JAWAN SINGH Vs. TH GANPAT SINGH

JUDGEMENT

(1.) THIS is an appeal against an order of the Additional Commissioner, Jodhpur, dated 15. 9. 54 rejecting the preliminary objection raised by the appellants who were the respondents in the appeal pending before him. The appellants objected to the maintainability of this appeal before the lower appellate court on the ground that Sujan Singh was not impleaded in appeal and the decree passed in his favour by the trial court would remain in fact, the hearing of the present appeal may lead to two inconsistent decrees and hence the appeal should be rejected. The lower appellate court rejected this contention and hence this appeal.

(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The suit was originally filed against a number of defendants and as a result of the trial, the original court dismissed it Sujan Singh was one of the defendants when the decree of the trial court was drawn up. The plaintiffs went up in appeal before the Additional Commissioner, Jodhpur but did not implead one of the defendants Sujan Singh as a respondent in that appeal. The learned counsel for the appellants has cited a number of rulings on the point in support of his contention,

(3.) ON behalf of the respondents, A. I. R. 1940 Patna 671 has been cited. In that case the appellant, sued for rent of a house occupied by the defendants on a monthly rent of Rs. 10/ -. The defendants remained in occupation of the house inspite of the notice to quit. The suit was for recovery of ten months arrears of rent and for mesne profits from the date of the determination of the tenancy. ON 30th April, 1937, a petition of compromise was filed. By this agreement, the defendants undertook to vacate the house on 15th May and to pay Rs. 84/-to the plaintiffs by 5th of May, in settlement of the plaintiff's claim. It was also agreed that if this amount was not paid by the due date, the plaintiffs would have a decree for the full amount claimed. The house was vacated on 15th May, as agreed. The sum of Rs. 84/- was not paid on the stipulated date Among the parties was a minor plaintiff and three minor defendants. The guardians of these minors had not been permitted by the court to enter into the compromise on behalf of their wards. ON 5th May defendant 1 applied to the court to discharge the guardian ad litem of the minor defendants and to be appointed in his place and to be permitted to compromise the suit on behalf of the minor defendants. The court directed this application to be heard on 10th May, which was also the date fixed for considering the compromise petition. No orders were passed on 10th May but the defendants were permitted on that date to deposit Rs. 84; -. ON 27 May, the court directed the compromise to be recorded and as the time was the essence of the contract and as the agreed money had not been paid on 5th May, the plaintiffs were given a decree for the full amount claimed The defendants appealed to the District Judge. He was of the opinion that the compromise was not for the benefit of the minor defendants and time was not of the essence of the contract and the plaintiff's suit was therefore dismissed. The plaintiffs went up in appeal before the High Court without including the minor defendants. A preliminary objection was taken that the appeal has abated. It was held that as the plaintiffs are satisfied with a decree against the major defendants there is no bar to their obtaining such relief. It appears that the fact that the trial court had not permitted the guardian of the minor defendants to enter into compromise by the 5th of May which was the date fixed for the payment of the stipulated sum and that no permission had been given to the minor plaintiff, were considered and on that basis the compromise was held voidable against all parties other than the minors and the major defendants were not permitted to escape the liability which they undertook.