SONIA Vs. DHANPA

JUDGEMENT

(1.) A special preliminary point has to be decided in this case in the circumstances which are briefly set out below.

(2.) A suit for declaration of rights in respect of certain agricultural land was filed in the court of the Assistant Collector Jaipur by the present appellants against the present respondent. Subsequently, the State was joined as another defendant at the instance of the appellants. The suit was decreed by the trial court. The title of the judgment of the trial court does not mention the State as a defendant. Similarly, in the decree given by the trial Court the State has not been mentioned as a party. Aggrieved by the judgment and decree of the trial court Mst. Dhanpa defendant/respondent preferred an appeal before the Additional Commissioner No. 1, Jaipur. The first trial court allowed the appeal and set aside the judgment and decree of the trial court. The order of the first appellate court says that though no appeal has been preferred by the Tehsildar (on behalf of the State) the decree is also set aside against the Tehsilder under the provisions of Order 41 Rule 33 of the Code of Civil Procedure. The decree so drawn up by the learned Additional Commissioner does not mention the State or the Tehsildar as a party though in the order transcribed on the decree sheet says that the plaintiffs shall pay the cost to both the defendants. When this case was taken up for arguments in second appeal before the Board on 7.12.1961, an objection was raised by the counsel for the respondent that the State had not been impleaded. On the same day, the counsel for the appellants submitted an application that the State be impleaded as another respondent. We have heard the arguments on the maintainability of this application.

(3.) The learned counsel for the appellants has urged that the omission to cite the State as a party has occurred in a bona fide manner and that it has originated from the negligence of the lower courts in mentioning the State as a party in the titles of the decree -sheets. His argument is that the present appeal was filed with due care and caution and that as a busy counsel he was misled by the mistake on the part of the lower courts. He therefore pressed that the inherent powers of this court or powers u/O.41, r. 20 of the Code of Civil Procedure may be invoked in his favour. He has cited a number of rulings in support of his prayer. The first is AIR 1957 Madhya Bharat 17 where a Division Bench agreed to add a party on the ground that the mistake of the plaintiff appellant was due to the mistake of the officials of the court. The principle that was followed was that no litigant should be allowed to suffer through the mistake of any official of the court, and further that the court had inherent powers to rectify its own errors. The next is A.I.R. 1961 Jammu & Kashmir 9. It was held in this case that where the omission on the part of the appellants to implead as respondents the legal representatives of the deceased plaintiffs was due to the order in the decree and the judgment which did not show these persons as co -plaintiffs, such persons can be impleaded as respondents under Order 41 Rule 20 of the Code of Civil Procedure even after the period of limitation for preferring an appeal had expired. Another decision relied upon by the learned counsel for the appellants is A.I.R. 1959 Punjab 49 wherein a Division Bench observed that under the law it is the decree that is appealable and that in order to get rid of the decree the only necessary party was the party who figured in the decree, and not also the party who should have been mentioned in the decree. This question also came up before a Full Bench of the same High Court in A.I.R. 1959 Punjab 277. The Full Bench held that if a party to the original proceedings is not impleaded in the appeal on account of the 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. They further observed that under Order 41 Rule 20 the appellate court has inherent powers to permit parties to be added in suitable cases. They also discussed A.I.R. 27 P.C. 252 and said that the Privy Council decision could not 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 judgment.