1. This application is filed by the appellant — applicant on 11-10-2011 in a pending Civil 2nd Appeal (C2A), wherein he has prayed for grant of permission to include one Shri Mohammad Shafi Hafiz S/O Late Mohamad Sultan Hafiz R/O Sicop Road, Bijbehara, Anantnag as respondent No.5 in the memo of Appeal with further prayer that the delay, which has occasioned in seeking inclusion of the said person as respondent in the appeal, may also be condoned. 2. This application was filed when the C2A was being heard to find out as to whether any substantive question of law would arise for consideration and for consequential admission of the appeal. 3. On notice issued, respondents, non-applicants, have filed objections to the application. 4. Before adverting to the submissions made at the bar by the learned counsel for the parties, it is deemed appropriate to give brief resume of the facts of the case. 5. The appellant institu ted Civil Original Suit in the Court of learned Sub Judge, Bijbehara against five persons which included Shri Mohammad Shafi Hafiz, who is now sought to be impleaded as party respondent in the C2A, seeking declaration, partition and possession of the suit property. The appellant — plaintiff pleaded that his father, namely, Shri Abdul Khaliq Hafiz owned land measuring 2 kanals 6 marlas covered by survey No. 654, 13 marlas survey No. 562, 4 kanals 19 marlas survey No. 656,4 kanals 1 marla survey No. 660,2 kanals 5 marlas survey No. 655, 1 kanal 1 marla survey No. 053 situated at Jablipora, Tehsil Bijbehara District Anantnag. It is also pleaded in the plaint that the appellant's father died leaving behind the appellant, Rahim, Salim, Aziz, Ismail and one Sultan. It is also pleaded that Sultan died leaving behind Gowhar and Mohammad Shafi as his sons. The learned trial Judge framed as many as ten issues. Issues 1 to 3 were treated as preliminary issues and vide judgement dated 14-06-2007 dismissed the Suit under Order 7 rule 11 of Code of Civil Procedure (CPC) and proviso to Order 1 rule 9 CPC. Being aggrieved of the decree and judgement, the appellant filed Civil 1st Appeal (CIA) before the learned Principal District Judge, Anantnag, who dismissed the appeal vide order dated 26-04-2011. Being aggrieved of the decree and judgement, the appellant filed Civil 1st Appeal (CIA) before the learned Principal District Judge, Anantnag, who dismissed the appeal vide order dated 26-04-2011. It is in this backdrop that the C2A has been filed, in which Shri Mohammad Shafi Hafiz has not been arrayed as party respondent. When the Appeal was being considered by the Court, objection was raised by the learned counsel for the respondents about the maintainability of the Appeal and sought its dismissal by submitting that Shri Mohammad ShafLHafiz, defendant No.5 in the original Suit, having not been impleaded as party respondent in the C2A, same is not, thus, properly constituted. Faced with the situation, this application is filed by the appellant. 6. Mr. G.A.Lone, learned counsel for the appellant, submitted that Shri Mohammad Shafi Hafiz was impleaded as defendant in the original Suit and was also impleaded as respondent in the CIA. He further submitted that while drafting C2A, the name of Shri Mohammad Shafi Hafiz, who is sought to be included/impleaded as party respondent No.5, has been, inadvertently and by accidental slip, omitted from being reflected in the array of respondents. Learned counsel further submitted that the error is only clerical one which requires to be corrected so as to advance cause of justice. He also submitted that this error surfaced during hearing of the Appeal on 29-09-2011 and after the defect in the frame of the Appeal was pointed out by the learned counsel for the respondents, immediate steps were taken to seek inclusion/impleadment of Shri Mohammad Shafi Hafiz as respondent No.5 in C2A. Attention of the Court was drawn by Mr. Lone to Section 107 of CPC and it was submitted that the said provision provides that the Appellate Court shall have the same powers and shall perform as nearly as may be, the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of Suits instituted before it. Learned counsel referred to this provision of law only to bring home his point that a necessary party can be ordered to be added by the Court suo moto as well in terms of sub rule 2 rule 10 of order 1 CPC. Learned counsel referred to this provision of law only to bring home his point that a necessary party can be ordered to be added by the Court suo moto as well in terms of sub rule 2 rule 10 of order 1 CPC. Learned counsel also referred to Order 41 rule 20 CPC and submitted that the Court has the power to direct for impleading a person as respondent, who appears to the Court, to be interested in the result of the appeal. Learned counsel further submitted that sub rule 2 of rule 20 of order 41 CPC was inserted by Act XI of 1983 with effect from 15-08-1983 and this sub rule provide that Court has the power to add a person as party respondent even after expiry of period of limitation for filing appeal but for that, Court has to record reasons. Learned counsel submitted that this Court has inherent power as also the power conferred upon it by the Statute to implead Shri Mohammad Shafi Hafiz as respondent No.5 in the