Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 1913 (RAJ)

State v. Umrav Singh

2001-12-11

P.C.TATIA

body2001
Honble TATIA, J.–Heard, learned counsel for the parties on application filed by the appellant under Sec. 151 read with Order 1, Rule 10 CPC. (2). The appellant submitted that due to bona fide mistake the appellant impleaded respondent Sheikh Sharif Ali S/o Mulla Ali Mohammed as respondent No. 2. In the decree-sheet after the name of Sheikh Sharif Ali, the word `BAJAY was mentioned and thereafter, the name of Hakimudeen S/o Mulla Mohammad Hussain was mentioned. While preparing the memo of appeal, the word ``BAJAY could not be noticed. As a matter of fact, since Sheikh Sharif Ali died before the decree was passed in the original suit, the name of Hakimudeen S/o Mulla Mohammad Hussain may be shown in place of Sheikh Sharif Ali as respondent No. 2. Hence, the appellant wrongly impleaded deceased Sheikh Sharif Ali instead of hakimudeen, therefore, he has requested that appellant may be permitted to implead hakimudeen as a party respondent in place of Sheikh Sharif Ali. This application was filed by the appellant on 28.08.2001. (3). The respondent No. 1 filed he reply to the application and submitted that this Court as back as on 19.12.2000 pointed out that there is a defect in array of the parties and also took note of the fact that Shekh Sharif Ali expired in the year 1998 and this fact has been noticed by the office in the month of September, therefore, according to learned counsel for the respondent No. 1, the application deserves to be dismissed only on the ground of such inordinate delay without thee being any application for not taking any steps by the appellant in time. (4). Learned counsel for the respondent, however, submitted that when the appeal against the proposed respondent became barred by time, the respondent now cannot be impleaded and the appeal itself is incompetent and liable for dismissal for want of necessary party. (5). The learned counsel for the respondent relied upon various judgments of the Honble Apex Court. In the judgment of the Honble Apex Court delivered in case of Ram Krishna & Ors vs. Roop Chand Molla & Ors. (1), Honble the Apex Court held that the appeal is liable to be dismissed when original defendants were not impleaded as party in the Special Leave Petition before the Supreme Court by the plaintiff-appellant. In the judgment of the Honble Apex Court delivered in case of Ram Krishna & Ors vs. Roop Chand Molla & Ors. (1), Honble the Apex Court held that the appeal is liable to be dismissed when original defendants were not impleaded as party in the Special Leave Petition before the Supreme Court by the plaintiff-appellant. In this case when application for imploding respondent, who expired after defect was pointed out, was also dismissed by the Honble Apex Court. (6). In the above case the necessary parties were not impleaded at all and, therefore, the Honble Apex Court refused to permit impleading the respondent holding that the appellants committed grave error in not impleading the original defendants as parties. But here in this case, this is not a case of not impleading necessary parties but this is a case of misdescription of a party. Only by misdescription,t he original respondent is being sought to be removed from the array of parties but, at the same time, by seeking impleadment the appellant is seeking addition of the party who is none else but the legal representative of the originally impleaded party in the appeal and the suit. Therefore, the judgment cited by learned counsel for the respondent No.1 has no application to the facts of the present case. Another judgment relied upon by the learned counsel for the appellant is delivered by the Honble Apex Court in Ch. Surat Singh (dead) & Ors. vs. Manohar lal & Ors. (2), wherein the Honble Apex Court dealt with the situation when the necessary party was not impleaded. The Honble Apex Court observed that where son of the plaintiff with other persons was brought on record on the death of the plaintiff during the pendency of the appeal before High Court and the fact that he was represented by a counsel, was clearly shown in the certified copy of the order of the High Court, but he was not impleaded as a party in appeal before Supreme Court, the fact hat he was so impleaded admittedly being within knowledge of appellants and the appellants failed to show any reason for not impleading him then the Honble Apex Court held that the appeal was liable to be dismissed for want of necessary party to the appeal. (7). (7). Here, in this case, the explanation given by the appellant is that in decree-sheet as quoted above, the name of the deceased was clearly mentioned and the deceased was impleaded as party. The word ``BAJAYA at the back of the decree-sheet and that was because of confusion. (8). In the facts of this case, if appears that a name of dead person has been shown in the decree-sheet in the cause title of the decree-sheet itself and the name of the successor is on the back of the decree-sheet, might have caused bone fide confusion in preparing the appeal. In the case cited by learned counsel for the appellant is Surat Singhs case, the Honble Apex Court took note of the fact, that no reason has been shown causing any confusion for impleading the dead person as party. in the above case, Lt. Col. Yadav was a party to the appeal