RAMNARAYAN JWALA PRASAD Vs. TULSI RAM PARAS RAM

JUDGEMENT

(1.) THE point agitated in this revision concerns interpretation of Rule 20 of Order 41 Civil Procedure Code. The appellate Court having rejected prayer made thereunder for amending the memo of appeal by adding defendant, Banwari, as party respondent in the appeal, the unsuccessful appellant is before me with the grievance that his application has been rejected arbitrarily.

(2.) SHRI B. G. Apte, learned counsel for the non-petitioner submits that he has no objection to the matter being remitted to the Court below for reconsideration of the application. That is welcomed and the gesture is indeed commendable. But the question still is, the Court below must be apprised of the scope and extent of the relevant provision so that in rendering the decision afresh it does not misdirect itself and necessitate a further revision of the decision. Shri J. P. Sharma, who appears for the petitioner-appellant has made a wholesome and short submission that the sole ground on which the application was rejected was the question of limitation, which was decided against him. It is his forceful submission that the Court below proceeded to apply sub-rule (2) without directing its attention to the provisions of sub-rule (1) of Rule 20 of order 41 Civil Procedure Code and in doing so it committed a jurisdictional error. I have no hesitation to accept this submission for the simple reason that on the sole ground that the application having been filed after expiry of period of limitation for appeal, the application was rejected.

(3.) SHRI J. P. Sharma, has drawn my attention to the averments made in the application in question wherein cogent grounds were stated for belated filing of the application as also for the default, which the counsel who filed the application owned. The application in question has been produced before me and is read out to me and is placed on record. I wonder how the trial Court could over-look the averments which vocally suggest that the defendant's name in the memo of appeal came to be deleted due to inadvertence of the counsel, for his owned default. There is no discussion either of the reason for the belated application or of the ground on which the application was made under Rule 20, of Order 41 Civil Procedure Code for adding defendant-Banwari. as party respondent in the appeal. It is true that the power exercisable under sub-rule (1)of Rule 20 is discretionary but the discretion has to be used judicially and all facts and circumstances on which the power is invoked should enter the consideration of the court in rendering the decision thereon.