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1999 DIGILAW 395 (RAJ)

Hem Raj v. Laxmi Narain

1999-03-23

R.R.YADAV

body1999
Judgment R.R. Yadav, J.-The present second appeal is posted today for disposal of an application moved by the appellants under Order XLI, Sub-rule (3) of Rule 2 and Rule 2-A of the said order read with Section 151, CPC for impleading the names of plaintiffs-Mansukh Lal and Panna Lal, both sons of Shiv Lal r/o Bali Dist. Pali in the array of respondents as respondents No. 4 and 5 but due to typographical error wrongly typed as Respondents Nos. 3 and 4 in the said application. 2. Before proceeding to dispose of the present application on merit, it is observed that relief sought in the present application is not tenable either under Order XLI, Sub-rule (3) of Rule 2 read with Rule 2-A of the said order or under Section 151, CPC. As a matter of fact, there is no existence of Rule 2A of Order XLI in the CP 3. Be that as it may, I take judicial notice of the fact in this regard that to meet such contingency as has arisen in the present second appeal Rule 20 of Order XLI, CPC is to be examined in extenso. 4. After close scrutiny of Rule 20 of Order XLI, CPC it is found that the aforesaid Rule is renumbered by Act No. 104 of 1976 and Sub-rule (2) was inserted in it by said amending Act, which is reproduced hereinbelow for ready reference :--“20. 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 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. .(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.” 5. It is urged by the learned Counsel for the appellants Mr. .(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.” 5. It is urged by the learned Counsel for the appellants Mr. D.R. Bhandari that it is apparent from perusal of the decree sheet that names of Mansukh Lal and Panna Lal are not shown in the decree, due to which at the time of drafting of appeal he could not be able to implead them as respondents in the array of respondents. It is submitted that mistake in not making Mansukh Lal and Panna Lal as respondents Nos. 4 and 5 in the present second appeal, was a bona fide mistake, which crept in the memo of appeal due to non-mentioning of their names in the decreesheet. 6. It is further submitted by the learned Counsel for the appellants that the litigant public cannot be allowed to suffer due to mistake of the Presiding Officer or due to mistake of the officer of the Court. In the present case, the Presiding Officer of the first appellate Court and his officers while preparing and signing the decree-sheet committed serious error in not disclosing the names of Mansukh Lal and Panna Lal in the decree-sheet, therefore, they can be impleaded as respondents Nos. 4 and 5 even after expiry of limitation prescribed for filing the present second appeal. 7. Theaforesaid argument of the learned Counsel for the appellants is vehemently opposed by the learned Counsel Mr. B.R. Mehta appearing on behalf of the respondents on the ground that the decree-sheet was amended on 7-8-1991 and the amendment of the decree-sheet was within the knowledge of the appellants, therefore, the names of Mansukh Lal and Panna Lal cannot be impleaded at this stage in the array of respondents after expiry of limitation prescribed for filing the instant second appeal. It is also submitted by learned Counsel for the respondents Mr. B.R. Mehta that the application moved under Order XLI of Sub-rule (3) of Rule 2 and Rule 2-A of the said order read with Section 151, CPC is not maintain able. 8. It is urged by the learned Counsel for the appellants Mr. It is also submitted by learned Counsel for the respondents Mr. B.R. Mehta that the application moved under Order XLI of Sub-rule (3) of Rule 2 and Rule 2-A of the said order read with Section 151, CPC is not maintain able. 8. It is urged by the learned Counsel for the appellants Mr. D.R. Bhandari in his rejoinder that the present appeal was drafted and filed in the office of this Court on 14-5-1990 on the basis of certified copy of the decree applied by the appellants and copy whereof given to them by the copying department of first appellate Court wherein the names of Mansukh Lal and Panna Lal were not disclosed, therefore, even if the decree was amended on 7-8-1991 and in the amended decree, the names of Mansukh Lal and Panna Lal are disclosed yet rectification of mistake by amending the decree subsequent to filing of the present second appeal will have no effect on the application moved for impleading the names of Mansukh Lal and Panna Lal in the array of respondents. 