Dimmiti Pullayya and Others vs Abdebolu Nagabhushanam and Others

Chandra Reddy, C.J.—The question to be answered by us is whether leave to appeal could be granted to a person who is not eo nomine a party to a proceeding but who will be affected by the decision in the proceeding brought in a representative capacity under Order I Rule 8, C. P. C.

The reference was made by a Division Bench of this Court as it was thought that there was a conflict of judicial opinion on this problem.

The facts material for a consideration of the question arising in this petition may be briefly stated. A block of land was carved out of the village of Telaprolu and granted in inam by the Zamindar of Nuzvid in fasli 1157. The area so carved out was called Venkatapuram kandrika. The predecessor-in-interest of the grantees was given the title deed by the Inam commissioner who fixed the quit rent at Rs. 2-8-0 per year. The grantees claimed Venkatapuram kandrika as a minor inam while the tenants of the village contested that position and asserted that it was an estate within the purview of Sec. 2(d) of the Madras Estates Land Act. The Settlement Officer held that Venkatapuram is not an estate u/s 2(d) while the Special Officer reversed the finding. To quash this order the land-holder invoked the jurisdiction of this court under Article 226 of the Constitution but it was dismissed by this Court in the view that the appropriate remedy lay by way of suit.

Thus, O. S. No. 29 of 1953 on the file of the Subordinate Judge''s Court, Vijayavada came to be filed by respondents 1 to 4. To this, the State of Andhra alone was impleaded as a party. When the Government took an objection to the non-joinder of the ryots of the village of Venkatapuram kandrika, defendants 2 to 5 were impleaded as parties after obtaining the necessary permission under Order 1, Rule 8, C. P. C. Some other villagers also got themselves impleaded as defendants 6 to 9 alleging that defendants 2 to 5 were the supporters of the plaintiffs. At the trial, no Oral evidence was let in and no documents for the defendants were marked.

The trial court, on the material before it, gave a decision in favour of the plaintiffs holding that Venkatapuram kandrika was not an estate. No appeal was preferred by any of the defendants who sought to represent the tenants. It is in these circumstances that the other ryots of the village represented by the petitioners seek to file an appeal with the leave of this court after getting a delay of 44 days excused.

The allegations in the affidavit filed in support of the petition are that defendants 1 to 9 had not taken any interest in the matter, that they neglected to produce even documentary evidence and that in collusion with the plaintiffs they have not preferred any appeal.

This petition is resisted on behalf of the plaintiffs-respondents. It is maintained by Sri Ramanujachariar, learned counsel for the respondents, that the petitioners have no locus standi to present the appeal as they were not parties to the suit and that this court has no jurisdiction to grant leave to file an appeal to a person, who was not actually party to the proceeding. The problem to be solved, therefore is whether in a situation like this the appellate court has jurisdiction to permit a person who is not eo nomine a party to It proceeding started under Order 1, R. 8, C. P. C but at the same time who will be injuriously affected by the decision given in the proceedings, to file an appeal.

The statutory provisions that govern the presentation of appeals are Secs. 96, 146 and O. 41, R. 1, C. P. C. Section 96 is in these words:

Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such court.

An appeal may lie from an original decree passed ex parte.

No appeal shall lie from a decree passed by the Court with the consent of parties.

Order 41, Rule 1 says:

Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate court dispenses therewith) of the judgment on winch it is founded.

....

Section 146 is in these words:

Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken Or the application may be made by or against any person claiming under him.

Section 146, C. P. C. empowers a legal representative of a person entitled to prefer an appeal to exercise the same right and the proceeding contemplated by Sec. 96 includes an appeal.

It is manifest that none of these provisions expressly bars the filing of an appeal by an aggrieved person who was not actually a party to the proceeding. However, Mulla in his commentary on the Civil Procedure Code, under the heading "who may appeal" remarks thus :

An appeal under this section may be preferred by. any of the following persons :

Any person to the suit adversely affected by the decree, or, if such party is dead, by his legal representative.

Any transferee of the interest of such party, who so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit.

An auction-purchaser may appeal from an order in execution setting aside the sale on the ground of fraud.

No person unless he is a party to the suit, is entitled to appeal under this section)''''.

The last statement seems to be supported by some of the decided cases and also the practice prevailing in several High Courts. This position also emerges from the decision of the Madras High Court in The Indian Bank and The Official Receiver of Madura Vs. Seth Bansiram Jashamal Firm and Another, which was accepted as correct by a Bench of the Bombay High Court, in The Province of Bombay Vs. Western India Automobile Association, to that extent.

The position is stated in the Annual Practice (1961 Edition) Vol. I at page 1658 thus:

Any party to the action may appeal, for example, one alone of several plaintiffs and also any person served with notice of the judgment or order under Order 16, Rule 40. But in addition, in accordance with old Chancery practice, any person may appeal by leave (obtained on ex parte motion to the court of appeal) if he could by possibility have been made a party to the action by service.

