Henjangam Kuki v. Taichung Tangkhul — 1971 DIGILAW 43 (GAU)

JUDGMENT: On 6-12-1960 Punchungleng, the Khullakpa of village Keihao Tangkhul, filed a suit for declaration of title to and for possession of the properties described in Schedules A and B, appended to the plaint, against Yamkhotinthang, the chief of village Keihao Heinjang. Punchungleng sued and Yamkhotinthang was sued, it may be mentioned at the outset, in their personal as well as representative capacities, each representing the residents of his respective village. The necessary permission of the Court under Rule 8 of Order 1, Civil P.C., was properly secured by Punchungleng. The defendant Yamkhotinthang died during the pendency of the suit with the consequence that Punchungleng moved an application in the trial Court on 7th September 1964 praying that the two sons, Letkhai and Tungkhothang, of the deceased defendant be brought on the record. The trial Court passed an order on the same day bringing only Tungkhothang on the record as representative of his deceased father. The suit ended in course of time in judgment dated 19-2-1966 by which the claim respecting the properties mentioned in the Schedule B was decreed while that pertaining to properties mentioned in Schedule A was dismissed. Punchungleng having felt aggrieved with the partial dismissal of his suit filed Appeal No.25 of 1966 in the Court of District Judge. Since Tungkhothang, the son of deceased Yamkhotinthang, did not to file an appeal challeng irespecting land mentioned probably for the reason that student at Delhi in those days could not appreciate the implications of the decree, it was Henjagam, a younger brother of Yamkhotinthang and uncle of Tungkhothang, who filed Appeal No.19 of 1966 in that respect. Henjagam mentioned in his memorandum of appeal that he had the right to file the appeal in his capacity as the acting Chief of the village, and also for the reason that his nephew Tungkhothang was out of Manipur in connection with his studies. Another contention raised by him was that he was highly interested in the outcome of the litigation and so he had filed the appeal in his own right, besides as a representative of his co-villagers. Before Henjagams appeal could be heard on merits he moved an application on 13th November 1968, which was registered as Judicial Misc. Case No.22 of 1968, praying that his name as appellant should be substituted by that of Tungkhothang, or, alternatively, Tungkhothang be brought on the record as his co-appellant. Before Henjagams appeal could be heard on merits he moved an application on 13th November 1968, which was registered as Judicial Misc. Case No.22 of 1968, praying that his name as appellant should be substituted by that of Tungkhothang, or, alternatively, Tungkhothang be brought on the record as his co-appellant. That prayer was however seriously challenged by the defendant-respondent Punchungleng. He urged that the appeal having been filed by a person not competent to do so it merited dismissal on that footing alone. 2. By his order dated 22nd February, 1969, the learned Additional District Judge rejected Henjagams application dated 13-11-1968 on the finding that he had no legal right to file an appeal in face of the trial Courts order dated 7th September 1964 bringing Tungkhothang on the record as legal representative of the deceased defendant Yamkhotinthang. On the same date he dismissed Henjagams Appeal No.19 of 1966 for identical reason, viz., that he had no right to file the same. Against the rejection of his application. dated 13-11-1968 Henjagam filed Civil Revision No.26 of 1969 in this Court, and against the dismissal of his Appeal No.19 of 1966 he came up in second appeal to this Court, the same having been registered as No.21 of 1969. 3. The rival appeal No.25 of 1956 filed by the plaintiff Punchungleng in the Court of the District Judge was also dismissed on 8th January 1970. In that appeal the respondent Tungkhothang had moved an application under Rule 33, Order XLI Civil P.C, praying that the suit of the plaintiff Punchungleng respecting properties described in Sch.B should also be dismissed because the trial Court had gravely erred in decreeing the suit qua them although on all material issues settled between the parties the findings had gone against Punchungleng. This prayer of Tungkhothang was rejected by the learned Additional District Judge while deciding Appeal No Are of 1966. Against the rejection of than application Tungkhothang has filed, along with his brother Letkhai, Civil Revision No.11 of 1970. 4. Since the Second Appeal No. 21 of 1969 and the Civil Revision Nos.26 of 1969 and 11 of 1970 arise out of the same suit it would be convenient to dispose of them by this common judgment. 5. Against the rejection of than application Tungkhothang has filed, along with his brother Letkhai, Civil Revision No.11 of 1970. 4. Since the Second Appeal No. 21 of 1969 and the Civil Revision Nos.26 of 1969 and 11 of 1970 arise out of the same suit it would be convenient to dispose of them by this common judgment. 