Paramjit Singh and others vs The Additional District Judge, Ludhiana and others

This revision is directed against the order dated February 9, 1991, vide which an application filed by the plaintiffs, under Order XLI, Rule 20 of the Code of Civil Procedure, seeking permission to implead as respondents the original defendants Nos. 5 to 17 (inclusive of the present petitioners) who were party to the suit could not be impleaded as respondents in the appeal, was allowed.

The facts giving rise to the present revision may briefly be noticed. Parmatma Singh and Kartar Singh, respondent Nos. 2 and 3, filed a suit for declaration against Atma Singh, Narinder Singh, Manjit Singh and Saranjit Kaur. During the pendency of the suit, defendant Nos. 5 to 17 were im-pleaded by way of an amendment. The suit filed by the plaintiffs was dismissed vide judgment and decree passed on that behalf by the trial Court on October 21, 1987. The plaintiffs, who are respondent Nos. 2 and 3 in the present petition, being aggrieved against the judgment and decree passed by the trial Court, carried an appeal on March 19, 1988, before the District Judge, Ludhiana, which came up for disposal before the Additional District Judge, Ludhiana. However before the matter could be taken on merits, the plaintiffs filed an application under Order XLI, Rule 20 of the CPC on January 18, 1991 so as to impiead as respondents, the original defendant Nos. 5 to 17, who as referred to above, were impleaded in the suit by way of amendment. It is no doubt true that the application aforesaid was filed when limitation to file appeal against defendant Nos. 5 to 17 had already expired. The ground, on which the prayer, referred to above, was successfully made out, was that in the Memorandum of Appeal the names of defendant Nos. 1 to 4 only had been mentioned, whereas the names of defendant Nos. 5 to 17 (in the suit) could not be incorporated as the error arose on account of the fact that the certified copy of the judgment, delivered to the plaintiff-appellants by the Copying Department, did not mention the names of defendant Nos. 5 to 17. The parties were impleaded by talcing the names from the copy of judgment. It was further made out in the application aforesaid that the omission that defendant Nos. 5 to 17 were not impleaded as respondent in the appeal came to the knowledge of the plaintiff-appellants only when Atma Singh applied for stay on January 16, 1991. In brief, it is the error committed by the Copying Agency in preparing the certified copy of the judgment supplied to the plaintiff-appellants, that was stated to be the main ground for giving permission so as to impiead defendant Nos. 5 to 17 as respondents in the appeal even though the time for filing appeal against them had already expired. As referred to above, it is this application, which was allowed by the Additional District Judge, Ludhiana, on February 9, 1991 and, therefore, the present revision has been filed by Paramjit Singh, Sarabjit Singh and Karamjit Singh, who were defendant Nos. 5, 6 and 7, respectively, in the suit.

Mr. Jagmohan Singh Chowdhary, learned counsel for the petitioners, while assailing the order under revision has taken me through the provisions of Order XLI, Rule 20 of the CPC and from the reading thereof his contention is two-fold. Firstly, he maintains that where a decree has been passed in favour of a person or a suit has been dismissed against a person and the period of limitation for appeal has expired, he cannot be deemed as interested in the result of appeal filed in the case pending between other persons who were Parties to the litigation in the lower Court, Therefore, such a person cannot be said to be inierested in the result of the appeal afler expiry of period of limitation and that he cannot be impleaded as party-respondent in appeal as prayed in the application filed by the other side, under Order XLI, Rule 20, C.P.C. His second and of course last contention is that since the certified copy of the decree-sheet contained the names of all the defendants whether originally sued or impleaded later, then the mere fact that the names of defendants 5 to 17 were not mentioned in the certified copy of the judgment would not provide sufficient cause to the plaintiff-appellants to ask for impleading of such persons, who were originally not arrayed in the Memorandum of Appeal. In support of his first contention, the learned counsel relies upon Paras Ram Vs. Maharaj Ekling Singhji and Others, , whereas for the other proposition reliance has been placed upon Ramphal v. Kharak Singh 1974 RLR 353 (Punj & Har), State of Haryana v. Om Prakash 1979 PLJ 448, and Gurbhagat Singh v. Karam Singh 1981 Rev LR 17 (Punj & Har). Before commenting upon the various contentions raised by the learned counsel, it shall be useful to reproduce the provisions of Order XLI, Rule 20, C.P.C., which run thus :--

Power to adjourn hearing and direct persons appearing interested to be made respondents :--

(1) Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a parly to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.