To a similar effect is the passage contained in Halsbury''s Laws of England (III Edition) Vol. 30 page 461, which is as under:

A person who is not a party and who has not been served with such notice, cannot appeal without leave, but a person who might properly have been a party, may obtain leave to appeal''''.

In similar terms is the rule stated in Seton on Judgments and Orders (7th Edition) Vol. 1 at page 824 it runs thus :

Where the appellant is not a party to the record he can only appeal by leave to be obtained on motion ex parte from the court of appeal... Leave to appeal will not be given to a person not a party unless his interest is such that he might have been made a party.

Therefore, it may now be taken as settled that a person not a party to a proceeding cannot, as a matter of right, present an appeal against the decree.

But, does it preclude the appellate court from according leave to file an appeal to a person against the decree or order of the trial court, if he is affected by the decision though he was not actually impleaded as a party? The respondents seek to answer the question in the affirmative. The foundation for the argument pressed upon as by the learned counsel for the respondents-plaintiffs is based on ( The Indian Bank and The Official Receiver of Madura Vs. Seth Bansiram Jashamal Firm and Another, ) Seth Nandaramdas Atmaram by Agent Hemrajmul Vs. Zulika Bibi and Others, and some rulings of the Allahabad and Lahore High Courts.

We will now consider the cases called in aid by Sri Ramanujachari, learned counsel for the respondents. Seth Nandaramdas Atmaram by Agent Hemrajmul Vs. Zulika Bibi and Others, , does not throw any light on the problem to be solved by us. There, the learned Judges were concerned with the question whether the amendment of the plaint by which a suit was converted into one of representative action under Order I, Rule 8, C. P. C. would involve the addition of fresh parties so as to attract the provisions of Sec. 22 of the Limitation Act. They held that the conversion of a suit into one under Order I, Rule 8, C. P. C. did not result in the addition of fresh parties so as to attract Section 22 of the Limitation Act. The opinion expressed by them was that although the capacity of the plaintiff had changed so as to represent a body of persons, the persons were not actual parties to the suit. It is thus seen that the learned Judges were not called upon to decide whether leave to appeal could be granted to persons like the petitioners nor did they purport to deal with such a question.

In ( The Indian Bank and The Official Receiver of Madura Vs. Seth Bansiram Jashamal Firm and Another, the Official Receiver representing the general body of creditors defended a suit brought by two plaintiffs for a declaration of their title to two items of property. The decision by the trial court went against the official receiver, but he did not choose to take the matter in appeal. In that situation, the Indian Bank, one of the creditors, filed an appeal against the decree of the trial court with an application for permission to file the appeal. The learned Judges expressed opinion that under the CPC no person who was not a party to a suit could prefer an appeal under S. 96 C. P. C. since the right of appeal is a special creature of statute and it could be exercised only by those in whom the power was vested expressly or impliedly by the statute. A perusal of the decision would indicate that the learned Judges there were mainly considering the question whether a person who was not on record as an actual party could present an appeal against the judgment and decree of the trial court. After referring to the English decisions bearing on the controversy, the learned Judges observed:

These decisions do not help the appellant as they do not directly bear on the question and relate only to powers of the trial court to grant leave to appeal. Further, the powers of the trial court in those cases are rested on the practice prevailing in the English courts.

They next considered whether the case before them was one in which leave could be granted and came to the conclusion that a creditor on general grounds could not ask the appellate court to grant him leave to appeal and that even if such permission was asked they were not satisfied that that was a proper case in which permission should be given.

It is seen that the whole discussion turned on the right of a person not a party to a suit to file an appeal against the decree or order. In that case, the creditor could not have come on record to agitate the matter either on his own behalf or on behalf of the creditors, since the official Receiver represents the estate. It was pointed out by the learned Judges that the appellant there could not invoke section 75 of the Provincial Insolvency Act, as it was not under, one under the Insolvency Act. So, the observations of the learned Judges should be understood in the context of the controversy before them. Unlike that case here the parties concerned are deemed to be parties, as the suit was instituted in a representative capacity. If, however, the dictum laid down in that case is susceptible of the construction that it was not competent for an appellate court to give leave to a person to be adversely affected by the decision of the Court by reason of the applicability of Sec. 11 Explanation VI. C. P. C. we must express our respectful dissent from such a doctrine.