5. Before proceeding with the discussion of the points canvassed by the parties counsel in Second Appeal and the two Revision Applications, a preliminary point raised by Shri Manisana Singh, representing the respondent in the Second Appeal and in Civil Revision No.26 of 1969, must be dealt with. That Appeal and the Revision were filed each on 19-7-1969, citing Punchungleng as the sole respondent. Subsequently, in each case, an application was made on 23-9-1969 praying that Punchungleng having died his son Taichung Tangkhul should be brought on the record. Notice of that application in each case was sent to Taichung who put in appearance in this Court on 9-6-1970 when he said that he may be brought on the record, on account of his fathers death, as representative of his co-villagers in terms of O.1, R.8. In view of that stand taken by Taichung, this Court brought him on the record as such both in the Second Appeal as well as in the Civil Revision No.26 of 1969. The contention raised by Shri Manisana Singh was that since Punchungleng had died on 29-3-1969, the Appeal and the Revision having been filed after his death and he being the lone respondent in each case, the appeal as well as civil revision were still-born and so could not be animated. He submitted further that the order dated 9-6-1970, by which Taichung was brought on the record as legal representative of his father in both the cases, could not have the effect of reviving either the appeal or the civil revision. To buttress his stand, Shri Manisana Singh cited the analogy of law bearing on a suit filed against a dead defendant. Such a suit, it was conceded by Shri Charugopal Singh, who appeared for Henjagam and his two nephews, Letkhai and Tungkhothang, is no suit in the eye of law, it being void and of no legal effect. To buttress his stand, Shri Manisana Singh cited the analogy of law bearing on a suit filed against a dead defendant. Such a suit, it was conceded by Shri Charugopal Singh, who appeared for Henjagam and his two nephews, Letkhai and Tungkhothang, is no suit in the eye of law, it being void and of no legal effect. However, it was strenuously urged by Shri Charugopal Singh that the analogy of suit against a deceased defendant has no applicability to an appeal or revision against a dead respondent. The point in controversy was debated at great length in this Court by the parties learned counsel and the law bearing on the subject was examined threadbare. Towards the close of his arguments, however, Shri Manisana Singh came round the view that there is a clear distinction, recognised by almost all the High Courts in India, between a suit against a dead defendant and an appeal or revision against a deceased respondent. On page 3336 of the A.I.R. Commentaries on the Code of Civil Procedure. 7th Edition, it is stated that "an appeal filed against a dead party can, according to the High Courts of Allahabad, Bombay, Calcutta, Lahore, Madras. Mysore and Nagpur and the Judicial Commissioners Court of Peshawar, be amended by bringing in the legal representatives on the record." Therefore, it looks obvious that an appeal against a deceased respondent is not a nullity as a suit is because appeal can be legalised by bringing on record the representatives of the deceased respondent of course subject to the question of limitation which may be taken up by the appellate Court suo motu or at the instance of the legal representatives of the deceased respondent. The ratio behind the distinction between a suit and an appeal filed against a deceased person is that Section 5 of the Limitation Act, bearing on the extension of prescribed period in certain cases, applies to appeals and not to suits. If an appeal is filed against a deceased respondent it can be validated by amendment of cause title of appeal if by the date of amendment it is within time and if not then with the aid of Section 5 of the Limitation Act provided there is justification for condonation of delay upto the date the amendment application is filed. Such course evidently is not open respecting a suit filed against the deceased defendant. Such course evidently is not open respecting a suit filed against the deceased defendant. The law governing civil revisions filed against deceased respondent must be taken to be identical with that applicable to appeals inasmuch as Section 5 of the Limitation Act can be invoked by the revision petitioner even as can be done by the appellant. I would, therefore, hold that neither the second appeal nor the Civil Revision No.26 of 1969 can be thrown out on the sole ground that originally each had been filed against a dead person. 6. The next point raised by Shri Manisana Singh relates to the applications made in this Court by Henjagam for bringing the legal representatives of Punehungleng on record of the Second Appeal and Civil Revision No.26 of 1969. He submitted that though Punchungleng had died on 29-3-1969 and Henjagam, according to his own admission in the two applications, had learnt about that death on 20-8-1969, he moved the applications on 23-9-1969 which was more than one month after he got the knowledge of the death, and as such they were highly belated and should not have been entertained. Tersely put, his precise contention was that it was for Henjagam to explain convincingly the delay between 20th August 1969 and 23rd September 1969 before Taichung could be brought on the record as representative of Yamkhotinthang by amendment of the titles of Appeal and the Revision. The point raised