(2) No respondent shall be added under this rule, after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit."

The rule, as reproduced above, was inserted by virtue of Section 87, C.P.C. (Amend.) Act, 1976, w.e.f. February 1, 1977. A perusal of the rule, quoted above, would show that the Court has power even suo motu to adjourn the hearing to a future date and direct that any person who was a party to the suit in the Court from whose decree the appeal has been preferred, but who has not been made a party to the appeal, be made a respondent. Sub-rule (2) of Rule 20 of Order XLI, C.P.C. however, requires that no respondent shall be added after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs it thinks fit. It is, thus, clear that even though the limitation might have expired but if the Court finds, for reasons to be recorded a sufficient cause to implead a person as respondent, then the same can be done. If the first contention as raised by the learned counsel is accepted, then in that case the moment the limitation is over and an appeal has not been filed against a person, although he was a party in the Court below, there shall be no choice with the Court but for to decline the prayer to implead him thus rendering the latter part of sub-rule (2) of Rule 20 of Order XLI, C.P.C. to be redundant. The facts of the case Paras Ram Vs. Maharaj Ekling Singhji and Others, would show that one Kesrimal was defendant No. 8 as there were in all ten defendants, inclusive of Maharaj Ekling Singhji. Against the judgment and decree of dismissal of the plaintiffs suit, an appeal under S. 96, C.P.C. was filed. In that appeal, defendant No. 8, who was a party in the suit, was not impleaded as respondent. On August 16, 1973, on behalf of the respondents, a preliminary objection was raised that the appeal was not properly constituted as Kesrimal, who was one of the creditors and was impleaded as defendant No. 8 in the suit for declaration under O. XXI, R. 63, C.P.C. had not been impleaded as respondent. On August 20, 1973, a reply was submitted that Kesrimal, who had contested the suit, agreed to withdraw the attachment and in fact, withdrew the attachment and so he was not made a party to the appeal. Before the learned single Judge, counsel submitted that Kesrimal had no subsisting interest in the subject-matter of the suit and so, the question of there being two conflicting adjudications of the case, does not arise. According to the learned counsel, Kesrimal was not a necessary party to the appeal. Even though the contention of the counsel was as mentioned above, yet an application under O. XLI, R. 20, C.P.C. was filed on behalf of the appellant praying that Kesrimal may be impleaded as party-respondent to the appeal, and delay so caused in impleading him may be condoned. The learned single Judge found that after Kesrimal had contested the suit and it had resulted in an adjudication in favour of Kesrimal, regarding the title of the plaintiff in the suit money based on the assignment deed in his favour, any contrary decision in appeal is bound to lead to two contradictory decrees in respect of the attached compensation amount. It was not considered proper by the learned single Judge to allow the application filed on behalf of the appellant to implead Kesrimal as party-respondent in the appeal after the lapse of four years. The appeal was dismissed as not properly constituted. In the special appeal filed before the Division Bench, the findings recorded by the learned single Judge were assailed and following two points had arisen for determination by the Division Bench (at p. 238 of AIR) :--

(1) Whether in the facts and circumstances of the case, defendant No. 8 Kesrimal was a necessary party to the appeal, which was filed by the plaintiff under S. 96, C.P.C., and if so, whether his non-joinder affects the maintainability of the appeal?

(2) Whether the learned single Judge was not right in not allowing the application filed on behalf of the appellant under O. XLI, R. 20, C.P.C. for impleading Kesrimal, defendant No. 8, as party-respondent to the appeal?

