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1961 DIGILAW 120 (RAJ)

Hamira v. Hamira

1961-05-27

KHEM CHAND SHARMA, S.L.KAKAR

body1961
This is a second appeal against the order of the Addl. Commissioner Ajmer, dated 9.8.58 dismissing the first appeal filed by Shri Hamira appellant against the original order of the S.D.O. Gulabpura dated 29.3.1957. The facts of the case which are relevant for the purpose of this appeal may briefly be stated as follows:—¦ Hamira appellant and one Pura (who is now deceased) filed a suit in the court of the Munsif, Gulabpura on 15.4.49, which was transferred to the court of the S.D.O. Gulabpura on 13.2.51, alleging that field known Dunga Champa, measuring 12 bighas 15 biswas was held as occupancy tenant by their common aunt. She died issuless and the plaintiffs and defendants filed objections which were however, not accepted. The land was put to auction and an agreement was struck between them that the plaintiffs (appellant Hamira and Pura deceased) would get 2/3rd share and the respondents would get 1/3. The appellant and Pura had paid Rs.700/- of their share as the auction money. The respondents however refused to abide by this agreement. It was prayed in the trial court that the appellant Hamira and Pura should be declared to be the khatedars over 2/3 area of this field, the land be partitioned and possession be given to them. The suit was dismissed in the trial court and the appellant Hamira alone filed an appeal in the court of the Additional Commissioner, Ajmer without impleading the legal representative of Pura, who had died by then, as appellant or respondent. The learned Additional Commissioner dismissed the appeal without going into the merits of the case on the grounds that on the death of Pura his son Rama was a necessary party and without bringing him on record it was not possible to decide the share of the appellant inter se though the appellant have asked for 2/3 share jointly. Not bringing Rama the son of Pura on record was, in his opinion, fatal to the appeal and he dismissed the same. It is against this order that the second appeal has been filed by Hamira. The main contention of the counsel for the appellant was that the learned court below erred in law in dismissing the appeal. He should have applied the provisions of O. 41, R. 4 to the case, and decided it on merits. It is against this order that the second appeal has been filed by Hamira. The main contention of the counsel for the appellant was that the learned court below erred in law in dismissing the appeal. He should have applied the provisions of O. 41, R. 4 to the case, and decided it on merits. Even if the legal representative of Pura was, not impleaded as an appellant or as respondent by mistake, the learned court below, it was alleged, should have exercised his discretion in applying the provision of Order 41 Rule 20 if he considered that Pura or his legal representative was a necessary party. The learned counsel for the respondent contended that it was for the learned Additional Commissioner to use his discretion in applying the provision of Order 41 rule 20 or Order 41 rule 4 and when this discretion has not been exercised it was not proper for this court to interfere in it. The question for examination before us was whether Order 41 rule 4 was applicable to the facts of this case and whether failure to apply the same indicated that the learned court below committed any material irregularity or illegality. Order 41 Rule 4 reads as under:— "where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or the defendants, any one of the plaintiffs or the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be." We have, therefore, to see, with reference to the plaint and the order passed by the trial court, whether the decree appealed from in the court of the Addl. Commissioner Ajmer proceeded on a common ground. As stated by us above, the appellant Hamira and Pura deceased had asked for a joint 2/3 share. They had not asked for any distribution of their shares inter se. It is not understood how the learned Additional Commissioner came to the conclusion that he would have to determine their share inter se. The trial court had dismissed the suit on the ground that the appellant had not been able to establish their case. They had not asked for any distribution of their shares inter se. It is not understood how the learned Additional Commissioner came to the conclusion that he would have to determine their share inter se. The trial court had dismissed the suit on the ground that the appellant had not been able to establish their case. The decree as translated reads inter alia the suit of the plaintiff is dismissed as no documentary evidence is produced by the plaintiffs that the documentary evidence is produced by the defendants . It appears to us that both the cause of action and the decree in this case proceeded on a common ground so far as Hamira and Pura deceased. We are therefore, unable to understand why the learned court below did not think it fit to apply the provision of Order 41 rule 4 C.P.C. to the facts of this case, though the point was raised before him. Order 1 rule 9 indicates that no suits should be defeated by reasons of misjoinder or non joinder of parties but that 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. The only cases where the non-joinder of a party will be fatal are those in which the court under the substantive law grants any relief to the parties actually on the record. It