by Shri Manisana Singh, I agree, is neither frivolous nor in the nature of pettifogging for if in an appeal against a dead person the appellant moves the Court for bringing on record the representatives of the deceased quite belatedly, the representatives can validly oppose the prayer made and the Court may well reject it unless the delay can be reasonably explained. However, that point lost its edge when Taichung appeared before this Court on 9-6-1970 and expressed his willingness, without even a formal objection, to his being brought on the record as a representative of the deceased in terms of Order 1, Rule 8, Civil P.C. It is on the basis of his admission that an order bringing him on the record was passed. It is, therefore, much too late for Shri Manisana Singh to contend that the order dated 9-6-1970 should be quashed, and that the appeal as well as the civil revision petition should be thrown out on the sole ground that Henjagam had failed to explain the delay in taking a month and three days in filing the applications for bringing Taichung on the record in the appeal and the civil revision after he had learnt about the death of Punchungleng on 20th August 1969.The proper time for raising such an objection was 9-6-1970 when the applications came up for hearing before this Court. It would amount to perpetrating manifest injustice to Henjagam if the order dated 9-6-1970, which was passed in the presence of Taichung and without any objection by him, were vacated at this distant date. Therefore, on rejecting the point raised by Shri Manisana Singh I hold that the Second Appeal as well as the Civil Revision No.26 of 1969 are validly before the Court at present. 7. This takes me to the consideration of Civil Revision No.11 of 1970 filed by the two sons of Yamkhotinthang. It was contended on their behalf that since the trial Court had found all the issues settled between the parties in favour of the defendant, it ought to have, in fairness, dismissed the suit in its entirety, and that since that Court had failed in discharging its legal obligations it was certainly incumbent on the Appellate Court to do the needful by exercising power under R.33 of O.41 while deciding Appeal No.25 of 1966 filed by Punchungleng. After carefully weighing the arguments addressed at the bar, I have come to the finding that this contention is without merit and so must be rejected. A revision under Section 115 of the Code lies only if the subordinate Court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. It was not contended on behalf of the revision petitioner that the trial Court in refusing to exercise power under Rule 33 had failed to exercise a jurisdiction vested in it by law. It was not contended on behalf of the revision petitioner that the trial Court in refusing to exercise power under Rule 33 had failed to exercise a jurisdiction vested in it by law. All that was said at the bar on their behalf was that the trial Court had acted illegally or with material irregularity in the exercise of its jurisdiction while deciding the point raised on the authority of Rule 33. I regret my inability to accept that contention as well founded. The Privy Council held in the case of Amir Hassan Khan v. Sheo Baksh Singh, (1884) ILR 11 Cal 6(PC) that if the Court had jurisdiction to decide the question which was debated before it, and it did decide the same, the mere fact that that question was decided wrongly would not sustain the charge that the jurisdiction was exercised illegally or with material irregularity for a Court seized with a matter, the Privy Council emphasised, has the jurisdiction to decide it one way or the other. This interpretation of Cl.(c) of Section 115 is not open to challenge, nor was assailed. Reference to para 25 of the judgment of the Additional District Judge in Appeal No.25 of 1966 would show that the point raised on behalf of Henjagam in this Court was duly considered by him though rejected for the reasons stated therein. Hence, I repel the contention that the Additional District. Judge had committed any illegality or material irregularity in the matter of deciding the question raised before him. 8. Assuming for a while for the sake of argument that the revision petition filed by Letkhai and Tungkhothang in this Court is legally maintainable, I find no substance in it on merits. Rule 33 gives power to the Appellate Court to pass any decree or make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and provides further that this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have, filed any appeal or objection. The phraseology of the rule makes it abundantly clear that it vests the appellate Court with powers which it may exercise, in its discretion. The rule does not make it obligatory for the Appellate Court to exercise the powers given to it. It is a settled rule of practice that, speaking normally, the Re visional Court should abstain from interfering with the discretionary powers of the subordinate Courts. AIR 1965 SC 1874 . Nirmala Bala v. Balai Chand, is an authority for the proposition that though R.33 "is expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final, so as to enable the Court to adjust the rights of the parties." The Supreme Court observed further that if the appellate Court reaches