On the first question after considering the entire matter, the Division Bench came to the conclusion that Kesrimal was a necessary party to the appeal, which was filed by the plaintiff under S. 96, C.P.C. and that his non- joinder had the effect on the maintainability of the appeal. So far as dismissal of the application, which was filed on August 20, 1973, for impleading Kesrimal as party-respondent is concerned, it was observed that the application itself was moved after four years. "While considering one of the tests for the purpose of impleading the respondent being that he should be interested in the appeal, it was observed that the expression ''interested in the result of the appeal'', is not to see whether his presence before the Court was necessary for the adequate disposal of the appeal on its merits, but whether the proposed party is one whose interests are likely to be prejudiced by the determination of the appeal as constituted. While dealing with the case, it was held that giving the words ''interested in the result of the appeal'' their natural meaning, it was impossible to say that in the case the defendants against whom the suit had been dismissed and against whom the right of appeal had become barred, were interested in the result of the appeal filed by the plaintiff against the other defendants. In the ultimate analysis, it was held that Kesrimal defendant could not be impleaded as party-respondent as prayed by the appellant in an application filed after the lapse of four years and that Kesrimal could not be said to be interested in the appeal after the expiry of the period that had expired.

The reading of the judgment aforesaid does support the contention of learned counsel for the petitioners but when examined on the language of sub-rule (2) of Rule 20 of Order XL1 of the CPC as also the judgments of this Court, reference of which shall be given in the later part of the judgment, I do not find any merit in the same. A Full Bench of Lahore High Court in "Labhu Ram v. Ram Partap AIR 1944 Lah 76 held that once time for an appeal has run out it is not possible for the appellant subsequently to implead those defendants who were not originally impleaded as respondents in the appeal. It was further held that in a case any necessary party to an appeal has been omitted, the Court cannot exercise any power vested in it by Order XLI, Rule 20, C.P.C. to cover up the omission and that a Court of Appeal could not exercise its powers under Order XLI, Rule 20, C.P.C. if limitation had already expired and also that no question to condone delay u/s 5 of the Limitation Act would arise in such a case. The view taken by the Lahore High Court in Labhu Ram''s case (supra) was not -approved by the Full Bench of this Court in " Notified Area Committee Buria Vs. Gobind Ram Lachhman Dass and Others, . It was held by the Full Bench in the aforesaid case that if a party to the original proceedings is not impleaded in appeal on account of bona fide mistake on the part of the appellant, the appellate Court has ample power under Order XLI, Rule 20, C.P.C. to allow the mistake to be rectified and the party to be added. The Full Bench further held that apart from the provisions contained in Order XLI, Rule 20, C.P.C. the appellate Court has inherent powers to permit the parties to be added in appeals in suitable cases and the language of Order XLI, Rule 20 was not exclusive or exhaustive so as to deprive the appellate Court of the inherent powers in this respect. Justice J.V. Gupta in "Sube Singh v. Sultan (1986) 90 Pun LR 303 by following the decision rendered by the Full Bench in Notified Area Committee''s case (supra) noticed the departure from law as has been noticed above. The Division Bench of Rajasthan High Court in Paras Ram Vs. Maharaj Ekling Singhji and Others, did not notice the decision of this Court rendered by the Full Bench in Notified Area Committee''s case (supra). Again the provisions contained in sub-rule (2) of Rule 20 of Order XLI were not specifically noticed by the Division Bench of the Rajasthan High Court. In Punjab State v. Tarsem Singh 1986 Pun LJ 509, J. V. Gupta, J. noticed that sub-rule (2) of Rule 20 of Order XLI was added by virtue of Amending Act 1976. The provisions of sub-rule (2) make it abundantly clear that the Court has jurisdiction to implead a person as a respondent in appeal if he was a party in a suit even though period of limitation has expired.

The contention of Mr. Chaudhry learned counsel for the petitioners also cannot be accepted on the ground that if on expiry of period of limitation, a person not impleaded originally in the appeal can be said to be a person not interested in the result of the appeal then in that case the later part of sub-rule (2) of Rule 20 of Order XLI, as noticed above, would be meaningless. It is settled proposition of law that the words given in a Statute have to be given their full meaning as also that no words mentioned in a Section or Rule are superfluous. Sub-rule (2) of Rule 20 of Order XLI, C.P.C. clearly talks of the situation, where the period of limitation for filing an appeal against a particular party has already expired. It is in that situation that by holding that a sufficient cause has been made out that the Court has power to allow to implead a person as a party. If the intention of the Rule was not to invest the Court with any power to implead a party in an appeal after the period of limitation for filing an appeal against him has expired then there was no necessity whatsoever to insert the later part of sub-rule (2) of Rule 20 of Order XLI, C.P.C. The first contention of the learned counsel, thus, fails.