9. I have given my thoughtful consideration to the rival contentions raised at the Bar. 10. A close scrutiny of Sub-rules (1) and (2) of Rule 20 of Order XLI, CPC quoted hereinabove would indicate that the Court has power even suo motu to adjourn the hearing to a future day to be fixed and direct that any person who was a party to the suit in the Court from whose decree the appeal is preferred and found to be interested in the result of the appeal but who has not been made party to the appeal in the array of respondent be impleaded as respondents provided the factum of non-impleadment of such person comes to its knowledge before expiry of limitation prescribed for filing of such appeal. Sub-rule (2) of Rule 20 of Order XLI, CPC reveals 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 on such terms as to costs as it thinks fit. 11. Sub-rule (2) of Rule 20 of Order XLI, CPC reveals 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 on such terms as to costs as it thinks fit. 11. Aconjoint reading of the aforesaid Sub-rules (1) and (2) of Rule 20 of Order XLI, CPC further reveal 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. It is to be noticed that under Sub-rule (2) of Rule 20 of Order XLI, CPC even after the expiry of the period of limitation, an application can be moved for impleading a person who was a party to the suit in the Court from whose decree, the appeal has been preferred but has not been made party to the appeal provided reasons are found to be sufficient to implead him as respondent is established. 12. Here in the present case, failure of Presiding Officer of first appellate Court and officers of his Court responsible for drawing the decree-sheet in not disclosing the names of Mansukh Lal and Paring Lal in the decree-sheet which resulted in their non-impleadment as respondent in the present second appeal is not fatal. It is borne out from the record that learned Counsel for the appellants has drafted the second appeal on the basis of decree initially prepared by the officers of the first appellate Court and signed by its Presiding Officer which did not disclose the names of Mansukh Lal and Panna Lal, therefore, non-impleadment of the names of Mansukh Lal and Panna Lal in the present second appeal is not fatal and it can be allowed even after expiry of the period of limitation prescribed for filing the present second appeal. The present second appeal was filed in the office of this Court on 14-5-1990 whereas the decree was amended on 7-8-1991 disclosing the names of Mansukh Lal and Panna Lal, therefore, it has no adverse impact in allowing the present application for impleadment. 13. In my considered opinion no litigant “public can be allowed to suffer due to mistake of the Presiding Officer ot the Court or the mistake of its officers. 13. In my considered opinion no litigant “public can be allowed to suffer due to mistake of the Presiding Officer ot the Court or the mistake of its officers. I am of the view that newly inserted provisions of Sub-rule (2) of Rule 20 of Order XLI, CPC make it abundantly clear that the Court has jurisdiction to direct impleadment of a person as respondent in appeal if he was a party in the suit or appeal as the case may be, from whose decree the appeal is preferred, even though period of limitation has expired. The argument of the learned Counsel for the respondents to the effect that once time for an appeal has run out, it is not permissible for the appellants to move an application for impleadment of above named two persons who were indisputably parties before first appellate Court, as respondents in the present second appeal, is not acceptable to me for the reasons discussed hereinabove. 14. In the present case, sufficient cause is established to implead Mansukh Lal and Panna Lal as respondents Nos. 4 and 5, therefore, I allow them to be impleaded as respondents Nos. 4 and 5 in the array of respondents even after the expiry of the period of limitation prescribed for filing the present second appeal against them. The mistake in not making Mansukh Lal and Panna Lal as respondents Nos. 4 and 5 in the array of respondents is held to be a bona fide mistake which crept in the memo of appeal due to mistake of the Presiding Officer of first appellate Court who signed the decree and its officers who prepared the decree-sheet without caring to mention the names of aforesaid two persons in the decree-sheet. 15. Coming to the last submission of learned Counsel for the respondents to the effect that the present application under Sub-rule (3) of Rule 2 of Order XLI and Rule 2-A of the said order read with Section 151, CPC is not maintainable, suffice it to observe that a prayer for impleadment of Mansukh Lal and Panna Lal as respondents Nos. 4 and 5 in the array of respondents cannot be refused merely because incorrect provisions are mentioned in the application for their impleadment. 4 and 5 in the array of respondents cannot be refused merely because incorrect provisions are mentioned in the application for their impleadment. As a result of the aforesaid discussion, the application for impleadment of the names of Mansukh Lal and Panna Lal in the array of respondent as respondents Nos. 4 and 5 to the present second appeal, is hereby allowed. Now the learned Counsel for the appellants is to file fresh amended cause title within three weeks from today. Within the aforesaid period, the learned Counsel for the appellants is to furnish process fee and notices for service on Mansukh Lal and Panna Lal who are newly added party in the array of respondents as respondents Nos. 4 and 5.