cannot be said that the learned Addl. Commissioner could not decide the case in the absence of Puras legal representative as the decree proceeded on the ground common to both the plaintiffs and no splitting of their interest was prayed for. Moreover, before a court (proceeds to dismiss a case as bad for want of non-joinder of a necessary party it has to call upon the plaintiff or the appellant, as the case may be,to join such a party. It is only on the refusal of the plaintiff or the appellant to comply with such order that the suit or appeal can be dismissed. The appellate court below therefore also erred in dismissing the appeal without first calling upon the appellant to implead the legal representative of Pura. This very point came up for decision recently in Narsingda v/s. Bherulal AIR 1961 Rajasthan 81. The appellate court below therefore also erred in dismissing the appeal without first calling upon the appellant to implead the legal representative of Pura. This very point came up for decision recently in Narsingda v/s. Bherulal AIR 1961 Rajasthan 81. Discussing the scope of Order 41 rule 4 his Lordship I.N. Modi J. observed as under : Now the general rule is that on an appeal by one or several plaintiffs or defendants where the appellate court can reverse or vary the decree of the trial court only in favour of the party appealing. Order 41 rule 4 provides an exception to this general rule and gives the court power to pass an appropriate order in favour of even the non-appealing plaintiff or the defendants where the requirement of that rule is satisfied. This requirement is that the decree should proceed on any ground common to all the plaintiffs or the defendants in such a case, the appeal filed by one virtually be termed as appeal by all of them though they may not be a party to the appeal". It would thus appear that the learned first appellate court could go into the merit even though the appeal was filed only by one or two appellants if the decree appealed from proceeded on any ground common to then (as is the position in the present case). The learned counsel for the respondent contends that this was discretionary and we cannot interfere in this discretion in second appeal. This discretion in our opinion lay in reversing or modifying the decree which also implies refusal to reverse or modify, and not in refusing to entertain the appeal on merits when it fell within the purview of Order 41 Rule4. The court below could pass any order even in the absence of Puras legal representative as the decree proceeded on a common ground. There is no question of exercise of discretion by the learned court below in dismissing the appeal on the ground that not adding the legal representative of Pura as one of the appellants was fatal to the hearing of the appeal. As O.41, r.4 was applicable to the facts of the case appeal by one of the plaintiffs was competent. There is no question of exercise of discretion by the learned court below in dismissing the appeal on the ground that not adding the legal representative of Pura as one of the appellants was fatal to the hearing of the appeal. As O.41, r.4 was applicable to the facts of the case appeal by one of the plaintiffs was competent. The learned counsel for the respondent was not able to show us any case in which it has been held that the second appellate court could not interfere it any appeal where the appeal by the first appellate court was dismissed without going into the merits because only one of the plaintiff appealed from a decree based on a ground common to them all as provided under Order 41 rule 4. The learned counsel for the respondent referred to us a few rulings, which we may submit with due deference, are not relevant to the facts of this case. In AIR 1953 Sup. Court para 228 it was held that "where the lower courts in the exercise of their discretion have refused to grant relief against forfeiture, the High Court in second appeal would be justified in refusing to interfere with that discretion exercised in a judicial manner. In A.I.R. 1955 Rajasthan page 167 it was held that grant of damages under the Transfer of Property Act was in the discretion of the court and failure of exercise of said discretion by the lower court would not be interfered with in second appeal unless there are good grounds to do so. In 1 Rajasthan page 618 it was held that there was no reason to interfere in the discretion of the lower court under sec. 34 of C.P.C. These authorities would not be applicable to the facts of the case before us. In view of the observations made by us above, we think that the learned court below committed a material irregularity in dismissing the appeal even though it was filed by one or the appellant as the decree appealed from proceeded on grounds common to both or them and as the other appellant could not be held to be a necessary party. We therefore, accept the appeal and remand the case back to the learned court below with the direction that it may be heard and decided on merits in accordance with law. We therefore, accept the appeal and remand the case back to the learned court below with the direction that it may be heard and decided on merits in accordance with law. We may also draw the attention of the learned court below to the provisions of Order 41 rule 20 where under the learned court below is competent to direct that where a person considered to be a party interested in the result of an appeal if not made an appellant, he should be made a respondent.