Dealing with the second contention of the learned counsel, suffice it to say that no hard and fast rule can be adopted and it depends on the facts of each case as to whether a sufficient cause for impleading a party to the suit in appeal after expiry of period of appeal has been made out or not. The moment such sufficient cause is made out, the Court shall have every power to implead such a person as a party to the appeal. In Gurbhagat Singh''s case 1981 Rev LR 17) (Punj & Har) (supra), the prayer for impleading a person in appeal as a party was not allowed on the ground that the name of the said person did appear in the certified copy of the order on the basis of which the appeal was filed by the judgment-debtors and surety in the lower Appellate Court. It was also not disputed in that case tha t his name did so appear in the application filed by the decree-holders, under S. 145, C.P.C. The single Judge further held that it was in the knowledge of the appellants that he was a party right from the beginning of the litigation i. e. from the date of filing of the suit for pre-emption and the passing of the order by the executing Court on May 18, 1971. It was on the facts of the aforesaid case that the act of not initially impleading the person sought to be impleaded in appeal was held to be an act of carelessness. Thus, this judgment would provide no assistance to the petitioners.

It was held in Ram Phal''s case 1974 Rev LR 353) (P&H) (supra) that if a party to the original proceedings is not impleaded in appeal on account of bona fide and honest mistake on the part of the appellant, the Appellate Court has ample powers under O. XLI, R. 20, C.P.C. to allow the mistake to be rectified and the party to be added. However, in the facts of the aforesaid case where the defendant died during the pendency of the suit and his legal representatives were brought on record, failure of the plaintiff-appellant to implead the legal representatives of the deceased as respondents in appeal could not be said to be bona fide and honest mistake merely because the name of the deceased-defendant was mentioned in the judgment though the name of the son of the deceased was included in the certified copy of the decree-sheet. It was on the facts of the said case that it was held that the mistake was due to carelessness of the appellant as death of the defendant was within his knowledge. This judgment, in my view, as well would not support the cause of the petitioners.

Coming now to the last judgment State of Haryana v. Om Parkash 1979 Pun LJ 448) (supra), cited by the learned counsel, it shall be seen that even though the name of the person sought to be impleaded was not mentioned in the judgment and the same was mentioned only in the decree-sheet, the prayer for impleading such person was declined by holding that in the title of the copy of the judgment of the learned Additional District Judge, the State of Haryana and others were shown as respondents. Not only that the names of said defendants 5 to 10 were not mentioned, but even the names of two other officers, namely, the Director of Industries and the Industries Officer, Haryana were also not mentioned. In the decree-sheet, however, the names of all the defendants, who were respondents in the appeal, were mentioned in detail. In the concluding paragraph of the judgment, it was mentioned in clear terms that the decree was passed in favour of the plaintiffs and pro forma defendants 5 to 10. In the Memo of Parties filed in the High Court, the appellants were the State of Haryana, Director of Industries and the Industrial Officer, Narnaul.

On the aforesaid facts, it was held that the person who drafted the memo of parties consulted the decree-sheet to find out the names of other respondents and once it was to be held that such draft was made on persual of the decree-sheet alone which contained the names of all those who were sought to be impleaded, the act of not initially impleading them was to be held on account of sheer negligence. Coming to the facts of the case in hand, as mentioned earlier, the names of defendants Nos. 5 to 17 were not mentioned in the judgment, although their names did find a mention in the decree-sheet. It has been the consistent case of the respondents in this revision that the Memorandum of Appeal was prepared from the certified copy of the judgment and not from the decree-sheet. It is exiomatic that no party should suffer for the acts of omission and commission either of the Presiding Officer of the Court or by the Court officials. The procedural laws are not pit-falls so as to trap the litigants on mistakes though made bona fide. The whole procedure dealing with civil suits has been made with a view to advance the cause of justice. The Court of the Additional District Judge was justified, in the totality of the circumstances of the case, to allow the prayer of the appellants (in the appeal) to implead defendant Nos. 5 to 17 as party to the appeal even though the period for filing the appeal against them had already expired.

Finding no infirmity and illegality in the order under revision, I dismiss this revision leaving the parties to bear their own costs. Parties through their counsel are directed to appear before the Court of learned Additional District Judge, Ludhiana, on May 27, 1992.

Revision dismissed.