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2000 DIGILAW 857 (MAD)

BEEBEE JOHN v. SHEIK HUSSAIN

2000-08-28

M.KARPAGAVINAYAGAM

body2000
Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) THIS revision petition has been filed by Beebee John, the petitioner herein seeking to set aside the order of dismissal of the petition filed by the petitioner in l. A. No. 23 of 1999 in Appeal suit No. 7 of 1996 and Villupuram. ( 2 ) THE brief facts are these :-"the petitioner herein filed a suit in o. S. No. 99 of 1995 on the file of the Principal District Munsif. Ulundurpet, claiming the relief in respect of suit items 1 to 6 against the defendants 1 and 2. The suit was decreed in favour of the plaintiff only in respect of items 1,2,5 and 6. It was further held that the first defendant would be entitled to item 3 and the second defendant would be entitled to item 4. Against this decree, the first defendant Sheik hussain filed appeal in A. S. No. 7 of 1996 claiming the rights over items 1,2,5 and 6 and praying for the dismissal of the suit. The plaintiff/petitioner also filed a cross appeal through memorandum of cross objection claiming suit items 3 and 4 making the first defendant as the cross respondent. When the appeal and cross appeal were taken up for disposal, the petitioner filed a petition under Order 1 Rule 10 and Section 151 C. P. C. requesting the court to implead the second defendant as one of the respondents in the cross appeal, as he was not mentioned as a party inadvertently. This was contested by the first defendant, the appellant in A. S. No. 7 of 1996 contending that there cannot be any cross appeal as against the person who is neither an appellant nor a co-respondent in the appeal filed by him. This was contested by the first defendant, the appellant in A. S. No. 7 of 1996 contending that there cannot be any cross appeal as against the person who is neither an appellant nor a co-respondent in the appeal filed by him. After hearing the counsel for the parties, the learned additional District Judge, Villupuram dismissed the petition mainly on the ground that in the appeal filed by the appellant claiming right over the suit items 1,2,5 and 6, there cannot be cross appeal as against the person in whose favour the decree was passed only in respect of item 4 and that the proposed party was not the appellant and the cross appeal would not lie as against the co-respondent and if there is any grievance over the right in respect of item 4, the decree cannot be questioned in cross appeal filed by the plaintiff but only through a separate appeal. Aggrieved by the same, the present civil revision petition has been filed by the petitioner. " ( 3 ) MR. Kannan, the learned counsel for the petitioner, while attacking the impugned order, would submit that the appellate Court having power under Order 41 Rule 33 to pass order even against persons not made parties should have exercised the said power by impleading the proposed party as second respondent, especially when he was second defendant in the suit in order to do complete justice to the case. He would also submit that the decision with regard to title against the appellant though he claimed only some item could not have been decided without reference to the other items and as such, while deciding the same, the proposed party shall be heard, as he is a necessary party. ( 4 ) MR. He would also submit that the decision with regard to title against the appellant though he claimed only some item could not have been decided without reference to the other items and as such, while deciding the same, the proposed party shall be heard, as he is a necessary party. ( 4 ) MR. Balakrishnan, the learned counsel appearing for both the first respondent, the appellant in the Court below and the second respondent, the proposed party, in an attempt to sustain the impugned order, would submit that in addition to the reasonings given by the court below that the petitioner cannot be permitted to seek asylum by virtue of Order 41 rule 33, since it would amount to circumvent the provision of Law of Limitation, in view of the fact that the plaintiff/petitioner having failed to file a regular appeal as against the proposed party in order to overcome the bar on limitation, has now come forward with this petition under order 1 Rule 10 C. P. C. ( 5 ) 1 have heard the counsel for the parties and gone through the order impugned and the various citations referred to by both the counsel. ( 6 ) THE principles relating to above position of law are laid down in these decisions:-(1) Hemamallni v. Swaminathan and 8 Others; (2) Thozhappa Iyengar @ Alagar Iyengar v. P. Ganapathy and 2 others; (3) Savitri Devi v. District Judge; (4) Dhangir v. Madhan Mohan; (5) Subban Pagadal v Subban Pagadal; (6) Delhi Electric Supply Undertaking v. Basanti Devi And Another; (7) Muthuswami Gounder, K. v. Palaniappa Gounder ( 7 ) THE various guidelines laid down in the above decisions would be categorised as follows :-(A) It would be a travesity of