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2003 DIGILAW 138 (PNJ)

Sunder Lal v. Ram Kumar

2003-01-24

R.L.ANAND

body2003
Judgment R.L.Anand, J. 1. Appellants Sunder Lal and three others, who were defendants in the trial Court, have filed the present appeal and it has been directed against the judgment and decree dated 11.2.1980 passed by learned Addl. District Judge, Narnaul, who dismissed the appeal of the appellants on the technical grounds that the defendants have not arrayed Kishan Lal, defendant No. 5, in whose favour the plaintiffs also claimed a decree, therefore, the appeal of defendants No. 1 to 4 is not legally maintainable and that the name of Kishan Lal could not be allowed to be added at that stage when defendants No. 1 to 4 filed an application for impleading Kishan Lal as a party to the appeal. The reasons of dismissal of the appeal on the technical ground are contained in paras 5 to 9 of the impugned judgment dated 11.2.1980 and are reproduced as under:- "5. Both the applications were taken up together and following issues were framed:- 1. Whether appeal was liable to be dismissed as alleged? OPR 2. Whether Kishan Lal can be impleaded as party at this stage with the help of provisions of Section 5 of the Limitation Act as alleged? OPA The Learned counsel for the respondents did not produce any evidence. On the other hand the appellants produced Dan Singh AW 1 and Sunder Lal AW2. 6. Both the issues are inter-connected and, therefore, both of them are being taken up together. AW1 Dan Singh clerk to Sh. Shashi Bhushan Gupta, Advocate, Rewari who was advocate of the appellants in the trial Court, stated that he applied for copy of the judgment as the appellants wanted to file an appeal against the judgment and decree passed by the trial court. He also stated that the appellants had taken away the copy of the judgment from him to show it to a lawyer at Gurgaon and he gave the copy of the judgment to them. According to him the remaining documents in the envelope including the decree sheet were obtained by the appellants, afterwards. AW2 Sunder Lal appellant stated that he asked Dan Singh Clerk AW1 to hand over copy of the judgment to him as he wanted to show the same to Sh. Vidya Sagar Pandit Advocate, Gurgaon. According to him the remaining documents in the envelope including the decree sheet were obtained by the appellants, afterwards. AW2 Sunder Lal appellant stated that he asked Dan Singh Clerk AW1 to hand over copy of the judgment to him as he wanted to show the same to Sh. Vidya Sagar Pandit Advocate, Gurgaon. He obtained some documents including the copy of the decree sheet from his lawyer at Rewari on return from Gurgaon after about a week. The appeal was drafted by Sh. Vidya Sagar Advocate Gurgaon according to him. The learned counsel for the appellants argued that a perusal of the copy of the judgment on the file of this court would go to show that the name of Kishan Lal deft. No. 5 does not find mention therein. He submitted that the grounds of appeal having been drafted from the copy of the judgment, the omission of the name of Kishan Lal was bona fide. In support of his contention he cited Puran Singh v. Gehal Singh and Ors., (1968)70 P.L.R. 883 wherein when there was omission of a party from the Memorandum of appeal as the name was not found in the judgment and decree by mistake of Court, it was held that the mistake was bona fide and the additional of name of a party was allowed, the learned counsel also cited Notified Area Committee Buria v. Gobind Ram Lachhman Dass and Ors., (1959)61 P.L.R. 326 wherein it was held as under;- "If a party to the original proceedings is not impleaded in appeal on account of a bona fide and honest mistake on the part of the appellant, the Appellant Court has ample powers under order XLI Rule 20, Civil P.C., to allow the mistake to be rectified and the party to be added. Section 107(2) read with Order I, Rule 10 C.P.C. enables the appellant court to add parties in appeals in suitable cases, but this power must be exercised within the period of limitation. Apart from the provisions of Order XLI, Rule 20 the appellate Court has inherent powers to permit parties to be added to appeals in suitable cases and the language of Rule 20 of the order XLI is not exclusive or exhaustive so as to deprive the appellate Court of the inherent powers in this respect. Apart from the provisions of Order XLI, Rule 20 the appellate Court has inherent powers to permit parties to be added to appeals in suitable cases and the language of Rule 20 of the order XLI is not exclusive or exhaustive so as to deprive the appellate Court of the inherent powers in this