Jan Mahomed v. Syed Nuruddin, ILR 32 Bom 155, does not assist the respondents. That was a case of a relator filing an appeal against the judgment dismissing a suit brought by the Advocate-General at the instance of relators under the provisions of Sec. 539. C. P. C. (XIV of 1882) corresponding to Sec. 92 of the present Code. The relators sought to file an appeal and a preliminary objection was raised that the appeal could not be entertained. The objection was upheld as the relators were not parties to the suit and as relators they had no right to step in when the Advocate General who was the plaintiff had not thought fit to file an appeal against the dismissal of the suit. The principle enunciated there can have no analogy here. For one thing, the relators by themselves could not have brought a suit nor could they have come on record as the plaintiff in the action laid by the Advocate-General, they were not concerned with the question of leave to file an appeal.

We shall now consider the rulings of the other High Courts Mihin Lal v. Imitiaz Ali, ILR 18 All 332 relied on by Sri. Ramanujachari does not give him any aid. There, the plaintiffs brought a suit for possession and damages impleading certain persons as defendants and obtained a decree. The defendants carried the matter in appeal and the appellate court considering that one Mihin Lal should be a party to the appeal made him a party to the appeal as defendant-appellants though he was not a party to the suit. The appellate court, thereafter, gave judgment finding all the issues against the defendants-appellants including Mihin Lal. However, the appellate court did not pass decree against Mihin Lal. Yet, Mihin Law sought to file an appeal against the judgment. Sir John Edge, C. J. and Blennerhessett, J. dismissed the appeal holding that there was nothing for him to appeal since there was no decree against him in spite of his having been made a party by the appellate Court as an appellant.

In such a situation, the learned Judges observed that a stranger to the suit in the court of first instance ought not to be added as a party in the appeal unless he was brought on record as a party to the suit or there was the devolution of title and that if the appellate Court thought it necessary to have as a party before it a person not appearing in a representative capacity and who was not a party to the suit in the court of first instance, the appellate court should remand the case to the court of first instance directing that court to bring on record that particular person as a defendant or as plaintiff if he consented, give him time to file his statement and an opportunity to produce his evidence and try the issues raised there between him and the opposite side.

The principle adumbrated there was that a stranger to a suit should not be impleaded as a party with a view to give a decision against him without his having an opportunity to state his case in the trial court. It will surely cause him prejudice if without giving him an opportunity to defend in the trial court he should be brought on record as a party in the appellate court. But that is not the situation obtaining in a case like this where a person affected wants to have the decree or order vacated.

Nor does AIR 1931 610 (Lahore) hold any analogy here. All that was decided there was that the power to take proceedings under Order 1 Rule 8, C. P. C. could be exercised by the appellate court in appeal and is not confined to original proceedings and that if one of the parties appointed under Order I, Rule 8 dies the appeal does not abate if the legal representatives of such person are not brought on record. To a like effect is the principle adumbrated in AIR 1939 572 (Lahore)

The situation in AIR 1935 33 (Lahore) called in aid by the learned counsel for the respondents is quite dissimilar to that prevailing in the present case. In that case, a suit brought by certain persons in a representative capacity against a debtor was ultimately compromised by the defendant paying a certain amount to the plaintiffs representing the proprietary body and the District Judge passed a decree accepting the terms of the compromise. Against that decree, two other persons sought to file an appeal to the High Court.

The opposition of the respondents to the appeal prevailed with Abdul Rashid, J. The learned Judge remarked that the three persons who were appointed to represent the entire proprietary body by the Court were the only parties in the suit and that, if any other person was to be added as a plaintiff, he was entitled to, request the court to add him as a plaintiff and if his prayer was granted he also became a party to the suit. It should be remembered that in that case the decree was passed by consent of the parties and Sec. 96(3), C. P. C. prohibits an appeal being preferred against a decree passed by a Court with the consent of parties. It is in those circumstances that the learned Judge indicated the procedure to be followed in such a case.

We shall now proceed to examine the cases which have laid down that the court has ample power to grant leave to file an appeal to a person not a party to the proceeding against the decree or judgment if that decree or judgment had prejudicially affected such a person. In The Province of Bombay Vs. Western India Automobile Association, , a dispute existed between the Western India Automobile Association and its workers and the workers struck work. The Government of Bombay thereupon referred the matter to the Industrial Tribunal for arbitration. The Association challenging the jurisdiction of the Tribunal to enquire into the matter, filed a petition under Article 226 of the Constitution to prohibit the Tribunal from holding the enquiry. A single Judge of the Bombay High Court accepted the petition. The State of Bombay wanted to file an appeal against the order of the single Judge with the leave of the Court.

A preliminary objection was taken as to the maintainability of the appeal at the instance of the Government, which was not a party to the Writ petition. A Bench of that Court consisting of Chagla, C. J. and Bhagwati, J. ruled that although the Government could not file an appeal as a matter of right, it could ask for leave to file an appeal which the appellate court could grant if it thought that it was a proper case for the grant of such relief. Bhagwati, J. who dealt with this matter elaborately, observed inter alia:

A person who is not a party to the suit or proceeding has no right to appeal against the decision and this is the position where a person who is not such party is aggrieved by the decision and wants to appeal against it. He can only ask for leave to appeal from the appellate court before he can be allowed to file an appeal.

x x x

The only remedy open to him, if his interests are adversely affected or if he is aggrieved by a decision of the Court, is to approach the appellate court and ask for leave to appeal which the appellate Court would grant in proper cases.

