JODHISHTAR Vs. SANNU LAL

JUDGEMENT

(1.) THIS appeal arises out of a suit for possession of a chabutra and for demolition of certain structures. One Musammat Waziran was made a defendant in the original suit. It was stated in paragraph 8 of the plaint that part of her share was outside the place in dispute and that she did not join with the plaintiff in the suit. Before the suit was heard, Musammat Waziran asked to be made a plaintiff instead of a defendant, and an order was made accordingly. The Court of first instance made a decree in favour of the plaintiffs, Musammat Waziran, in the events which had happened, being one of the plaintiffs. The defendants appealed but by an oversight neglected to make Musammat Waziran a respondent. Before the appeal was heard but after the period for presenting an appeal had expired, the defendant appellants applied to make Musammat Waziran a respondent. The Court refused the application. The appeal proceeded, and the decree of the Court of first instance was reversed. The result is that Musammat Waziran is not bound by the decree on appeal. The original decree was in form a joint decree in favour of all the plaintiffs. The present appeal is preferred on the ground that it was not competent for the Court below to reverse the decree of the first Court in the absence of Musammat Waziran. It is quite clear that Musammat Waziran was a necessary party in the Court below. Section 559 of Act No. XIV of 1882 provides as follows: If it appear, to the Court at the hearing that any person who was a party to the suit in the Court against whose decree the appeal is made, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent". In my judgment it had been made to appear to the Court that Musammat Waziran, who had been a party to the suit but who had not been made a party to the appeal, was interested in the result of the appeal, and I think that the learned Subordinate Judge ought to have acted in accordance with the provisions of Section 559. In the Full Bench case of Bindeshri Naik V/s. Ganga Saran Sahu, 14 A. 154, it was held by all the members of the Bench that it is competent to a Court to act under Section 559 and to add a respondent to an appeal, though the time within which an appeal might have been preferred as against such person has expired. I accordingly allow the appeal, set aside the decree of the Court below, and remand the case to that Court with directions to take such steps as may be necessary to make Musammat Waziran respondent to the appeal, and to proceed to hear the case after she has been made a party. Costs of both sides will be in the discretion of the Court below.