array of respondents in C2A. Mr. Lone referred to and relied upon the judgements reported in AIR 1971 SC 240 , AIR 1961 J&K 9 , AIR 1983 J&K 29 ,1991 KLJ 310, AIR 1992 Kerala 390, AIR 1941 FC 16 and AIR 1922 PC 269 and submitted that in the interests of justice and in order to decide the case on its merits rather than being thrown out on a mere technical ground, the application be allowed and Shri Mohammad Shafi Hafiz be ordered to be imp leaded/included as respondent No.5 in the array of respondents in C2A. 7. Mr. M.A.Qayoom, learned counsel for the respondents, submitted, as is also stated in the objections, that when the Appeal came up for hearing on 29-09-2011, objection was raised about its maintainability and prayer was made for dismissing the same on the ground that Shri Mohammad Shafi Hafiz has not been arrayed as respondent in C2A. He also submitted that after this fatal defect was highlighted during the course of arguments, learned counsel for the appellant sought time to take steps for seeking inclusion of Shri Mohammad Shafi Hafiz as respondent in the Appeal. He also submitted that after this fatal defect was highlighted during the course of arguments, learned counsel for the appellant sought time to take steps for seeking inclusion of Shri Mohammad Shafi Hafiz as respondent in the Appeal. He also submitted that at the time the application was filed, the period for filing the Appeal against Shri Mohammad Shafi Hafiz had expired and the decree/judgement of the'trial Court and First Appellate Court had become final to the extent of Shri Mohammad Shafi Hafiz. He also submitted that the position of law is that if any person, who is aggrieved of judgement/decree/order, fails to array a necessary party as respondent, the judgement/decree/order becomes final and in such eventuality, neither application for permission to include/implead him as respondent can be filed nor can lie be ordered to be arrayed as respondent in the Appeal, as, in the wisdom of learned counsel, that would tantamount to reopening of the issue, which has attained finality. He also submitted that the appellant has not stated any ground, much less a valid one, for allowing the application for impleadment. It is also submitted that the grounds urged in the application are not supported by any reason and no explanation is given as to how, by accidental slip, Shri Mohammad Shafi Hafiz was omitted from being impleaded as party respondent No.5 in the C2A. He also submitted that the error committed, in the facts and circumstances of the case/cannot be said to be a clerical one, which would require to be corrected. It was also submitted that the appellant has deliberately not impleaded Shri Mohammad Shafi Hafiz as party respondent in C2A. Mr. Qayoom also submitted that a valuable right has accrued to Shri Mohammad Shafi Hafiz and submitted that at this belated stage, he cannot be ordered to be impleaded as party respondent in the Appeal. Learned counsel, in support of his submissions, referred to and relied upon judgements reported in AIR 1944 Lahore 76 (FB), AIR 1958 AP 743 (FB), AIR 1971 Kerala 90 (FB), AIR 1927 PC 252, AIR 1971 SC 240 , AIR 2002 SC 732 , AIR 1962 SC 89 and AIR 1993 SC 1202 . Learned counsel further submitted that the Appeal being not properly constituted, the application filed by the appellant cannot be entertained as the Appeal itself would require to be dismissed. Learned counsel further submitted that the Appeal being not properly constituted, the application filed by the appellant cannot be entertained as the Appeal itself would require to be dismissed. He, accordingly, prayed for dismissal of the application. 8. Before dealing with the submissions made at the bar by learned counsel for the parties, it is deemed appropriate to take note of Section 107, Order 1 rule 10 and Order 41 rule 20 of the CPC : "107. Powers of Appellate Court. (1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power- (a) to determine as case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. 2. Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. Order 1 Rule 10 : Suit in name of wrong plaintiff. (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties- 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. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where defendant added, plaint to be amended- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Limitation Act, section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. Order 41 Rule 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 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." 9. The fundamental' and primary duty of the Law Courts is to administer justice, in accordance with the laws, to the parties, who are before it in a pending Us. The substantive laws confer rights on the parties to file proceedings and procedural laws are enacted for the benefit of the Courts so as to enable them to transact their business and conduct proceedings in most fair and reasonable manner. The procedural laws are enacted to inform the litigating parties that proceedings of case will be conducted in the defined manner. The procedural laws are, thus, meant to advance the cause of justice. The procedural laws cannot be permitted to thwart the process of justice and cannot be a reason of causing miscarriage of justice. The Courts' primary function and fundamental duty is to hear and decide the cases in accordance with the laws occupying the field. The procedural laws are, thus, meant to advance the cause of justice. The procedural laws cannot be permitted to thwart the process of justice and cannot be a reason of causing miscarriage of justice. The Courts' primary function and fundamental duty is to hear and decide the cases in accordance with the laws occupying the field. Since the Courts have to decide the cases and meet out justice to the parties, all earnest efforts are to be made that justice does not suffer miscarriage and collapse because of procedural pitfalls. 