Sham Lal and Others vs Sultan and Others

K.V. Gopalakrishnan Nair, J.—This second appeal arises out of a suit which has had a somewhat chequered carrier. The appellants before

us are the defendants in the suit. Seven persons laid the suit in the court of the Sub ordinate Judge at Baramulla for a declaration that they were

owners of the suit land as the nearest heirs of the last owner and that defendants 1 and 3 who were alleged to be strangers to the last owner's

family and the other defendants who were the assigns of defendants 1 and 2 had no manner of right or title to it.

The suit was dismissed by the trial court, and an appeal preferred by the plaintiffs to the District Court proved unsuccessful. In second appeal to

this Court, the decision of the courts below was set aside and a fresh trial on certain specified issues was directed. Accordingly, the suit went back

to the trial court which after trial decreed it. An appeal was preferred by the aggrieved defendants to the Add. District Judge at Srinagar who held

that the appeal was not properly constituted and was, therefore incompetent. The defendants have now come up in second appeal to this Court.

The ground on which the lower appellate court dismissed the appeal as incompetent was that two of the plaintiffs and the legal representatives of

three other plaintiffs were not made party-respondents to the appeal within the period of limitation. It is necessary, at this stage, to set out certain

facts in order to bring out clearly the reasons for the decision of the lower appellate court

After the case was last remanded by this Court to the trial court three of the plaintiffs, Samad, Rehman and Habib, died and their legal

representatives were ordered by the trial court to be brought on record as co-plaintiffs. The plaintiffs also applied that two other persons, namely,

Mst. Shafli and Aziz should be brought into the array of the plaintiffs. This application was granted by the trial court; but the decree passed by the

trial court did not show in its title the names of any of the legal representatives of the three plaintiffs nor the names of the two newly added plaintiffs.

On the other hand, the decree mentioned the names of only the original seven plaintiffs; the same error occurred in the judgment also. Certified

copies of the decree and the judgment which the defendants obtained for the purpose of preferring an appeal to the District Court did not thus

show that two new plaintiffs had been added or that three other plaintiffs were dead and their legal representatives had been impleaded. The

defendants handed over the copies of the judgment and the decree to their counsel at Srinagar which is 34 miles from Baramulla where the trail.

court was situated and instructed him to prefer an appeal to the District Court at Srinagar.

The counsel accordingly preferred an appeal impleading as Respondents only the plaintiffs who were shown in the decree and the judgment. The

result of this was that notices in the appeal were issued to the three Respondents (plaintiffs) who were dead. When the notices returned with the

endorsement that the three persons were dead, the appellant's counsel ascertained the facts and applied for bringing the legal representatives of

these three persons who had already been impleaded in the trial court as co-respondents in the appeal. Even at this stage the counsel for the

appellants in the lower appellate court did not know that two more plaintiffs had been impleaded by the trial court.

This fact was brought to his notice only when the counsel for the Respondents, at the hearing of the appeal, brought it out as part of his preliminary

objection to the maintainability of the appeal. The learned Counsel for the appellants then requested the court to give him time to add the two

persons also as Respondents in the appeal. It appears that the lower appellate court did not wait for this, but held that neither the legal

representatives of the three deceased plaintiffs nor the two subsequently added plaintiffs could be impleaded as Respondents in the appeal after the

period of limitation for filing an appeal had expired. It further held that these persons were necessary parties to the appeal and that in their absence

the appeal could not be held to be validly constituted. Consequently, it came to the conclusion that the appeal was incompetent and dismissed it.

The outstanding fact is that the omission on the part of the appellants to implead as Respondents the legal representatives of the deceased plain

tiffs or the two subsequently added plaintiffs, was almost entirely due to the error in the decree and the judgment which did not unfortunately show

these persons as co-plaintiffs. Should the appellants be penalized for this error of the court? We think the answer should definitely be in the

negative. It was said by Cairns L. C. in Rodger v. The Comptoir D'Escompte de Paris (1871) 9 PC 483:7 Moo PCC (NS) 314:

One of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors and when the expression

'the act of the Court' is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the Act of the Court

as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.

(See also Jai Berham v. Kedar Nath AIR 1922 PG 269).

The learned Counsel for the Respondents has, however, contended that neither this Court nor the lower appellate court has any power to allow

the omitted plaintiffs to be impleaded as Respondents after the period of limitation for preferring an appeal has expired. This, according to him, is

the true interpretation of Q. 41 R, 20 of the CPC The rule reads:

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 had not been made a party 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.