justice to hold that a party who is bound by the result of a litigation, though not eo nominee a party to the litigation, shall be denied an opportunity to draw the attention of the court to some step which seeks to prejudice his interests behind his back. In all such cases, it is the plain duty of the court to implead the parties concerned either under order 1, Rule 10, or in exercise of its undoubted, inherent power under Section 151, CPC (B) Section 107 (2), C. P. C confers on an appellate court the same power and directs it to perform, as nearly as may be, the same duties as are conferred on Courts of original jurisdiction. Courts of original jurisdiction have under Order 1, Rule 10 (2), C. P. C. power to order that the name of any person who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved, be added a person would be a necessary party if he ought to have been joined, that is to say, in whose absence no effective decree can be passed at all. He would be a presence party to be impleaded if his presence necessary for an effectua For complete adjudication. " (C) Order 41, Rule 33, C PC. provides an exception under which the power should be exercised with great care and caution. There must be sufficient explanation by the party concerned as to why an appeal was not preferred or a memorandum of cross-objection was not filed. The party should make out that justice of the case requires the exercise of the power under Order41, Rule 33, C. RC. (D) Order 1 Rule 10 C. P. C. enables the court to add any person as a party at any stage of the procecdings if the person whose presence before the court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code. (E) The sweep of the power under rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The words "as the case may require" used in rule 33 of Order 41 have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice. The words "as the case may require" used in rule 33 of Order 41 have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice. The only constraint on the power are these; That the parties before the lower Court should be there before the appellate Court. The question raised must properly arise out of the judgment of the lower Court. (F) The power of the appellate court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The court should not refuse to exercise that discretion on mere technicalities. (G) Order 41, Rule 33, C. P. C. enables the Appellate Court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though (i) the appeal is as to part only of the decree; and (ii) such party or parties may not have filed an appeal No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order. 41, Rule 33, C P. C. Each case must depend upon its own facts. This rule enables the appellate Court to pass any order/ decree which ought to have been passed, even if such decree would be in favour of the parties who have not filed any appeal The power though discretionary, should not be declined to be exercised merely on the ground that the party has not filed any appeal. ( 8 ) IN the light of the above principles, let us now look into the reasonings given by the court below for dismissing the application requesting for impleadment of the proposed party. ( 9 ) ACCORDING to the learned Judge, in the Appeal filed by the first defendant, he claimed right only in respect of items 1,2,5 and 6 and item 4 and as such, there cannot be any cross appeal as against the appellant/first defendant in respect of the item 4 also and the present attempt to implead the proposed party, the second defendant is only to circumvent the law of Limitation having filed a separate appeal against the second defendant. The court below would further elaborately observe by distinguishing the judgment reported in a. I. R. 1988 S. C. 54 (supra) that the facts of the said case would not apply to the present case and as such, the powers under Order 41 rule 33 could not be exercised. ( 10 ) IT is to be noticed that the application filed before the appellate Court was under order 1 Rule 10 and Section 151 C. P. C. ( 11 ) ORDER 1 Rule 10 (2) C. P. C. would provide thus:-"the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. " ( 12 ) SO, while invoking this rule, the Court is called upon to see whether the parties are properly arrayed and if there is any mistake committed by the party in arraying the parties, the said mistake could be rectified. If the court comes to the conclusion that a proposed party is a necessary party to adjudicate upon and settle all the questions involved in the suit, then he shall be made as a necessary party. ( 13 ) THE expression "to settle all questions involved" used in Order 1 Rule 10 (2) is susceptive of liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject-matter of the suit arising not only between the parties to the suit but also the third party whose presence before the court is necessary or proper for an effective and final adjudication. ( 14 ) THE power of the court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is, whether