a conclusion which is inconsistent with that of the court appealed from and in adjusting the right claimed by the appellant it is found necessary to grant relief to a person who has not appealed, the power under O.41, R.33 may properly be invoked." "No unrestricted right", the Supreme Court ruled, "however, is conferred by the Rule to reopen decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from." It is manifest from these observations that the power under Rule 33 can fairly be exercised only if while granting some relief to the appellant it becomes necessary to adjust the rights of the other parties. In the case of Nirmala Bala the Supreme Court refused to act under the Rule for the reason that "in this suit one of the decrees could stand apart from the other since there were two sets of defendants and in substance two decrees though related were passed." Since Appeal No.25 of 1966 filed by Punchungleng was dismissed by the Additional District Judge, he was not bound to reopen the decree made by the trial Court respecting the properties for which the claim of Punch ungleng was allowed. As a matter of fact the trial Court had made two decrees, one dismissing the claim respecting properties described in Schedule A and the other allowing the claim in regard to properties mentioned in Schedule B, and the two decrees or two parts of the composite decree could legitimately stand side by side. Therefore, the Revision Petition No.11 of 1970 filed by the two sons of Yamkhotinthang fails and is hereby rejected. However, I leave the parties of that revision to bear their own costs. 9. I now take up the Second Appeal and Revision Petition No.26 of 1969 filed by Henjagam. The learned Additional District Judge dismissed the application dated 13th November 1968 of Henjaga:n by order dated 22-2-69 on the findings that "A person who was not allowed to defend by the trial Court cannot be allowed to file the appeal on behalf of the villagers by the appellate Court" and that "the defendant who was allowed to defend the suit was the only person entitled to have filed the appeal." Shri Manisana Singh pressed into service identical argument in this Court in support of the view that Henjagam had no legal right or sanction of law to file the appeal or to urge that Tungkhothang, who had been appointed by the trial Court as the legal representative of Yamkhotinthang, be substituted vice him as in appellant or that he be added as a coappellant with him. In support of that contention Shri Manisana Singh principally relied on the decision in AIR 1935 Lah 33, Abdulla v. Parshotam. The proposition enunciated in this authority was that when a suit is brought in a representative capacity after obtaining the permission of the Court under O.1, R.8, then the representatives appointed by the Court are the only parties to the suit, and that when such persons compromise he suit and the compromise is given effect to by the Court in the shape of a decree, others cannot appeal from such decree. These observations of the Lahore High Court were examined carefully in AIR 1962 Andh Pra 140 (FB), Dimmiti Pullayya v. A. Nagabhushanam, and it was held that nothing said in the judgment could sustain the contention that in a representative suit if a person not on record as nominee is affected by the decree made by the trial Court he cannot approach the appellate Court for permission to file an appeal for assailing that decree under any circumstances. The point emphasised by the Andhra Pradesh High Court respecting the Lahore case was that the decree of the trial Court having been passed on consent of the parties no appeal lay against it in view of S.96(3) of the Civil P.C. I think the Andhra Pradesh High Court was right in appreciating the judgment of the Lahore High Court and holding it as not an authority for the proposition canvassed in this Court by Shri Manisana Singh. 10. It was held in the case of Dimmiti Pullayya, AIR 1962 Andh Pra 140 (FB) (Supra) that if a person is deemed to be a party under O.1, R.8, and for the purposes of Sec.11, Explanation VI, Civil P.C, leave to appeal could be granted to him by the appellate Court in an appropriate case if the decision rendered by the subordinate Court adversely affects him. The High Court observed: "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 not choose to carry the matter in appeal against that decree or order." I think the matter is concluded by the Privy Council judgment reported in AIR 1915 PC 124, V. Venkatanarayana v. Subbammal. The facts of the case may be set out in brief to bring out the exact proposition enunciated by the Privy Council. Venkatanarayana brought a suit in the High Court of Madras in its ordinary civil jurisdiction to obtain a declaration that the adoption of the second defendant by Subbammal, the first defendant, was invalid and so did not affect his (Venkatanarayanas) reversionary interest in the ancestral estate of the deceased Venkatakrishna. Venkatanarayana brought a suit in the High Court of Madras in its ordinary civil jurisdiction to obtain a declaration that the adoption of the second defendant by Subbammal, the first defendant, was invalid and so did not affect his (Venkatanarayanas) reversionary interest in the ancestral estate of the deceased Venkatakrishna. The suit