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1987 DIGILAW 871 (ALL)

Samraji v. S. D. officer

1987-09-02

S.K.LAKHTAKIA

body1987
JUDGMENT S.K. Lakhtakia, M. - This is an appeal under Section 331 of the U.P.Z.A. and L.R. Act against the judgment and decree of the Additional Commissioner, Gorakhpur Division Gorakhpur dated 16.2.1984 through which the judgment and decree of S.D.O. Maharajganj, district Gorakhpur dated 17.6.1982 was dismissed. 2. The facts in brief are that respondent Darshan and others brought a suit under Section 229-B of U.P.Z.A. and L.R. Act which was decreed by the trial court. The State and Gaon Sabha did not consent the suit. An appeal was preferred by the appellant Smt. Shyam Raji and Bhagwani before the Commissioner but it was also dismissed by the learned Additional Commissioner, hence this second appeal under Section 331 of the U.P.Z.A. and L.R. Act. 3. Heard the learned counsel for both the parties. Perused the record. 4. The learned counsel for the appellant has given an application that the village has been notified under Section 4 of C.H. Act, hence the appeal be ordered to abate under Section 5 of that Act. 5. The learned counsel for the respondents raised preliminary objection, firstly that the State had not been impleaded as party in the memo of appeal, hence the appeal is liable to be dismissed. Secondly he argued, that the respondent No. 1 Smt. Bhagwani had died and the application for substitution under Order XXII, Rule 4 C.P.C. had not been brought within time, hence the appeal has abated under Order 22, Rule 4, C.P.C. and, therefore, no order can be passed for its abatement under Section 5 of the H.C. Act. 6. As regards the defect about the non-impleadment of the State an application has been moved by the appellants for the impleadment of the State and a notice has been issued to it but it has not filed any objection. Respondents have however filed objection stating that the State cannot be impleaded at this late stage because the appeal as against the State is time-barred and no application for condonation of delay has been moved. 7. The learned counsel for the respondents has placed reliance on a ruling in 1987 R.D. page 91 Board of Revenue in which it has been held that the application for condonation of delay should be moved along with the memo of appeal failing which the appeal is not maintainable. 7. The learned counsel for the respondents has placed reliance on a ruling in 1987 R.D. page 91 Board of Revenue in which it has been held that the application for condonation of delay should be moved along with the memo of appeal failing which the appeal is not maintainable. It was, therefore, argued that since no application for condonation of delay has been filed by the appellant while making a request for impleading the State the appeal stands time-barred and should be dismissed on this ground. 8. In my opinion the ground for the dismissal of the appeal on the point of limitation is available only to that party which is sought to be impleaded after the expiry of limitation. In the instant case State which had been a necessary party in the trial court has now been reduced to the status of a formal party because the appeal has been filed by a co-defendant and the State itself has not come forward to challenge its impleadment and Consequently if the State has no objection to be impleaded, objection cannot be raised by any other party. In such circumstances the absence of the application for condonation of defay is excusable and the State can be impleaded as a respondent even after the period of limitation and the appeal cannot be dismissed on this ground. 9. As regards the question of the impleadment [reliance has been placed upon a ruling reported in Smt. Sudama v. Board of Revenue U.P., 1965 R.D. page 233 at Allahabad in which the Hon'ble High court has held as follows: "All the persons who are necessary parties in a suit cannot necessarily be necessary parties to an appeal unless the statute makes it necessary. The suit having been decreed only in favour of Ahmad Yar Khan, in my opinion, the State of U.P. and the Gaon Sabha were not necessary parties in appeal arising out of the ejectment suit against the petitioners." 10. The aforesaid observation of the Hon'ble High Court clearly lays down that though the State was a necessary party in the suit but it became only a formal one because the suit had been decreed in favour of the plaintiff and that no relief had been claimed in the appeal against the State. The only relief claimed by the appellants was for the dismissal of the suit of the plaintiff. The only relief claimed by the appellants was for the dismissal of the suit of the plaintiff. In such view of the matter as held by the Hon'ble High Court the State becomes a formal party and not a necessary one, hence by exercising the powers under Order 41, Rule 20, C.P.C. It can be allowed to be impleaded as a respondent at this stage in 1 order to meet the ends of Justice. 11. The learned counsel for the respondents have placed reliance on a ruling reported in Kadhora v. Mangua, 1973 R.D. page 57 in which a different view has been expressed but in my opinion the view expressed in this ruling cannot over-ride the law laid down in the aforesaid ruling 1965 R.D. page 233 (H.C.). Accordingly the application of the appellant for the impleadment of the State is worthy of being allowed and the State is permitted to be impleaded as a respondent. 12. As regards the abatement of the appeal under Order 22, Rule 4, C.P.C. it has been urged on behalf of the respondent that the application for substitution has not been made within time, hence the appeal stands abated under that provision. I do not find any force in this argument because an application for substitution of the legal representative of Smt. Bhagwani was moved within limitation on 3.11.1983 by the appellant and her heir Jagaran Prasad was sought to be substituted. Now a second application was again moved by the appellant on 20.3.1986 stating that Jagran Prasad is not the only one son of Bhagwani but she has left 3 sons Baijnath, Hari Das and Hariram also who may also be substituted as heirs. It is actually this application which is said to be time barred by the respondents. In my opinion the filing of the first application dated 5.11.85 which was within time was a sufficient compliance of the provisions of Order 22, Rule 4, C.P.C. and the appeal could proceed even on the substitution of only one of the sons of the deceased party. If any other son or legal representative of the deceased party was left out he could easily be impleaded later on because their non-impleadment would have at most amounted to non-joinder of a party and the defect could be cured later on after investigation. If any other son or legal representative of the deceased party was left out he could easily be impleaded later on because their non-impleadment would have at most amounted to non-joinder of a party and the defect could be cured later on after investigation. In such circumstances the subsequent application of the appellant about the impleadment of the remaining 3 sons of the deceased Smt. Bhagwani cannot be thrown as being barred by Order 22, Rule 4, C.P.C. The argument of the learned Counsel on this point is also rejected and the application for substitution dated 20.3.1986 and 5.1 1.1985 both are allowed and the heirs of deceased Smt. Bhagwani are allowed to be substituted in her place. 13. There is sufficient evidence on record to prove that the village has been notified for consolidation operation under Section 4 of the C.H. Act. This appeal and the suit, therefore, stands abated under Section 5 (2) of the U.P.C.H. Act.