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2000 DIGILAW 384 (PAT)

Kapildeo Singh v. Ramraj Singh

2000-03-07

S.N.PATHAK

body2000
Judgment S.N.Pathak, J. 1. This revision is directed against the order dated 1.5.99 passed by the learned Additional District Judge IVth, Aurangabad, in Title Appeal No. 31/93. 2. The relevant facts are that the plaintiff-opposite parties filed Title Partition Suit No. 20 of 1987/40 of 1990, In this suit, preliminary decree was passed, subsequently there was an appeal by the defendant, revisionists. During the pendency of this appeal, there was a petition by the plaintiff-opposite party for addition of one Sharda Devi as party to the appeal. The learned Additional District Judge by the impugned order allowed this petition and he also directed framing of a fresh issue regarding the property as given in Schedule III of the plaint to effect "Whether the property of Schedule 3 is the self-acquired property of Sharda Devi or it was acquired from the joint family fund". It was submitted by the revisionists that similar petition for addition of the party was rejected earlier by order dated 4.6.98 and hence the learned Addl. District Judge was not justified in reviewing this order and, moreover, he has wrongly interpreted Order XLI, Rule 20 of the C.P.C., while allowing the petition of plaintiff-opposite parties. 3. On perusal of the impugned Order, I find that the learned Additional District Judge, of course, referred to a petition of the plaintiff-opposite parties regarding addition of party to the appeal in the order dated 4.6.98 and he stated that the earlier petition for addition of the party was filed under Order VI, Rule 17 of the C.P.C., whereas, it should have been preferred under Order I, Rule 10 and earlier petition was rejected on technical ground that the petition was filed under a wrong provision. Therefore, the learned Additional District Judge held that he had power to review this order and he had also power to add party to the appeal under Order XLI, Rule 20 of the C.P.C. The learned Additional District Judge has further referred to Sec. 107 of the C.P.C. as also Order XLI, Rules 20, 23-A&25, C.P.C. 4. Therefore, the learned Additional District Judge held that he had power to review this order and he had also power to add party to the appeal under Order XLI, Rule 20 of the C.P.C. The learned Additional District Judge has further referred to Sec. 107 of the C.P.C. as also Order XLI, Rules 20, 23-A&25, C.P.C. 4. So far as the applicability of Sec. 107 C.P.C. is concerned, there can be no dispute regarding power of the appellate Court to pass any order under Sec. 107 of the C.P.C. which refers to the power of the appellate Court regarding framing of fresh issue as also regarding remand of a suit to the lower Court and to take additional evidence, etc. So far as the applicability of Order XLI, Rules 25 and 23-A of the C.P.C. is concerned also, there can be no legal dispute regarding powers of the appellate Court. The crucial point comes when the Addl. District Judge passed an order under Order XLI, Rule 20 of the C.P.C. The learned Addl. District Judge has wrongly interpreted this provision by stating that in the appeal any fresh person can be added as a party, if it is necessary to decide the rights of both the parties to the appeal. However, I am sorry to remark that the Additional District Judge misconstrued the provision under Order XLI, Rule 20 of the C.P.C. This provision has specifically mentioned that the appellate Court can implead any person who was a party to the suit and who has not been impleaded in this appeal. The learned Additional District Judge re-ferred to this provision and allowed the addition of Sharda Devi as a party to the appeal. 5. However, of course, the learned Additional District Judge by impleading Sharda Devi under Order XLI, Rule 20 C.P.C. committed a legal error. 6. But, the simple point is whether the addition of Sharda Devi as a party to the appeal was necessary for deciding the issues between the parties and whether addition of Sharda Devi was not at all necessary in deciding the appeal or the decree under appeal and if this impleading of Sharda Devi would cause failure of justice. 7. 6. But, the simple point is whether the addition of Sharda Devi as a party to the appeal was necessary for deciding the issues between the parties and whether addition of Sharda Devi was not at all necessary in deciding the appeal or the decree under appeal and if this impleading of Sharda Devi would cause failure of justice. 7. Order I, Rule 10 of the C.P.C. refers to addition of party to any proceeding before any Court of the law necessary to determine the controversy between the parties and rights and claims of theirs under Order I, Rule 10(2) of C.P.C. a Court can strike out the name of any party from the list of plaintiff or defendant and the Court is also empowered to add any person as plaintiff or defendant which may enable the Court to adjudicate and settle all questions involved in the suit. The appeal is a continuation of a suit and the appellate Court is the. final authority regarding facts in controversy between the parties. So, the appellate Court can add any person as appellant and respondent in the appeal under Order I, Rule 10 of the C.P.C. 8. In the instant appeal and the suit under appeal, the defendants have claimed that Schedule 3 property of the plaint was a self-acquired property of the defendants arid one Kapil Deo Singh had sold this land to various other persons and subsequently, Sharda Devi wife of Kapil Deo Singh had purchased from one Ratan Singh who was vendee from Kapil Deo Singh. So absence of Sharda Devi would have caused prejudice to the plaintiff-opposite parties because Sharda Devi might claim that she being not a party to the appeal and decision passed in the suit or appeal would not be binding upon her. In that view of the matter, if Sharda Devi is added as a party to the appeal for effective and final decision of controversy regarding Schedule 3 property of the suit, I do not think that there was anything illegal or irregular by passing this imptigned order by the Additional District Judge. 9. Taking into consideration the overall circumstances, addition of Sharda Devi as a party to the appeal was not going to cause prejudice to the revisionists nor it would occasion any failure of justice to any of the parties to the appeal. 9. Taking into consideration the overall circumstances, addition of Sharda Devi as a party to the appeal was not going to cause prejudice to the revisionists nor it would occasion any failure of justice to any of the parties to the appeal. Hence, I do not think it necessary to interfere with the impugned order. 10. This revision is accordingly dismissed.