This is the position in England as one finds it laid down in Re Securities Insurance Co. (1894) 2 Ch 410 where Lindley, J., observed inter alia.

... A person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave... If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal.

To a like effect is the statement of law contained in K. Ponnalagu Ammal Vs. The State of Madras and Others, In that case, a Division Bench of the Madras Court was concerned with a preliminary objection that an appeal was not competent and the appellate court had no power to grant leave to appeal against the judgment of one of the Judges of the High Court, who directed in an application under Art. 226 of the Constitution the handing over of the estate of Marungapuri to the senior widow of the late Zamindar, one Lakshmi Ammani, by the Court of Wards as she was no longer their ward. Neither the State of Madras nor the Court of Wards who were parties to the proceeding took the matter in appeal. But Ponnalagu Ammani, another widow of the Zamindar of Marungapuri, filed an application for leave to prefer an appeal under the Letters Patent on the ground that, though she was not impleaded as a party, her rights were affected by the order of the learned Judge.

While dealing with the objection that there was no power in the court to comply with this request, the learned Judges observed that the provisions of the CPC did not prohibit the granting of leave and that it was also in accord with the procedure obtaining in England. However they refused leave having regard to the circumstances of the case.

With great respect to the learned Judges, we think that this sets out the legal position correctly and we express our assent to this proposition.

That a practice to grant leave in cases of this type prevails in England could be seen from the Annual Practice for 1961, a relevant passage from which has been extracted above. We have already referred to a passage in Halsbury''s Laws of England which is to a like effect. The test to be applied for the grant of leave in such cases was propounded by the learned Judges thus :

It would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. Ordinarily leave to appeal should be granted to persons who, though not parties to the proceeding, would be bound by the, decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings.

We may now turn to the observations of Cotton L. J. in Watson v. Cave (No. 1) (1881) 17 Ch D 19. Cotton L. J. makes a distinction between cases of plaintiffs bringing representative cases and cases of representation wherein they are impleaded in similar capacity. With regard to defendants, the position is stated thus :

''''Where a decree or order is made binding estates or interests in properties of various individuals who are represented by some persons on the record then the Court will under some circumstances allow a person interested in the property to appeal if the party representing him on the record, and against whom the order has been made, does not wish to do so.

He then pointed out that the position of such plaintiff was quite different from that of the plaintiff who was brought on record as one of the plaintiffs under Order 16, Rule 9 of the Supreme Court Rules. The remarks of James L. J. are also to a like effect.

The principles embodied both in The Province of Bombay Vs. Western India Automobile Association, and K. Ponnalagu Ammal Vs. The State of Madras and Others, are in consonance with the dicta in (1881) 17 Ch D 19.

These two decisions were followed by the Rajasthan High Court in Heersingh and Others Vs. Veerka and Another, and the Kerala High Court in Executive Officer, Sri Padmanabhaswamy Temple Vs. Raghavan Pillai and Another,

What emerges from the above discussion is that if a person is deemed to be a party under Order 1, Rule 8 C. P. C. and for purposes of S. 11, Explanation VI C. P. C. leave to appeal could be granted to him by the appellate court in an appropriate case, if the decision rendered in those proceedings would adversely affect him. It is net in every case where a person may be remotely or indirectly affected that leave should be granted but it should be granted to persons who though not eo nomine parties would be bound by the decree or judgment in the proceeding and who could not by reason of Explanation 6 to Sec. 11, C. P. C. agitate the same question in separate proceedings.

It is needless to say that it would be illogical to hold that while a person is deemed to be a party to a proceeding and would be bound by a judgment rendered against him in a representative capacity, he would not be permitted to file an appeal against the decree if the person who is actually a party to the proceedings does net choose to carry the matter in appeal against that decree or order. We hold that there is no obstacle created either by the provisions of the CPC or by any practice obtaining either in India or in England in the way of granting leave to file an appeal to persons who are not eo nomine parties to the proceeding but who at the same time would be bound by the judgment or decree of the court, granted in such proceeding.

In the circumstances, we answer the question referred to the Full Bench in the affirmative. The delay is excused on condition that the petitioners pay a sum of Rs. 100/- to Sri N. C. V. Ramanujachari, Counsel for the respondents, on or before 15th August 1961, and they are granted leave to file an appeal.

Note: Sri N. C. V. Ramanujachari has filed a stamped receipt acknowledging the receipt of Rs.100/- from Sri A. Narasimham on 8-8-1961.