respect. No inflexible rule of interpretation of the words "interested in the result of the appeal", in Order XLI Rule 20, has been given by the Privy Council in AIR 1927 PC 252, and it must be decided on the facts and circumstances of each particular case whether the person sought to be added in that case is one interested in the result of the appeal, The Privy Council case cannot, at any rate, be taken to be an authority for the proposition that a party left out or not impleaded in appeal on account of a bona fide mistake cannot be so impleaded under the inherent powers of the Court, more especially when the error is on the part of the Court or its officials in supplying an erroneous copy either of the decree or of the judgments." 7. The learned counsel for the respondents, on the other hand, argued that the appeal could only be filed against the decree in which the name of Kishan Lal deft. No. 5 appeared and not against the judgment and therefore the mistake in omitting the name of the Kishan in the Memorandum of Appeal could not be said to be bona fide. He also submitted that the explanation of the appellants that Sunder Lal appellants only took copy of the judgment from the lawyer at Rewari is not satisfactory as usually after the decision of the case the whole brief is taken away by a party and not only a copy of judgment. According to the learned counsel PW1 in cross-examination admitted that he had no licence of clerkship and then in the absence of the lawyer at Gurgaon his statement cannot carry any weight. In support of his argument that the mistake cannot be bona fide and the appellants cannot be allowed to implead Kishan Lal at the time for filing the appeal has expired, cited Shangara Singh and Ors. In support of his argument that the mistake cannot be bona fide and the appellants cannot be allowed to implead Kishan Lal at the time for filing the appeal has expired, cited Shangara Singh and Ors. v. Imam Din and Ors., 1940 Lahore 314 wherein it was held that the court is not competent to allow the appellant to implead a person for the first time after the limitation for the appeal has expired. It was also held that the appeal in Section 5 of the limitation Act would mean an appeal that is to be instituted for the first time and not that one that had already been instituted but is amended later on owing to some defect in memorandum of appeal. The learned counsel also cited State of Haryana and Ors. v. Sh. Om Parkash and Ors., 1979 P.L.J. 448 wherein it was held that Order 41 Rule 20 Sub-rule (2) imposed a check on the power of appellate Court to implead any person as a party to appeal, who was a party to the suit and was interested in the result of appeal. It was also held that no respondent can be added after expiry of limitation for appeal unless the court for reasons to be recorded allows that to be done. It was further held that where there was failure to implead some of the defendants as respondents and the limitation for filing appeal expired long before the plea was that omission was inadvertent and because of bona fide mistake as their names did not find mention in the title of the judgment, it was held that the omission was not valid as in the decree sheet names of all the defendants who were respondents in the appeal were mentioned in detail and the person who drafted Memo of Appeal did not consult the decree sheet to find out names of other respondents and therefore omission to implead the person as respondents was the result of sheer negligence and not a bona fide mistake. The learned counsel submitted that when the omission was not bona fide, the appeal was liable to be dismissed for want of necessary party to the appeal and in support of his contention he cited Sh. Surat Singh (dead) and Ors. The learned counsel submitted that when the omission was not bona fide, the appeal was liable to be dismissed for want of necessary party to the appeal and in support of his contention he cited Sh. Surat Singh (dead) and Ors. v. Manohar Lal and Ors., A.I.R. 1971 Supreme Court 240 wherein it was held as under;- "Whether the son of the plaintiff with other persons was brought on record on the death of plaintiff during pendency of appeal before the 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 that he was so impleaded admittedly being within knowledge of appellants, and the appellants failed to show any good ground for not impleading him, the appeal was liable to be dismissed for want of necessary party to the appeal. An application filed on the date of decision to implead him as party-respondents, held being highly belated could not be entertained." 