SUBE SINGH AND OTHERS Vs. SULTAN AND OTHERS

JUDGEMENT

(1.) The Plaintiff -Respondents Sultan and others filed a suit for declaration to the effect that they were owners -in -possession of the suit land. The said suit was decreed by the trial court vide its judgment and decree dated 9th November, 1976. An appeal against the said decree was filed by the Defendants (Appellants) on 13th January, 1977. While filing the appeal, the names of the two of the Plaintiffs, viz., No. 4 and 5, could not be shown in memorandum of parties. In spite of that, all the Plaintiffs filed their cross -objections in the appeal. When it was brought to the notice of the Defendants -Appellants that in the appeal they had not impleaded Plaintiffs Nos. 4 and 5 as Respondents, and, therefore, the appeal as such was not competent, they immediately moved an application dated 12th April, 1977. It was stated therein that inadvertently and due to typographical mistakes, Shish Ram and Balwan, sons of Bishana, Plaintiffs Nos. 4 and 5 to the suit in the court from which decree the appeal had been preferred, had not been made contesting Respondents to the appeal It was, therefore, prayed that the directions be given for impleading of the said two Plaintiffs who were brothers of the other Plaintiffs/Respondents. The application was duly verified by the party. It was contested on behalf of the Plaintiffs/Respondents primarily on the basis of the Full Bench decision of the Lahore High Court reported as Labhu Ram v/s. Ram Partap : A. I. R. 1944 Lah. 76., where it was held that once time for an appeal has run out, it is not possible for an Appellant subsequently to implied those Defendants who were not originally impleaded as Respondents in the appeal. It was further held that in a case in which necessary party to an appeal has been omitted, the Court cannot exercise any power vested in it under Order 41, R. 20. Code of Civil Procedure to cover up the omission, and that a Court of Appeal could exercise its powers under Order 41, R. 20 Code of Civil Procedure if limitation has already expired, and also that no question of condoning delay under Sec. 5 of the Indian Limitation Act would arise in such a case. This objection prevailed with the learned District Judge, and he, thus, dismissed the application filed under Order 41, R. 20, C.P.C, and as a consequence dismissed the appeal as well. Dissatisfied with the same, the Defendants have filed this Second Appeal.

(2.) The view taken by the Full Bench of the Lahore High Court in Labhu Ram's case (supra) was not approved by the Full Bench of this. -Court vide Notified Area Committee v/s. Gobind Ram : A. I. R. 1959 P&H 277. It was held in this case that if a party to the original proceedings is not impleaded in appeal on account of bona fide mistake on the part the Appellant, the appellate Court has ample powers under Order 41, R. 20, C.P.C., to allow the mistake to be rectified and the party to be added. It was also held therein that apart from the provisions of Order 41, R. 20, C.P.C, the appellate Court has inherent powers to permit parties to be added to appeals in suitable cases and the language of R. 20 of Order 41 is not exclusive or exhaustive so as to deprive the appellate Court of the inherent powers in this respect. In view of the Full Bench judgment, no meaningful argument could be raised on behalf of the Plaintiffs/Respondents.

(3.) Apart from the above, now in R. 20 of Order 41, Sub -rule (2) was added vide Amendment Act of 1976, reads as under: -