was dismissed by the High Court and so Venkatanarayana filed an appeal to His Majesty in Council. Venkatanarayana died on 19th of November 1913 during the pendency of that appeal and thereupon one Kuppusami Pillay applied to be substituted as an appellant vice Venkatanarayana. That application was opposed by the respondents of the appeal. While allowing the application of Kuppusami Pillay, the Privy Council held that the suit brought by Venkatanarayana, who then happened to be the presumptive reversioner, was in a representative capacity and on behalf of all the reversioners that the act complained of by Venkatanarayana was to their common detriment just as the relief sought by him was for their common benefit, and that as such on the death of the presumptive reversioner the next presumable reversioner would clearly be entitled to continue the action Instituted by the deceased plaintiff. The Privy Council observed, while ruling to that effect, that what has to be considered is "whether the right to sue survives and if it does, who can continue the action to obtain the relief that is sought?" The reply given to the question posed was: "There is nothing to preclude a remote reversioner from joining or asking to be joined in the action brought by the presumptive reversioner, or even obtaining the conduct of the suit on proof of laches on the part of the plaintiff or collusion between him and the widow or other female whose acts are impugned. It is the common injury to the reversionary rights which entitles the reversioners to sue. It is the common injury to the reversionary rights which entitles the reversioners to sue. Apart, therefore, from the question whether the next presumable heir is the legal representative of the deceased presumptive reversioner, there remains the outstanding fact of identity of interest on the part of the general body of reversioners, near and remote, to get rid of the transaction which they regard as destructive of their; rights." The Privy Council held, towards the close of the judgment, that under Rule 1, Order 1, Civil P. C, the contingent reversioners may be joined as plaintiffs in the presumptive reversioners suit, that the right to relief on the part of the reversioners exists severally in order of succession, and arises out of one and the same transaction impugned as invalid and not binding against them as a body, and that the dispute involves a common question of law, viz., the validity of the act challenged as incompetently done. If the contingent reversioners may be joined as plaintiffs in the presumptive reversioners action, the Privy Council held, it follows that on his death the next presumable reversioner is entitled to continue the suit, and that since the right to sue survived in the appeal filed by Venkatanarayana on the latters death, Kuppusami Pillay was entitled to the order prayed for. 11. It is apparent that the decision in Venkatanarayanas case, AIR 1915 PC 124 negatives the conclusion of the Additional District Judge that Tunkhothang who was brought on the record on the death of Yamkhotinthang and was allowed to defend the suit is the only person entitled to file the appeal. It is plain that Yamkhotinthang was sued against not merely in his individual capacity but also as a representative of his co-villagers. It is correct that when Yamkhotinthang died it was his son Tungkhothang who was brought on the record as the defendant by an order dated 7th September, 1964 passed at the instance of the plaintiff Punchungleng. It is plain that Yamkhotinthang was sued against not merely in his individual capacity but also as a representative of his co-villagers. It is correct that when Yamkhotinthang died it was his son Tungkhothang who was brought on the record as the defendant by an order dated 7th September, 1964 passed at the instance of the plaintiff Punchungleng. It is equally clear that Tunkhothang failed to take any steps for assailing the decree passed by the trial Court in favour of punchungleng respecting properties mentioned in Schedule B. In such circumstances, Henjagam, the brother of the deceased Yamkhotinthang and the acting Chief of the village, had the necessary authority to file an appeal if only because his individual right to the properties involved was in jeopardy and none was out to assail the decree of trial Court, One can easily conceive circumstances in which a defeated party in a representative suit may exhibit indifference in the matter of agitating the correctness of the decree passed against him and those whom he represented. As an instance, such a party may let period of limitation for appeal run out by sheer impassivity or nonchalance born merely of laches or even collusion between him and winner in the litigation. In such a situation it would be too much to contend that none other than the person who was on record eo nomine is entitled to file an appeal against the adverse decree. If that were the true position of law, quite often it may tantamount to putting premium on laches or even betrayal of faith. Such a situation cannot be brooked by Courts of law whose function, nay obligation, is to circumvent inequity and to clear procedural hurdles, when law does not interdict that course, with the ultimate aim of doing real and substantial justice in