8. After considering the arguments advanced by the learned counsel for the parties and going through the authorities cited by the (sic), I am of the opinion that the contention of the learned counsel for the appellants cannot prevail. It was contended before me that in the copy of decree sheet the name of Kishan Lal deft, No. 5 was mentioned but in the copy of the judgment his name was not mentioned. The explanation of the appellants that only a copy of the judgment was taken to the lawyer at Gurgaon, does not appear to be cogent. Normally the whole brief is taken away. The lawyer at Gurgaon who prepared the memorandum of appeal from the alleged copy of the judgment has not been produced. Dana Singh Clerk AW1 has no licence of Clerkship either from the District Judge, Bhiwani or Gurgaon. Sunder Lal AW2 in cross-examination stated that his Advocate Sh. O.P. Sanghi presented the appeal in the Court of Senior Judge, Narnaul but a perusal of the appeal file would go to show that the appeal was presented in that court on 27.1.1975 by Sh. S.K. Sanghi Advocate. Sunder Lal AW2 in cross-examination stated that his Advocate Sh. O.P. Sanghi presented the appeal in the Court of Senior Judge, Narnaul but a perusal of the appeal file would go to show that the appeal was presented in that court on 27.1.1975 by Sh. S.K. Sanghi Advocate. No cogent reason is forthcoming as to why Sunder Lal Appellant took away the copy of the judgment only and why the other documents including the decree sheet was left with the Advocate at Rewari for collection after a week. The authority of Puran Singh v. Gehal Singh, (1968)70 PLR 883 cited by the learned counsel for the appellants would not apply to the facts of this case as in that case there was omission of name both in the copies of judgment and decree but in the case in hand there is omission of name only in the copy of the judgment. The principle laid down in the Full Bench authority of Notified Area Committee Baira v. Gobind Ram Lacchman Das, (1959)61 P.L.R. 326 (F.B.) could not be doubted by the learned counsel for the respondents. The facts of the case cited in State of Haryana v. Om Parkash, 1979 P.L.J. 448 appear to be similar to the facts in this case as in that case also there was omission of name in the judgment and not in the decree sheet. In view of that authority and in view of the evidence discussed above the omission of the name of Kishan Lal in the memo of appeal, would not appear to be due to bona fide mistake. 9. The learned counsel for the appellants further argued that no decree was passed in favour of Kishan Lal by the trial court and, therefore, he was not a necessary party. The contention cannot be said to carry any force. A perusal of the plaint would go to show that the plaintiffs alleged that they and Kishan Lal defendant No. 5 were owners in possession. In the prayer clause, a decree was prayed in favour of the plaintiffs and defendant No. 5. A perusal of the judgment and decree passed by the trial court would go to show that the suit of the plaintiffs was partly decreed against the defendants No. 1 to 4. It is not mentioned therein that the decree was only being passed in favour of the plaintiffs. A perusal of the judgment and decree passed by the trial court would go to show that the suit of the plaintiffs was partly decreed against the defendants No. 1 to 4. It is not mentioned therein that the decree was only being passed in favour of the plaintiffs. In view of that it cannot be said that the trial court passed the decree only in favour of the plaintiffs. When according to the plaintiffs, Kishan Lal defendant No. 5 was also owner in possession alongwith them, it cannot be said that he was not a necessary party." 2. There were three plaintiffs in the trial court, namely, Jug Lal, Ram Chander and Khem Chand. They filed a suit for possession and permanent injunction against Sunder Lal, Mange Ram, Mahabir, Nihal Singh by adding Kishan Lal as defendant No. 5 as a proforma. Notice of the suit was given and the suit was contested by defendants No. 1 to 4 and the learned trial Court framed the following issues;- "1. Whether the plaintiffs are the owners of the property in dispute? OPP 2. Whether the suit is properly valued for purposes of court fee and jurisdiction? OPP 3. Relief. 