the right of a person may be affected if he is not added as a party. ( 14 ) THE power of the court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is, whether the right of a person may be affected if he is not added as a party. If a person is vitally interested in the litigation and ultimate decree which may be passed in the said litigation vitally affecting his rights, he may apply to be added as a party under this rule. ( 15 ) AS laid down by the Supreme Court, this rule would enable this Court to add any person as a party at any stage of the proceedings even at the appellate stage, if the person whose presence before the court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. ( 16 ) ADMITTEDLY, the Court below has not referred to the legal position as regards the powers vested in the Court under Order 1 Rule 10 C. P. C. It is also well laid proposition that section 107 (2) C. P. C. confers on an appellate court the same power and directs it to perform the same duties as are conferred on courts of original jurisdiction under Order 1, rule 10 (2), C. P. C. in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved. Besides this power, Section 151 C. P. C. also confers inherent power to pass orders to meet the ends of justice. ( 17 ) THE purpose and object of these provisions have not been taken note of while passing the impugned order. The Court below was under the impression that Order 41, Rule 33 would not normally be invoked and should not be invoked in this case when the petitioner has not filed separate appeal as against the second defendant independently within time. ( 18 ) THERE is no dispute in regard to the fact that the plaintiff claimed right in respect of all the suits 1 to 6 as against the first defendant alone initially. ( 18 ) THERE is no dispute in regard to the fact that the plaintiff claimed right in respect of all the suits 1 to 6 as against the first defendant alone initially. It is pointed out during the course of arguments that the second defendant was subsequently impleaded while the suit was pending, since it was brought to the notice by the first defendant that the second defendant is a necessary party, as he has purchased the 4th item. Thus, the second defendant was impleaded though not he was a party at the time of filing of. the suit as second defendant in order to adjudicate upon all the issues effectually and completely. But, the trial court while decreeing the suit, held that the plaintiff would be entitled only in respect of the items other than items 3 and 4 and further held that the first defendant would be entitled to item 3 and the second defendant would be entitled to item 4. But, the second defendant had not filed any appeal, whereas the first defendant alone filed an appeal as against the judgment with regard to the decree in respect of items 1,2,5 and 6. ( 19 ) IT is seen from the ground No. 2 of the grounds of cross appeal filed by the plaintiff that he claimed right in respect of all the suit properties including the items 3 and 4. As a matter of fact, the prayer made in the cross appeal is as follows:-"the Cross Appellant therefore prays that the Honble Court may be pleased to allow the cross appeal and thereby set aside the judgment and decree in respect of suit items 3 and 4. "but unfortunately, the name of the second defendant in whose favour decree was passed in respect of item 4 was not added as a cross respondent. ( 20 ) ACCORDING to the plaintiff/petitioner, the failure to include his name as co-respondent was purely a mistake. The following is the statement in the affidavit sworn to by her-"i state I have filed a cross appeal questioning the decree of the Lower Court in respect of the items 3 and 4 of the suit items. While filing the cross appeal i filed the same as against the respondents only by my inadvertence 1 did not implead the 2nd defendant in the suit. While filing the cross appeal i filed the same as against the respondents only by my inadvertence 1 did not implead the 2nd defendant in the suit. Unfortunately 1 was misled as he did not figure as one of the parties in the appeal though suit item 4 is said to have been purchased orally by him for rs. 2,500/- which is exfacie invalid. I have denied in the Lower Court that the alleged oral sale. The proposed party is the brother of the respondent herein. " ( 21 ) IT is to be pointed out that the counsel who appeared for both the first defendant and the proposed party, the second defendant before the appellate Court would contend that the conditions of Order 41 Rule 33 have not been complied with. This objection has been accepted by the appellate Court while dismissing the petition for impleadment without considering the other factual position and also the legal position, in the light of Order 1 Rule 10 read with Section 151 C. P. C. In my view, this objection is purely technical. ( 22 ) EVEN the powers under Rule 33 is wide enough to determine any question not only between the appellant and the respondent