10. The Hon'ble Supreme Court in case Ch. Surat Singh (dead) reported in AIR 1971 SC 240 , ruled that an application filed, on the day of decision, to implead a person as party respondent being highly belated, could not be entertained under Order 41 rule 20. This judgement is cited to show that the application under Order 41 rule 20 can be filed and can be allowed also if the facts of the case so warrant. The Division Bench of this Court in case Shyam Lal and others v. State and others reported in AIR 1961 J&K 9 , ruled that a party can be ordered to be imploaded as respondent under Order 41 rule 20 even after the period of limitation for preferring Appeal has expired. The Division Bench of this Court further held that the 1 ligh Court has ample power under section 151 to add a respondent to the Appeal even after expiry of period of limitation prescribed for filing the Appeal against him, if in peculiar circumstance of the case before it, it deems fit to do so. The Division Bench distinguished the judgement reported in AIR 1927 PC 252. In case titled Shiv Ram reported in KLJ 1991 310, the Division Bench of this Court, while considering the provisions of Order 41 rule 20 and section 107 CPC, held that the Court has the power to implead a parly in the Appeal even suo moto, but such power cannot be exercised in favour of a party who is guilty of extreme neglect. The Division Bench of Kerala High Court in case reported in AIR 1992 Kerala 390 has held that once a parly has been omitted to be impleaded due to a bona fide mistake, the Appellate Court has the power to implead such party if it is necessary to decide the cause on merits. It is also held that Order 41 rule 20 is not exhaustive. In a case reported in AIR 1941 Federal Court 16, it has been held that Order 41 rule 20 is not exclusive or exhaustive so as to deprive the Court of its inherent powers which it possess and which it may exercise in special circumstances and which have been saved by section 151. In AIR 1922 PC 269, it has been ruled that one of the first and highest duties of all the Courts is to "take care that the act of Court does not injury any of the suitors and when the expression "act of the Court" is used, it does not mean merely the act of the primary Court or of any Intermediary Court of Appeal but the act of the Courts as a whole from the lowest Court which has the jurisdiction over the matter upto the highest Court which would finally dispose of the case." 11. The judgements cited at the bar by learned counsel for the respondents-non applicants provide as under : a) In AIR 1993 SC 1202 , it has been held that the suits decreed by a common judgement, partly decreeing plaintiffs suit as well as other suit filed by the defendant, then failure to file appeal against one suit precludes the Court from proceeding with the appeal filed against the other suit. b) In AIR 1962 SC 89 , the Court, in a case of acquisition of land, which was jointly owned by two brothers, the appeal filed abated against one respondent, it was held that the appeal could not proceed against the other. c) In AIR 2002 SC 732 , the Hon'ble Supreme Court held that the decisions of the Privy Council are binding on the High Courts so long as the Supreme Court does not overrule it. c) In AIR 2002 SC 732 , the Hon'ble Supreme Court held that the decisions of the Privy Council are binding on the High Courts so long as the Supreme Court does not overrule it. d) In AIR 1927 PC 252, it has been held that a defendant against whom a suit has been dismissed and against whom the right to appeal has become barred, cannot be deemed to be interested in the result of the appeal filed by the plaintiff against the other defendant and cannot be ordered to be impleaded as party respondent after the period of limitation. e) In AIR 1971 Kerala 90 FB, it has been hek1 that although the Appellate Court has power under Order 41 rule 20 CPC to add a person as party respondent but such power can be exercised only if the party is interested in result of the appeal. It was further held that the defendant against whom suit has been dismissed cannot be added as party respondent in the appeal after right of appeal against such person has become barred by limitation. f) In AIR 1958 Andhra Pradesh 743 FB, it was held that after lapse of the prescribed period in filing of the appeal, the party defendant against whom the suit was dismissed and against whom no appeal was filed, it was not open to the Appellate Court to implead him as respondent under order 41 rule 20 CPC after expiry of period of limitation, as such party had