3. It may be mentioned here that the learned trial court did not frame any issue whether the plaintiffs and defendant No. 5 are the owners of the property in dispute. Meaning thereby that the learned trial court was adjudicating the rights of the plaintiffs No. 1 to 3 vis-a-vis defendants No. 1 to 4. Be that as it may, after a full length trial the learned sub Judge 1st Class, Rewari partly decreed the suit of the plaintiffs for possession of the area measuring 2\karam in the north and one karam in the south as shown in red colour in the site plan Ex. PW9/B by demolition of the constructions raised thereon by defendant No. 1 to 4. The suit of the plaintiffs was also decreed for permanent injunction restraining defendants No. 1 to 4 from interfering with the rights of the plaintiffs in any manner over the area which has been found belonging to the plaintiffs, as mentioned above. Again there was no finding given by the learned Sub Judge 1st Class, Rewari that this suit has been decreed for the benefits of the plaintiffs as well as defendant No. 5. Again there was no finding given by the learned Sub Judge 1st Class, Rewari that this suit has been decreed for the benefits of the plaintiffs as well as defendant No. 5. We all know hat the decree is to follow the judgment in terms of he operative portion of the judgment but by virtue of provisions of Order 20 Rule 6 PC., the names of the parties to the suit are supposed to be incorporated in the decree, when the trial court framed the decree on the basis of the judgment dated 17.12.1974, in the list of defendants the name of Kishan Lal also figured. But in the operative portion of the decree it was mentioned that the suit of the plaintiffs stood partly decreed for possession as referred to above against defendants No. 1 to 4. In the operative portion of the decree the name of defendant No. 5 did not figure, but, however, it figured in the title of the parties of the decree. The defendants filed the first appeal before the Court of District Judge, but the name of Kishan Lal was not incorporated as a proforma respondent. When the appeal came up for hearing the respondents Ram Chand and Khem Chand submitted an application dated 13.10.1979 for dismissing the appeal alleging that Kishan Lal, proforma defendant No. 5, who was a party in the suit and was alleged to be owner in possession of the land in suit alongwith the plaintiffs, has not been made a party in the appeal and he being necessary party the appeal was liable to be dismissed. The appellants filed reply dated 7.11.1979 admitting that Kishan Lal was a party in the suit but alleged tat he was neither the owner in possession of the suit property nor any decree was passed by the trial court in his favour. It was also alleged that as the name of Kishan Lal did not appear in the copy of the judgment, therefore, his name could not be shown in the memorandum of appeal by a bona fide mistake. It was also alleged that as the name of Kishan Lal did not appear in the copy of the judgment, therefore, his name could not be shown in the memorandum of appeal by a bona fide mistake. On the same day the appellants submitted an application under Section 5 of the Limitation Act read with Order 31 Rule 20, Order 1 Rule 10 and Section 151 CPC praying that the name of Kishan Lal, defendant No. 5, might be allowed to be added in the appeal alleging that the lower court had passed the decree only in favour of the respondents shown in the memorandum of appeal as his name did not appear in the copy of the judgment by a bona fide mistake. The application was contested by the opposite party and it was alleged that defendant No. 5 was owner in possession and the appeal being against the decree in which the name of Kishan Lal was mentioned, the mistake of the appellants was not bona fide. The appellants came to know of their mistake on 13.10.1:979 and they filed the application on 7.11.1979 after 25 days which would go to show that they were careless and were not entitled to the benefit of provisions of Section 5 of the Limitation Act. On both these applications the court framed the following issues;- "1. Whether appeal was liable to be dismissed as alleged? OPR 2. Whether Kishan Lal can be impleaded as party at this stage with the help of provisions of Section 5 of the Limitation Act as alleged? OPA" 4. After recording the evidence the learned trial Court vide impugned judgment dated 11.2.1980 came to the conclusion that the name of Kishan Lal could not be allowed to be added at that stage and, therefore, the appeal was liable to be dismissed. Resultantly, both the issues were decided against the appellants. Aggrieved by the decision, the present regular second appeal. 5. Before I proceed further with the discussion, I may also make a mention that defendant No. 5 did not contest the suit in spite of service. He did not file any written statement endorsing the claim of the plaintiffs. After giving appearance he became absent. 6. Aggrieved by the decision, the present regular second appeal. 