HARI SINGH Vs. RANG BAHADUR

JUDGEMENT

(1.) THE circumstances that give rise to this second appeal are that Rang Bahadur and Raj Babu sons of Shiv Dayal and Munshilal brought a suit against Hari Singh and Murli in the court of the SDO Behror on 22. 6. 56 for recovery of possession on the ground that the defendants had wrongfully trespassed upon the land in dispute and hence ought to be ejected therefrom. THE trial court after framing necessary issues recorded the evidence of the parties and granted a decree with costs in favour of the plaintiffs on 14. 10. 57. One of the defendants Murli went up in appeal before the Additional Commissioner and in the memorandum of appeal that was filed by him on 17. 10. 57 Rang Bahadur and Hari Singh were impleaded as respondents. Nothing was stated in this memorandum as regards the other two, Raj Babu and Munshilal, in whose favour as well a decree was passed by the trial court. It may be observed here that the copy of the decree issued by the trial court to the appellants contains the names of all the three plaintiffs in the title of the suit. In the copy of the judgment issued by the trial court to the appellant contains the names of all the 3 plaintiffs in the title of the suit. In the copy of the judgment issued by the trial court to the appellant the name of Rang Bahadur alone appears in the title though the first line of the judgment starts with the assertion that the suit was instituted by Rang Bahadur and two others. On 20. 12. 57 application was put up before the lower court by Murli to the effect that as in the judgment of the lower court the name of Rang Bahadur alone appears and as it was known subsequently that Raj Babu and Munshilal were also joint with him as plaintiffs in the suit, permission may be granted to the appellant to join them in the appeal. This application was rejected by the lower appellate court and the appeal was rejected on the ground that as it had become time barred against two of the plaintiffs it should fail in toto. Hence this second appeal before us.

(2.) WE have heard the learned counsel for the parties and have examined the record as well. The learned counsel appearing for the appellant has argued before us that the appellant's counsel was misled by the certified copy of the judgement of the trial court in believing that the suit was filed by Rang Bahadur alone and as such the appellant should not be penalised for the lapse of his advocate as the appellant himself being illiterate did all that could be expected of him by engaging a lawyer. It has been replied by the respondent that the name of all the plaintiffs appeared in the certified copy of the decree and in the first sentence of the certified copy of the judgment as well and if trouble had been taken to read either of them carefully the position would have been perfectly clear. It has also been argued that sec. 5 of the Indian Limitation Act or sec. 151 C. P. C. has no application to the present case as it is governed by the provisions of Order 41 Rule 20 C P. C.

(3.) IN AIR 1958 Andhra Pradesh 743 it was observed that Order 41 Rule 20 is not specific terms made subject to sec. 22 of the Limitation Act as in the case of Order 1 Rule 10 CPC. But the clause "interested in the result of the appeal" introduces a restriction on the power of the appellate courts namely that the persons ought to be added should be affected by the result of the appeal. The plain meaning of this clause cannot leave any room for doubt that before a party to a suit could be introduced as a supplemental respondent his interest in the appeal must be made out, i. e. it should be shown as to how he would be affected by the decision in the appeal if he does not appear and contest the matter. Prima facie if the time for filing the appeal had expired against a person who was exempted by the trial court a valuable right, viz holding a decree in this favour is acquired by the person and there is no reason why this right should be destroyed. It was also pointed out that Order 41 Rule 33 does not enable a court to add a party for the purpose of giving a decree against him if it could not be done by virtue of Order 41 Rule 20 CPC.