acquired a valuable right under the decree and, thus, will not fall under the purview of person interested in the appeal within the meaning of the aforementioned provision of law. The Full Bench further held that" order 41 rule 20 empowers the Appellate Court to implead a party to the suit as a supplemental respondent only if he is interested in the result of the appeal, i.e. if he will be affected by the decree or order to be passed in the appeal and not otherwise, and that the interest must be determined with reference to the judgement when he is not brought on record." g) In AIR 1944 Lahore 76, the Full Bench of the said Court held that the defendants, who were originally parties to the suit and were not impleaded as respondents in the appeal till the period of limitation expired, in such circumstance, Order 41 rule 20 cannot be invoked. It was also held that it was in the discretion of the Court to add any person as party to the appeal. h) In AIR 1971 SC 240 , it was held that when highly belated application is filed and it was apparent that the appellant did not act with due diligence, the application under order 41 rule 20 for impleading apers on as party respondent could not be a 11 owed in such circumstance. 12. Admittedly, Shri Mohammad Shafi Hafiz, who was defendant No.5 in the Civil Original Suit and respondent No.5 in CIA, has not been impleaded as party respondent in C2A. It is also a fact that when once this issue was raised by learned counsel for the respondents, immediately thereafter the present application was filed by the appellant-applicant praying therein for inclusion/impleadment of Shri Mohammad Shafi Hafiz as party respondent No.5 in the C2A. The ground taken is that because of a clerical/typographical mistake and accidental slip, Shri Mohammad Shafi Hafiz has not been included/impleaded as party respondent in the cause title of the C2A. The contention of the learned counsel for the respondents-non applicants that at the time the application seeking impleadment of Shri Mohammad Shafi Hafiz was filed, the appeal had become time barred against the said person, is correct. However, the contention that Shri Mohammad Shafi Hafiz cannot be impleaded as party respondent, in the facts and circumstances of this case, cannot be accepted. The appellant-applicant had instituted the Civil Original Suit against five persons and after dismissal of the suit, appeal was also filed against five persons. However, the contention that Shri Mohammad Shafi Hafiz cannot be impleaded as party respondent, in the facts and circumstances of this case, cannot be accepted. The appellant-applicant had instituted the Civil Original Suit against five persons and after dismissal of the suit, appeal was also filed against five persons. Being aggrieved of the decree and judgement of the Appellate Court, C2A was also filed. These events do show that the appellant-applicant has been diligently prosecuting his cause right from the Court of original jurisdiction to this Court. In these circumstances, it cannot be ascribed to him that he, deliberately and intentionally, chose not to file the appeal against Shri Mohammad Shafi Hafiz. In the suit the appellant-applicant prayed for issuance of decree not only against the present respondents but even against Shri Mohammad Shafi Hafiz. The application, in such circumstances, cannot be said to be not bonafide one. 13. The judgements referred to at the bar by learned counsel for the respondents are based on the provision of law, viz. Order 41 rule 20, which was on the Statute Book prior to the amendment of 1976 in the Central Code and 1983 in the State Code. The party, against whom no appeal was filed and against whom the decree has attained finality, after the period of limitation for filing the appeal was over, could be said to be not interested in the result of the appeal and, thus, could not be ordered to be party respondent under Order 41 rule 20. The law laid down by the Courts in various judgements, reference whereof is made hereinabove, is based on the unamended provision of Order 41 rule 20. The provision of law as it was on the Statute Book prior to the amendment, would, in some situations, cause grave injustice to a litigating party. The law laid down by the Courts in various judgements, reference whereof is made hereinabove, is based on the unamended provision of Order 41 rule 20. The provision of law as it was on the Statute Book prior to the amendment, would, in some situations, cause grave injustice to a litigating party. The legislators, in order to ensure that justice is meted out, added sub rule 2 to rule 20 by the Act XI of 1983 w.e.f. 15-08-2983, whereunder the Court is empowered to add a person as party respondent after expiry of period of limitation for appeal and if the Court has to add a person as party respondent after the expiry of period of limitation for appeal, it is required to record reasons and has to pass the order on such terms as to costs as it thinks fit and the Court has been given the power to implead a person as party respondent even after the period of limitation for filing appeal is over. The judgements referred to by learned counsel for the respondents-non applicants, in view of the amendment of the Order 41 rule 20 and for the reason of insertion of sub rule 2 to rule 20, cannot be said to deprive the Court of its power to add a party to the proceedings, as the law laid down in those judgements is on the basis of unamended provision of Order 41 rule 20. Even otherwise in order to do substantial justice it becomes a duty of the Court, which is constituted for administering justice to the parties, to ensure that on technical ground, the justice does not become casualty and party is not thrown out of the Court on this ground alone. Besides, statutory powers, the Court is possessed of inherent powers to add a party to the pending proceedings. 