There is nothing in the terms of this rule to support the contention urged on behalf of the Respondents. It is not disputed as a matter of fact that the

persons now sought to be impleaded in the appeal as party-respondents are interested in the result of the appeal. They were parties to the suit but

had not been made parties to the appeal. Therefore, the terms of Order 41, Rule 20 are satisfied in the present case. Yet, it is argued that this case

cannot fall within Order 41, Rule 20 in view of the decision of the Privy Council in AIR 1927 252 (Privy Council)

But this decision cannot be understood as laying down such an absolute proposition. An argument similar to that now advanced on behalf of the

Respondents in this case was put forward before the Bombay High Court in H.H. Darbar Alabhai Vajsurbhai Vs. Bhura Bhaya, ; but a Division

Bench of that High Court did not accept it. The argument was also urged before the Madras High Court in Swaminatha Odayar Vs. T.S.

Gopalaswami Odayar and Others, , and it was pointed out that the Privy Council ruling in AIR 1927 252 (Privy Council) cannot be taken as laying

down that no person against whom the right of appeal has become barred can ever be added as a Respondent under the provisions of Order 41,

Rule 20 of the Civil P.C.

A Division Bench of the Lahore High Court in Shanti Lal v. Firm Hira Lal Sheo Narain AIR 1941 Lah 402 expressly accepted the view of the

Madras High Court. The correct position appears to be that the applicability of Order 41, Rule 20 will depend upon the nature and circumstances

of each case and it cannot be laid down as a hard and fast rule that no person who was a party to the suit in the original court can be added as a

Respondent in an appeal, if the time to appeal against him has expired. As we already indicated the AIR 1927 252 (Privy Council) did not lay

down any such inflexible rule.

Furthermore, this Court has ample power u/s 151 of the C.P.C. to add a Respondent to the appeal even after the expiry of the period of limitation

prescribed for the appeal against him if in the peculiar circumstances of the case before it, it thinks fit to do so. The decision in AIR 1941 Lah 402

(Supra) expressly supports this view. This principle has also been accepted by a Division Bench of the Patna High Court in Padarath Mahton Vs.

Hitan Singh and Others, .

In AIR 1941 16 (Federal Court) , Sulaiman J. observed at p. 28:

The language of Order 41, Rule 20, does not show that it is exclusive or exhaustive so as to deprive a court of any inherent power which it may

possess and can exercise in special circumstances, and which has been saved by Section 151.

Arguments have been addressed to us on behalf of the Respondents that the appellants had been negligent in not impleading all the plaintiffs in

the suit as party Respondents in the appeal they preferred before the lower appellate court. It is stated that if the counsel for the appellants had

taken care to persue the amended plaint filed by the Respondents in the trial court and had compared the title in the amended plaint with that in the

decree and the judgment, he would have found out that the names of all the plaintiffs were not shown in the title of the decree and judgment. We

do not consider that this line of reasoning ought to prevail.

It will be extraordinary to expect a counsel, entrusted with the task of preferring an appeal, to assume that the parties have been erroneously stated

in the title of the decree and the judgment. On the other hand there was every justification for him to assume the contrary. (It is not?) normally

feasible for a counsel to check up these details at the time of filing his memorandum of appeal. Nor would a counsel ordinarily consider it to be

necessary to do so. In the instant case when the appellant's counsel came to know about the mistake in the title of the decree and the judgment,

and the consequent omission to implead all the necessary Respondents in the appeal, he took steps to put things in order. We therefore find it not

possible to impute laches or negligence to the appellants in the present case.

We are satisfied that this is an eminently fit case for us to exercise our inherent powers and condone the delay in impleading as party

Respondents the legal representatives of three of the original plaintiffs, Samad, Rahman and Habib and also the subsequently added plaintiffs, Mst.

Shafli and Aziz. We are also of the view that in the peculiar circumstances of this case the aforesaid persons can properly be impleaded as

Respondents under Order 41, Rule 20 of the C.P.C. even at this stage.

In view of the foregoing, the decision of the lower appellate court is set aside and the case is remitted to it for disposal on merits after impleading

as party Respondents in the appeal all the persons who were in the array of plaintiffs in the trial court at the time it decreed the suit.

Costs will abide and follow the result.

J.N. Wazir, C.J.

I agree.