Pursuant thereto, the respondent No. 2 paid a sum of Rs. 4,00,000/- (Rupees four lakhs) only and now a resolution on 02.06.2023 has been adopted that remaining amount of Rs. 16,00,000/- (Rupees sixteen lakhs) only shall not be paid to the respondent on the ground of not maintaining a cordial relation, to which the respondent denied, which is in my view would be a matter of trial. 22. In the case of Ambadas Khanduji Shinde & Ors. Vs. Ashok Sadashiv Mamurkar & Ors., reported in (2017) 14 SCC 132, Hon’ble Supreme court has held that it is settled law that revisional jurisdiction of the High Court is restricted to cases of illegal or irregular exercise of jurisdiction by the subordinate Courts. Under Section 115 of the Civil Procedure Code, it is not open for the High Court to correct errors of facts or law unless they go to root Page No.# 11/11 of the issue of jurisdiction. 23. In Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited & Ors., reported in (2010) 7 SCC 417, the Hon’ble Supreme Court has held that a ‘necessary party’ is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a ‘necessary party’ is not impleaded, the suit itself is liable to be dismissed. A ‘proper party’ is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance. 24. In view of what has been discussed herein above in the facts of the present case, I am of the considered view that the learned Court below has passed the reasoned order well within the jurisdiction conferred upon it while holding the preliminary issues in favour of the respondent and against the petitioners, The petitioners have failed to make out a case for interference to the impugned order dated 18.01.2024 in the revisional jurisdiction. Consequently, this civil revision petition lacks merit and same is dismissed, accordingly. JUDGE Comparing Assistant