14. The frame and constitution of the appeal is governed by Order 41 CPC. The appeal has been filed in accordance with the Order 41 and is, thus, properly constituted and by non-impleadment of one of the defendants as respondent in C2A, it cannot be said that appeal is not properly constituted, more particularly, when omission to implead is neither deliberate nor intentional. 15. The appeal has been filed in accordance with the Order 41 and is, thus, properly constituted and by non-impleadment of one of the defendants as respondent in C2A, it cannot be said that appeal is not properly constituted, more particularly, when omission to implead is neither deliberate nor intentional. 15. In Nathu Ram's case ( AIR 1962 SC 89 ), on its own facts, it was held that appeal against another respondent cannot proceed as the same had abated against one of the respondents because of his death. In that case, appeal was filed against an award before the High Court of Punjab. In the present case, the suit has been dismissed under Order 7 rule 11 CPC. It has not been decided on merits and since steps have been taken for seeking impleadment of Shri Mohammad Shafi Hafiz as respondent No.5 in the C2A, the judgement in Nathu Ram's case would not be applicable to the facts of this case. In case reported in AIR 1993 SC 1202 , the suits were decreed by common judgement. Appeal was filed by one of the parties but no appeal was filed by another party who had filed another suit. It was held that finality of the finding recorded in the connected suit due to non filing of appeal precludes the Court from proceeding in appeal in other suit. This is not the case of filing two suits which were decided by a common judgement. The judgement does not help the respondents. The law laid down by the Supreme Court that the Privy Council decision is binding on the High Courts is an accepted proposition of law. In AIR 1927 PC 252, the Privy Council was considering the provision of unamended Order 41 rule 20. It was held that as the right to file appeal had become time barred, the party against whom appeal was not filed, cannot be ordered to be impleaded as party respondent in the appeal. The other judgements cited at the bar by learned counsel for the respondents pertain to the time period when the provision of Order 41 rule 20 was not amended. 16. In the facts of this case, Shri Mohammad Shafi Hafiz is interested in the result of the appeal, in as much as, he may be affected by the order/decree/judgement passed by the Court. 16. In the facts of this case, Shri Mohammad Shafi Hafiz is interested in the result of the appeal, in as much as, he may be affected by the order/decree/judgement passed by the Court. It is an accepted principle of law that the appeal is continuation of the original proceedings. In appropriate cases, the Court can direct impleading a person as party in its discretion even suo moto. The Court's power to administer justice cannot be shackled hand and foot by procedural laws. 17. The explanation given by the appellant-applicant, that it was because of clerical/typographical mistake and accidental slip that Shri Mohammad Shafi Hafiz was not included/impleaded as respondent in the cause title of the appeal has to be accepted to be correct, in as much as, the appellant-applicant would not deliberately and intentionally incur disqualification of prosecuting the appeal even against other respondents. The Court also accepts the plea that it was for the first time noticed during the arguments of the case when objections was raised by learned counsel for the respondents that the appeal is liable to be dismissed for non-impleadment of Shri Mohammad Shafi Hafiz as party respondent and immediately thereafter present application was filed. The plea taken constitutes sufficient ground in law for condoning delay in filing application for implead-ment/inclusion. 18. For the above stated reasons this application is disposed of in the following manner: a) Delay in filing the application under Order 41 rule 20 is condoned subject to payment of costs to the tune of Rs.2000/- to be paid to Mohammad Shafi Hafiz within period of four weeks; b) Shri Mohammad Shafi Hafiz S/O Late Mohamad Sultan Hafiz R/O Sicop Road, Bijbehara, Anantnag is ordered to be included/impleaded as party respondent No.5 in the Civil 2nd Appeal No.04/2011; c) Appellant-applicant to file fresh memo of par ties including the newly added party, i.e. Shri Mohammad Shafi Hafiz as respondent No.5 within a period of one week from today. d) Notice to the impleade d party at the expense of the applicant-appellant. List the Civil 2nd Appeal after service is complete. 19. CMP 486/2011 is disposed of.