MOTI Vs. GIRRAJ

JUDGEMENT

(1.) Moti Lal appellant had brought a suit for possession and the grant of a permanent injunction in the court of the Sub -Divisional Officer, Sawai Madhopur in respect of Khasra numbers 671, 672 and 673 in village Surwal, against Girraj, Dhanna and three sons of Dhanna, namely, Kalyan, Arjun and Kanhaiya. The suit was dismissed by the trial court. The appellant filed his first appeal in the court of the Additional Commissioner, Jaipur, which was also rejected and the order of the trial court upheld. The appellant next preferred a second appeal in this Board on 4 -1 -1961. In the name of second appeal, the respondents who are cited are Girraj, Arjun son of Dhanna, Kanhaiya son of Dhanna, Kalyan son of Dhanna, and Harnarayan son of Sukha. The name of Har Narain was subsequently struck off by the order of the court. On 11 -12 -61 the respondents raised the objection that Dhanna had not been impleaded as a respondent in second appeal. Thereafter, the appellant submitted an application on 4 -1 -1962 for impleading Dhanna and for the condonation of the delay in doing so under sec. 5 of the Indian Limitation Act. It was stated in this application that the name of Dhanna had been omitted from the name of appeal presented in this Board by what was described as a typing mistake on the part of the clerk of the counsel, and that this mistake was detected only on 11 -12 -1961. Subsequently the appellant brought another application for impleading the legal representatives of Dhanna who had in the meantime died. At this stage, we are only called upon to decide whether the application for impleading Dhanna made by the appellant on 4 -1 -1962 should be granted.

(2.) The learned counsel for the appellant has urged that the omission to implead Dhanna within the period of limitation arose because the certified copy of the judgment of the first appellate court given to the appellant did not indicate the name of Dhanna as a party. His subsidiary argument is that the omission was due to a typing error on the part of his clerk, and that the party should not suffer because of it. He has relied on three rulings of High Courts. The first is a Single Bench decision of the Lahore High Court reported as A. I. R. 1934 Lahore 402(2). The facts of that case were that the attested copy of the judgment under appeal showed the names of only two plaintiffs to the exclusion of the third plaintiff, whereas the copy of the decree sheet gave the names of all the plaintiffs. On these facts it was ruled that the omission to implead one of the plaintiffs in appeal had been occasioned by negligence on the part of the officers of the court, and as such the third plaintiff was allowed to be impleaded even though the period of limitation had expired. In the present case before us, the title of the judgment of the Additional Commissioner shows Motilal as the appellant and "Girraj son of Gainda and others" as the respondents. In the decree sheet, however, the names of all the defendants including Dhanna have been shown as respondents. Thus the facts of the present case are different from the facts of the case before the Lahore High Court. In the present case the judgment of the Additional Commissioner clearly indicated that there were other persons besides Girraj in the array of respondents, and the names of the respondents were mentioned in detail in the decree sheet. The appellant before us was able to cite besides Girraj, the three sons of Dhanna and another person Harnarain who was not a party to the suit in the trial court, but omitted to cite Dhanna. This omission cannot be ascribed to the title of the judgment of the Additional Commissioner but to the negligence of the appellant who correctly cited four respondents and incorrectly cited one Harnarain, but omitted to cite Dhanna. If the title of the judgment of the Additional Commissioner was vague, the appellant had to refer to the decree sheet where Dhannas name was specifically included, and if he did not do so or having done so made a mistake, the blame lies with him and him alone. The next case is A. I. R. 1929 Madras, 343. In that case the appellant had left out one person in the memorandum of appeal owing to similarity of names in the array of the parties. This was held to be a bona fide mistake which was allowed to be corrected. The facts of that case are easily distinguishable from the facts of the case before us. The third case relied upon by the appellant is A. I. R. 1955 Pepsu 62, in which the aforesaid Lahore and Madras cases have also been discussed. In that case the appellant had failed to implead one Ishar Singh. It was found that in the copy of the judgment of lower court only three plaintiffs were named and Ishar Singh was not among them. As a matter of fact, there were numerous plaintiffs in that case, and there were 17 others besides Ishar Singh whose names were not mentioned in the copy of the judgment of the lower court. All the same, the appellant cited these 17 plaintiffs as respondents, but he failed to cite Ishar Singh because there was another Ishar Singh in the array of plaintiffs, and he acted under the impression that all the plaintiffs had been impleaded. The Pepsu High Court held that this was a bona fide error occasioned by the identity of names in the array of plaintiffs and the mistake was condoned. The facts of that case are thus not on all fours with the case before us.

(3.) The learned counsel for the appellant has also invoked a ruling of a Division Bench of this Board in the case of Senia versus Shrimati Dhanpa (Appeal No 9/ 1962 of Jaipur) to which one of us was a party. In that case the counsel for the respondent had raised the objection that the State had not been impleaded. The counsel for the appellants sought to meet this objection on the plea that the appellants had been misled by the titles of the judgments of the lower courts. But in that case the State was not also mentioned as a party in the decrees given by the lower courts. On these facts it was held by the Division Bench that the omission to cite the State as a party was a bona fide mistake which had its origin in the negligence of the lower courts who had omitted to mention the State as a party in the titles of the decree sheets. Various decisions of the High Courts were discussed in that case including A. I. R. 1957 Madhya Pradesh 17, A. I. R. 1961 Jammu & Kashmir 9, A. I. R. 1959 Punjab 49, and A.I.R. 1927 P.C. 252 The principles that emerge from the ruling of the Division Bench in the case of Sonia versus Shrimati Dhapa are that where the omission to implead a party arises from negligence or inadvertence of the parties it should not be allowed to be made good but where the omission has been occasioned by error on the part of the lower courts in drawing up their orders and decree sheets, a rectification should be allowed. These principles have been firmly enunciated in a ruling cited by the learned counsel for the respondents, namely, A. I. R. 1959 Madhya Pradesh 52. It has been held in that case that it is not every mistake of the counsel or his clerk which entitles the appellant to invoke the provisions of sec. 5 of the Limitation Act. It is not sufficient for the appellant to show that he acted on the advice of a counsel, but the court must be satisfied that the advice was given with due care and attention. The position would be different if it were found that the error was such as might have easily occurred if reasonable care and attention had been exercised by the counsel. In the present case before us we are not at all persuaded that the omission to implead Dhanna proceeded from act of negligence on the part of the lower courts. On the contrary, we are clearly of the opinion that the omission to implead Dhanna along with other respondents was an act of negligence on the part of the counsel. The mistake would not have arisen if the counsel or the clerk or the appellant had acted with due care and attention. When we say this we are not approving the action of the lower courts in not indicating the names of the parties in detail in the titles of the judgments. In fact we deplore it; nevertheless we hold that the omission to implead Dhanna in the present case proceeds from negligence or inadvertence on the part of the appellant or his counsel rather than the manner in which the title of the judgments of the lower courts were drawn. The application made by the appellant on 4 -1 -1962 for impleading Dhanna has therefore no merit and deserves to be rejected.