but also between the respondent and correspondent. This power shall be properly exercised in order to determine all questions raised in order to render complete justice between the parties. The Court should not refuse to exercise the said judicial discretion on mere technicalities. ( 23 ) THE facts of this case also would clearly show that the appellate Court shall have to decide the issues in relation to all the items of the suit properties. When there is an adjudication in respect of all the issues relating to all the properties which should be comprehensive, then it shall be necessary for the Court to add the proposed party as a second respondent. When there is an adjudication in respect of all the issues relating to all the properties which should be comprehensive, then it shall be necessary for the Court to add the proposed party as a second respondent. ( 24 ) IN that view of the matter, I am of the opinion that the appellate Court ought to have give opportunity to the petitioner/plaintiff to correct her bona fide mistake while filing the cross appeal by not adding the proposed party as second respondent even though she claimed right in respect of items 3 and 4 by allowing the said application and also be give the opportunity to the second respondent, the proposed party in respect of all the issues including the issue relation to item 4 while disposing of the main appeal. ( 25 ) INthe result, the civil revision petition is allowed. The impugned order is set aside, thereby the proposed party is added as the second respondent in the cross appeal. The appellate Court is directed to hear both the main appeal and cross appeal and consider all the issues that may arise for consideration and decide in accordance with law. Consequently, no order is necessary in C. M. P. No. 17894 of 1999. ( 26 ) BEFORE parting with this case, it is necessary for me to point out one aspect of the matter which is rather disturbing. ( 27 ) IT is seen from the records that in this civil revision petition, notice of motion has been ordered and interim stay till 30. 11. 1999 has been granted by the order dated 28. 10. 1999 by Honble Subramani, J. (as he then was ). It seems, subsequently, the stay was not extended. In order to see the appeal before the appellate Court is not taken up in view of the fact that the interim stay has not been continued, the petitioner filed another application in i. A. No. 44 of 2000 in the same appeal under order 41 Rule 33 read with Section 151 C. P. C. seeking for the same relief of impleadment of the second defendant as second respondent in the appeal even without mentioning about the pendency of the civil revision petition before this Court. Admittedly, the same is pending before the appellate Court. Admittedly, the same is pending before the appellate Court. ( 28) IT is pointed out by the learned counsel for the respondents that the first respondent has filed a counter on 3. 8. 2000 in the above application stating the above facts. Paragraph 10 of the counter is as follows:-"the petitioner wants to procastinate the proceedings by filing one application after the other. The petitioner filed an application in I. A. 23/1999 to implead the same party in the cross-appeal preferred by him, after the appeal and the cross-appeal were argued by the counsel for the respondent and that application was dismissed, after contest, and the petitioner had preferred CRP. 3178/99 and the stay granted on 30. 11. 1999 was not extended further and hence this court posted the case for arguments on 1. 8. 1998 and at this juncture this application is again filed. "the learned counsel for the petitioner would fairly agree that this ought not to have been done by the petitioner. ( 29 ) THIS approach on the part of the petitioner probably on the advice of the counsel appearing in the Court below, is most unfair. This conduct would definitely show that the petitioner wanted to protract the matter by filing one application after the other and consequently, she has abused the process of law. ( 30 ) THIS Court cannot but express its deep agony and displeasure for the conduct of not only the petitioner but also the counsel who appeared for her before the Court below for having given such an advice. The clients approach the Lawyers only to get a proper legal advice hoping that they would get the same from the Lawyers. But, in this case, I am of the clear view that the petitioner has been misled to file such an application I. A. No. 44 of 2000 in July 2000 merely because interim stay granted by the High Court earlier has not been extended. This act is nothing but showing scant respect not only to the Court below but also to the High Court. This conduct, in my view, is highly condemnable. ( 31 ) UNDER those circumstances, it is appropriate to pass an order directing the petitioner to pay costs to both the respondents. Accordingly, the petitioner is directed to pay costs of Rs. 7,500/-each, totally Rs 15,000/-to the respondents within four weeks from today. Petition allowed.