STATE OF HARYANA Vs. OM PARKASH

JUDGEMENT

(1.) This second appeal against the judgment and decree of the learned Additional District Judge, Narnaul, dated April 20, 1978, when came up for hearing for the first time on November 27, 1978, a preliminary objection was raised by the learned counsel for the respondents that the lower appellate Court has passed the decree in favour of the respondents and six others persons, Chuna etc. who were respondents in the first appellate Court. The said persons having not been impleaded as respondents in the present appeal, the decree in their favour has become final rendering this appeal incompetent. To meet this objection, an application was moved by the appellants on December 1, 1978, under Order 41, rule 20 read with Section 151 of the Code of Civil Procedure for permission to implead the said persons as parties to the appeal which has been strenuously opposed by the respondents.

(2.) Prior to the insertion of sub-rule (2) by the Civil Procedure Code (Amendment) Act, 1976, the appellate Court had wide discretion and unfettered powers under rule 20 of Order 41 to implead any person, a party to the appeal, who was a party to the suit and was interested in the result of the appeal. Even then, a Full Bench of this Court in Notified Area Committee Buria V. Gobind Ram Lachhman Dass and others, 1959 AIR(P&H) 277 held that 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 appellate court had ample powers under Order 41, rule 20 of allow the mistake to be rectified and the party to be added. The mistake, therefore, could be allowed to be rectified and a party added if the appellant could show that the said person was not impleaded on account of bona fide and honest mistake. After the insertion of the said sub-rule (2), a check has been imposed on the said powers of the appellate Court and no respondent can now be added after the expiry of the period of limitation for appeal unless, the Court, for reasons to be recorded, allows that to be done. Although there is nothing in the sub-rule which could indicate as to what would be the reasons on which the Court would be competent, to allow the respondent to be added after the expiry of the period of limitation but the reasons obviously have to be only those which could show that there was some justification on the part of the appellant not to have impleaded such a person as respondent to the appeal. Some guidance can be taken from the proviso to sub-section (1) of Section 21 which also provides for such a situation but respecting a suit. It provides that the Court may allow a new plaintiff or defendant to be added where omission was the result of a mistake made in good faith. Consequently, before the appellant can invoke powers of this Court under Order 41, rule 20 he has to show that he failed to implead the concerned person as respondent because of a bona fide and honest mistake or due to a mistake made in good faith. The mistake can be said to be bona fide or made in good faith only if the same has occurred in spite of due care and caution on the part of the appellant. When judged in the light of these principles, I find that no case has been made out to allow the appellants to add the said persons as respondents to the appeal as the limitation for filing the appeal had expired long before on August 2, 1978.

(3.) The only reason given in paragraph No. 4 of the application for not impleading defendants Nos. 5 to 10 as respondents to the appeal was that their names were not mentioned in the title of the judgment of the first appellate Court. In support of this averment, the affidavit of the dealing Assistant has also been filed. On the basis of the said averment, it has been forcefully contended by Mr. A.S. Nehra, learned Additional Advocate General, that the names of the said persons were omitted from the Memo of Parties inadvertently and because of a bona fide mistake. Reliance for this contention was placed on the Full Bench case of this Court referred to above and a Single Bench decision in Puran Singh V. Gehal Singh and others,1968 PunLR 883. In the Full Bench case, the question referred was as to whether a party to the original suit who has not been impleaded in appeal within the period of limitation prescribed for filing the appeal can be added as party thereto either under the provisions of Order 41 rule 20 or of Order 1, rule 10, read with Section 107, or under the inherent powers of the Court saved by Section 151 of the Code of Civil Procedure. During the course of the discussion it was observed at if the party to the original proceedings was not impleaded in the appeal on account of bona fide and honest mistake on the part of the appellant, the appellate Court has ample powers under Order 41, rule 20, to allow the mistake to be rectified and the party to be added. It was, however, not decided as to whether the mistake in that case which had been committed because of the incorrect copy of the judgment wherein the name of the party had been omitted, was a bona fide mistake or not. This case is, therefore, of no help to the appellants.