as he was being represented by his counsel was clearly shown in the certified copy of the order of the High Court produced along with memo of appeal. Therefore, this judgment also has no application to the fact of the present case. (9). Another judgment cited by the learned counsel for the appellant is delivered in the State of Gujarat vs. Syed Mohd. Baquir EL Edross (3), wherein the appeal was dismissed as abetted because of the fact that no steps were taken to bring legal representative on record for about more than six months. The judgment cited by the learned counsel for the respondent No. 1 has no application to the fact of this case. (10). Order 1, Rule 10 CPC clearly provides that a party can be impleaded at any stage. This gives description is given to Court suo motu to implead the party which ought to have been joined. The non-joinder of the necessary party is something different than the wrongly impleaded party or misdescription of the party. The rigidity of non-impleading a party may be different than wrongly impleaded party. The question is whether it was a bona fide mistake in describing a party or a deliberate action with ulterior motive to take benefit of the wrong by the appellants themselves or the other party who acquired any right or suffered something which cannot be compensated by cost. (11). The question is whether it was a bona fide mistake in describing a party or a deliberate action with ulterior motive to take benefit of the wrong by the appellants themselves or the other party who acquired any right or suffered something which cannot be compensated by cost. (11). In the facts of the case, it is clear that the respondent No. 1, impleaded as party in the appeal, was originally impleaded in the suit. It is also clear from the certified copy produced alongwith appeal of the decree-sheet that name of the respondent No. 1 Sheikh Sharif Ali is mentioned in the first part of the cause title of the decree-sheet itself and no name of Hakimudeen is given is the cause title but after astrix mark in the back of the certified copy of the decree-sheet name of hakimudeen is mentioned. Therefore, a bare look of document itself it can be prima facie presumed that there might have been some confusion and when the appellant himself says that there was confusion, there is no reason to disbelieve the appellant. It is also relevant to mentioned here that nothing has been pointed out that what benefit the appellant will get by impleading a dead person and by not impleading the successor of the dead person in the appeal. Therefore, I am satisfied that there was bona fide mistake in preparing the appeal by wrongly impleading a dead person instead of dead persons successor. (12). So far as delay is concerned, it is very much clear, because the Court in presence of the learned counsel for the appellant recorded the fact as back as on 19.12.2000 that respondent No.2 Sheikh Sharif Ali is reported to be dead and he died even in the year 1998. The time was sought for taking steps on 19.12.2000 but the appellant has not filed any petition till 28.08.2001. It is also true that reason has not been given for such delay but looking to the fact of the case that the appeal is pending and connected with another appeal S.B. Civil First Appeal No. 198/99 and, therefore, I do not find any reason to dismiss the application only on the ground of delay in filing the application for impleading Hakimudeen as party in place of Sheikh Saraf Ali. (13). (13). Learned counsel for the respondent No. 1 submitted that the appeal No. 198/99 is not a regularly constituted appeal. The permision has not been granted to the appellant of the above S.B. Civil First Appeal No. 198/98. Be that as it may, but the fact is that the appeal filed by the appellant-State has been connected with the above appeal pending hearing for admission in the S.B. Civil First Appeal No. 809/99 of the present appellants alongwith the Appeal No. 198/99 with all objections of the respondent No. 1. The rejection of the application under Order 1, Rule 10 CPC may result failure of justice. Therefore, on the ground of delay. I am not inclined to reject the application under Order 1, Rule 10 CPC but since the application has been filed after such an inordinate delay, therefore, the cost is required to be paid by the appellant to the respondent No. 1. (14). Therefore, application under Order 1, Rule 10 CPC deserves to be allowed and for same is hereby allowed on payment of cost of Rs. 1,000/- by the appellant to the respondent No. 1 as the respondent No. 1 tried to oppose the application. The name of Sheikh Sharif Ali is struck off from the array of the parties and Shri Hakimudeen S/o Mulla Mohd. Hasan Bohra is impleaded as respondent No. 2 in place of Shekh Saraf Ali. Amended cause title has already been filed by the appellant. The application is taken on record and be placed at proper place. (15). The notice was issued on application under Sec. 5 of the Limitation Act by this Court on 29.03.2000. Respondent No. 1, 3 and 4 have already served. Issue notice to the newly added respondent of the application filed under Sec. 5 of the Limitation act. The rule is made reportable within four weeks. (16). Learned counsel for the appellant is directed to file notices & PF in two sets. Upon filing the same, one set be given `Dasti to learned counsel for the appellant to be served by registered post.