5. Before I proceed further with the discussion, I may also make a mention that defendant No. 5 did not contest the suit in spite of service. He did not file any written statement endorsing the claim of the plaintiffs. After giving appearance he became absent. 6. The learned counsel appearing on behalf of the appellants submitted that the learned trial court never decreed the suit in favour of Kishan Lal though the plaintiffs categorically made a relief and averments in the plaint that the decree be passed in their favour jointly with defendant No. 5 Kishan Lal, but the learned trial court only decreed the suit in favour of the plaintiffs and not in favour of defendants No.5. Therefore, there was a bona fide mistake, if any, in not impleading Kishan Lal as a party to the first appeal. Mr. Jain further submitted that at any rate it was not necessary for the appellants to implead Kishan Lal as party in the appeal because no relief was granted either in the shape of declaration that Kishan Lal was co-onwer of the properly and in these circumstances the learned first Appellate Court was not justified in dismissing the appeal on technical ground. 7. On the contrary, the learned counsel appearing on behalf of the respondents submitted that in the decree sheet framed by the first appellate court the name of Kishan La! figure and in these circumstances it was obligatory on the part of the appellants to implead Kishan Lal as co-respondent with the plaintiffs but it has not been done. The mistake was not bona fide. The appellants came to know of their mistake only on 13.10.1979. Then they submitted an application on 7.11.1979 under Section 5 of the Limitation Act read with Order 41 Rule 20, Order 1 Rule 10 and Section 151 CPC and, therefore, the appeal was technically bad and has been rightly dismissed by the first Appellate Court. The learned counsel for the respondents relied upon V.P.R.V. Chockalingam Chett v. Seethia Ache and Ors., A.I.R. 1927 Privy Council 252, Ch. Surat Singh (dead) and Ors. v. Manohar Lal and Ors., A.I.R. 1971 SC 240, Paiacherla Anandu and Anr. v. Mallipudi Acharyuia and Anr., A.I.R. 1958 Andhra Pradesh 743, Bhojraj Krishnaro and Anr. v. Darsu and Ors., A.I.R. 1959 Madhya Pradesh 52, Kartar Singh and Ors. Surat Singh (dead) and Ors. v. Manohar Lal and Ors., A.I.R. 1971 SC 240, Paiacherla Anandu and Anr. v. Mallipudi Acharyuia and Anr., A.I.R. 1958 Andhra Pradesh 743, Bhojraj Krishnaro and Anr. v. Darsu and Ors., A.I.R. 1959 Madhya Pradesh 52, Kartar Singh and Ors. v. Waryam Singh and Ors., (1938)40 P.L.R. 6 and The New India Assurance Co. Ltd, Chandigarh v. Smt. Charanjit Kaur and Ors., A.I.R. 1989 P&H 264. 8. I have gone through the citations relied upon by the learned counsel for the respondents. In my opinion, the only judgment which requires to be considered in detail in the light of the given circumstances of the present appeal is State of Haryana and Ors. v. Sh. Om Parkash and Ors., 1979 P.L.J. 448 and it has to be answered by me whether the respondents can take the advantage of this judgment or not. At the cost of repetition, I may say that in the judgment of the trial Court there is not reference at lal that the suit of the plaintiffs has been decreed jointly in their favour as well as in favour of defendant No. 5. So much so, in the judgment of the trial court in the heading of the judgment the name of defendant No. 5 does not figure. The suit of the plaintiffs was partly decreed and as per the provisions of Order 20 CPC the decree is to follow the judgment. In the operative portion of the decree also there is no reference that the suit of the plaintiffs has been decreed for the benefit of defendant No. 5 though in the prayer clause of the plaint there was a specific averment with regard to the claim of the relief in favour of defendant No. 5. It is a settled principle of law that when a relief has been prayed for and the same has not been granted, it shall be presumed that the said relief has been expressly or impliedly declined. As in the judgment no relief was granted to defendant No. 5 Kishan Lal, therefore, it was not obligatory on the part of the defendants to implead Kishan Lal as co-respondent. As in the judgment no relief was granted to defendant No. 5 Kishan Lal, therefore, it was not obligatory on the part of the defendants to implead Kishan Lal as co-respondent. Of course, in the decree sheet which was prepared in pursuance of the judgment and in the memorandum of parties the name of Kishan Lal figures but his name figures because of the provisions of Order 20 Rule 6 CPC which specifically says that the framing the decree, the contents of decree must incorporate the name of all the parties to the suit itself. When Kishan