causes entrusted to them for adjudication. It is common place to say that the Persons represented by the party on record must be presumed to have committed the conduct or defence of the suit to him in the firm belief that he would fight for their rights with due diligence, requisite vigilance and in a perfectly bona fide manner. It is common place to say that the Persons represented by the party on record must be presumed to have committed the conduct or defence of the suit to him in the firm belief that he would fight for their rights with due diligence, requisite vigilance and in a perfectly bona fide manner. If, for one reason or another, such a person fails to come up to the expectation of the persons whom he happened to represent, one or more out of the latter would be well within their rights to take the matter in appeal though it may be that they have to seek permission of the Appellate Court for the purpose. Therefore, both on principle and authority I see no merit in the contention that Henjagam could not have filed the appeal when Tungkhothang, who had been brought on the record as a defendant on the death of his father Yamkhotinthang, had failed to challenge the decree respecting Schedule B properties. I may appropriately invite attention at this stage to sub-section(2) of S.107 of the Code which enjoins, subject of course to conditions and limitations as may be prescribed, that the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of the suits instituted therein. On the authority of this statutory provision it would be perfectly legitimate for the Appellate Court to permit anyone of the persons represented in the trial Court to file an appeal against the decree passed by that Court, if the person originally named as a representative had failed to discharge his obligations in the manner expected of him as such representative. The persons claiming the right of appeal, it may be emphasised, is constructively already a party to the suit though the conduct of the suit was in the hands of another to whom leave had been given under Rule 8 of Order 1, and as such he can continue or defend the same, as the case may be, after the person named under Rule 8 had died. In view of this, state of law, I see no difficulty in holding that the Additional District Judge went wrong in dismissing Appeal No.19 of 1966 or the finding that Henjagam had no right to file the same. 12. In view of this, state of law, I see no difficulty in holding that the Additional District Judge went wrong in dismissing Appeal No.19 of 1966 or the finding that Henjagam had no right to file the same. 12. I am equally clear that the application of Henjagam for substitution of his name as appellant by Tunkhathang or by the addition of the latter as a coappellant with him had also been wrongly rejected. Sub-rule (1) of Rule 10 of Order 1 of the Code provides that where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been insiituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substitutad or added as plaintiff upon such terms as the Court thinks just. This sub-rule when read with sub-section (2) of S.107 of the Code would authorise the Appellate Court to exercise the powers mentioned therein respecting an appeal. At the worst it may be said that the Appeal No.19 of 1966 had been filed in the name of a wrong person as appellant, or that it was doubtful whether it had been filed in the name of the right appellant. In either case it was perfectly legitimate for the Appellate Court to determine whether the appeal had been instituted: in the name of Henjagam through a bona fide mistake and whether it was necessary that the proper appellant should be substituted vice Henjagam or added as Co-appellant with the latter for the determination of the real matter in dispute, and if the reply to these queries was in the affirmative the Appellate Court could have brought Tungkhothang on the record in any of the two manners prayed for by Heniagam. The conclusion chat emerges in consequence is that the application dated 13th November 1968 of Henjagam had been thrown out without legal justification. By dismissing that application, the Additional District Judge failed to exercise jurisdiction that vested in him, and as such the revision filed by Henjagam falls within the ambit of Section 115 of the Code. 13. The conclusion chat emerges in consequence is that the application dated 13th November 1968 of Henjagam had been thrown out without legal justification. By dismissing that application, the Additional District Judge failed to exercise jurisdiction that vested in him, and as such the revision filed by Henjagam falls within the ambit of Section 115 of the Code. 13. In the result, I allow Revision No.26 of 1969 as also Second Appeal filed by Henjagam, set aside the order dismissing Henjagams application dated 13th of November 1968 and quash the judgment and decree by which his Appeal No.19 of 1966 was dismissed, and remand the application as well as the appeal to the Court of Additional District Judge for deciding both of them in the light of the observations made above Since the points involved in the two case are purely legal and of considerably complexity, I leave the parties to bear their own costs of the revision petition as well as the appeal. Case remanded.