Lal did not contest the suit and when he was proceeded ex parte and when no relief was granted in his favour by the trial Court, the defendants could always take into their heads that Kishan Lat was neither a necessary nor a formal party. The defendants could always take into their head that qua Kishan Lal the relief claimed by the plaintiffs has been declined. At any rate, it gives a sufficient cause to the defendants to make an application on 7.11.1979, just after 25 days of the filing of the application by the plaintiffs on 13.10.1979 that let the first Appellate Court may exercise its powers under Section 5 of the Limitation Act, under Order 41 Rule 20, Under Order 1 Rule 10 and the inherent powers. Order 41 Rule 20 CPC lays down that where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whom 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. According to Sub-section (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 at it thinks fit. 9. According to Sub-section (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 at it thinks fit. 9. The reading of Order 40 Rule 20(1) would show that this power even can be exercised by the Appellate Court if the Court comes to the conclusion that a person, who is interested in the result of the appeal, has not been made as a party before it. In the present case the conduct of Kishan Lal was that he was never interested to see his interest before the trial court because he even did not care to file the written statement or a consenting written statement for the benefit of the plaintiffs. Even assuming for the sake of arguments that the interest of Kishan Lal was involved in the property, still the power is there with the Appellate Court to add such person who has been impleaded as a party in the Appellate Court even after the expiry of limitation, but the only condition is that the Court should record the reasons. In the present case the reasons are very obvious. We all know that in the muffsils a lawyer on going through the reasons of judgment draft an appeal, if for any reason he has not cared to see and examine the memorandum of parties and the decree-sheet, it is not a negligence, but it is an inadvertent omission and at any rate a bona fide mistake. Had in the decree-sheet it been mentioned by the trial court that the decree formulated by it is for the benefit of the plaintiffs and defendant No. 5 also, in such a situation it could be contemplated that defendant No. 5 was negligent as he did not even care to read the contents of the decree which follows the judgment and we all know that an appeal is maintainable against a decree and not against a judgment. In these circumstances, the counsel for the respondents cannot take the benefit of the provisions of State of Haryana and Ors. v. Sh. Om Parkash and Ors. (supra). In the cited case the omission was there to implead a person as respondent in the second appeal and in that background the said judgment was delivered. 10. In these circumstances, the counsel for the respondents cannot take the benefit of the provisions of State of Haryana and Ors. v. Sh. Om Parkash and Ors. (supra). In the cited case the omission was there to implead a person as respondent in the second appeal and in that background the said judgment was delivered. 10. In the light of my above discussion, I reverse the findings of the learned first Appellate Court on issue No. 1 and 2 and decide both the issues in favour of the appellants. In my considered opinion the application made by respondents for the dismissal of the first appeal ought to have been dismissed by the learned first Appellate Court and it should also have allowed the application under Section 5 of the Limitation Act read with under Order 41 Rule 20, Order 1 Rule 10 and 151 CPC the inherent powers are always there for the advancement of justice. When a mistake has been done even by the learned trial court when it did not incorporate the name of defendant No. 5 in the judgment, for that mistake the litigant should not suffer for technical reasons. 11. Resultantly, the appeal is allowed and the impugned judgment and decree dated 11.2.1980 passed by the learned Add. District Judge, Narnaul are hereby set aside and the case is remanded back to the said Court with the directions to re-admit the appeal to its original number and decide the same within six months from the receipt of the records of this case, after giving notice to both the parties. 12. The counsel for the parties are also directed to appear before the learned Addl. District Judge, Narnaul on 17.2.2003. The Registry is directed to send the records of the trial court to the first Appellate Court forthwith.