1. This revision petition is by the applicants in I. A. II of R. A. No. 53 of 1974 before the Principal Civil Judge at Gulbarga. They are aggrieved by the order made on the said application, whereby their prayer for their being brought on record as co-appellants (co-plaintiffs in the court below) was refused.
2. The relevant facts briefly are as follows :-
Respondent 1 herein (plaintiff in the trial court) filed O. S. No. 61 of 1971 on the file of the Munsiff at Chincholi for a decree of declaration of title and injunction. In the plaint she had clearly averred that she was suing not only for herself but also on behalf of her daughters, who are the applicants in I. A. II aforesaid, as they were all co-owners of the suit property. The suit was resisted by respondent 2 herein on various grounds which it is unnecessary to particularise. Which is relevant is that no objection on the ground of non jointer of parties had been raised by way of defence. The trial court dealt with all the issues in the case and recorded its findings. It also concluded that the decree of declaration of title could not be granted as the other co-owners had not been joined as parties. Aggrieved by the said judgment and decree, the plaintiff alone appealed to the learned Civil Judge in R. A. No. 53 of 1974. Apparently with a view to cure the defect of non jointer pointed out by the learned Munsiff, the present petitioners preferred an application under Rule 10 (2) of Order 1, Civil P. C. On behalf of the plaintiff appellant, the application was not opposed, and, on the other hand, she was agreeable to the applicants in I. A. II coming on record. On behalf of respondent 2 herein, however, the application was opposed. The learned Civil Judge rejected the application (I. A. II) on the ground that it was belated, and if allowed it would lead to the framing of additional issues, thus rendering it necessary to afford a further opportunity to the parties to adduce evidence, and the same was impermissible when all the necessary issues had been framed and findings recorded. Aggrieved by the said order, the petitioners have approached this Court.
3. On behalf of the petitioners, a memo has been filed by their learned counsel, the material portion of which reads thus:
'2. The petitioners are seeking to come on record in order to cure an initial infirmity in the suit. The infirmity is that the suit being one for declaration of title and permanent injunction, the same could not have been brought by one of the co-owners in the absence of other co-owners.
3. The petitioners submit that they adopt the plaint filed by the plaintiff and stand by the evidence adduced by her in the case. They will not seek further opportunity to lead evidence on the ground that there was no occasion for them to do so earlier. However, the petitioners reserve their right to lead evidence if the decree is set aside and the suit is remanded on other grounds.'
It is plain from the above memo that one of the grounds of objection referred to by the, learned Civil Judge to the effect that it might necessitate a remand and re-trial of the suit, would no longer be available.
4. The only, other question that survives is one of delay. In this connection it is to be remembered that no objection on the score of non jointer of parties had been raised by way of defence. On the other hand, the plaintiff had clearly stated in the plaint that she was suing on behalf of the present petitioners also, and therefore the relief of declaration prayed for by her should have been read in the light of such a specific plea. In these circumstances if the petitioners are taken unawares by the judgment of the learned Munsiff on the question of non jointer, it cannot be said that the application I. A. II filed by them for the first time in appeal was in any manner belated. It is no doubt contended by Sri K. Appa Rao, the learned counsel for respondent 2 herein, that it would have been legal and proper if the appellant (plaintiff in the lower court) had herself filed the application requesting for the addition of these petitioners as co-plaintiffs, and therefore co-appellants. Having regard to the provisions of sub-rule (2) of Rule 10 of Order 1. Civil P. C., it seems to me that the procedure adopted by the petitioners Would fulfill the requirement of the said rule, which also provides for addition of parties by court suo motu. Hence I do not find any substance in the abjection of Sri Appa Rao.
5. On behalf of the petitioners, reliance was placed on a certain enunciation of the Supreme Court in Kanakarathanamal v Loganatha, : 6SCR1 . The facts of that case were that the appellant had sued for recovery of properties belonging to her mother Rajambal claiming to be the sole heir thereof while she had two brothers living. The said brothers had not been made parties to the suit. At no stage in the proceedings before the trial court or the High Court, any attempt was made by her to bring the said two brothers on record as co-heirs. Ultimately she was non-suited for such failure. It was in that context before the Supreme Court an attempt was made on her behalf to bring the said two brothers on record. The Supreme Court rejected the said application and stated the reasons therefore. The relevant passage occurs at paragraph 14 of the said report, which reads thus:
'(14) We do not think there is any justification for allowing the appellant to amend her Plaint by adding her brothers at this late stage. We have already noticed that the plea of non jointer had been expressly taken by respondents 1 and 2 in the trial Court and a clear and specific issue had been framed in respect of this contention. While the suit was being tried, the appellant might have applied to the trial Court to add her brothers, but no such application was made. Even after the suit was dismissed by the trial Court on this ground it does not appear that the appellant moved the High Court and prayed that she should be allowed to her brothers even at the appellate stage, and, so, the High Court had no occasion to consider the said point. The fact that the High Court came to the contrary conclusion on the question of title does not matter, because if the appellant wanted to cure the infirmity in her plaint, she should have presented an application in that behalf at the hearing of the appeal itself. In fact, no such application was made even to this Court until the appeal was allowed to stand over after it was heard. Under the circurntances, we do not think it would be possible for us to entertain the said application. In the result, the application for amendment is rejected.'
6. Relying on the said enunciation, it is contended by Sri N. Govindaraj, the learned counsel for the petitioners, that it was implicit in the observations of the Supreme Court that it was open to a party to bring the co-owners on record even at the stage of an appeal provided there was no laches or negligence. In the instant case, in the circumstances afore-mentioned, the plaintiff at all relevant times thought that she was suing both for herself and her daughters in seeking a declaratory decree. No objection whatsoever was ever taken by the defendant in the suit on the ground of non jointer of parties. In such a situation if the other co-owners are sought to come on record by themselves with the concurrence of the plaintiff, it is not reasonable to hold that there was an element of negligence on the part of the said parties. Moreover, it seems to me, if they are not brought on record, their interests would remain unaffected and would merely give rise to another suit going over the ground all over again. Such multiplicity of proceedings ought ordinarily to be avoided by a Court. Further, certain material issues raised in the case have been held in favour of the defendant and any such suit that may be filed by persons in the position of the petitioners herein would have the effect of rendering such findings inoperative, much to the prejudice of the defendant. The above enunciation of the Supreme Court, seems to support the contention urged by Sri Govindaraj, and therefore clearly deserves to be accepted.
7. But Sri Appa Rao drew my attention to a further enunciation in the above said decision of the Supreme Court occurring in Paragraph 15 thereof, wherein it is observed that the stage for joining such necessary parties subject to pleas of prejudice and limitation, was when the proceedings were pending in the trial court But it is seen from the portion emphasised in the passage reproduced earlier that it would have been permissible for the appellant therein to have moved the High Court at least to join her brothers as parties. Hence the enunciation relied on by Sri Appa Rao would have to be understood in the light of the aforesaid enunciation. I am not therefore in agreement with the contention of Sri Appa Rao.
8. In the result this petition clearly deserves to be accepted and is accordingly allowed. The order of the learned Principal Civil Judge, Gulbarga, on I. A.II in R. A. No. 53 of 1974 is hereby set aside. Consequently, I. A. II stands allowed. The learned Civil Judge is directed to permit the petitioners to be brought on record as co-appellants with the plaintiff and proceed to dispose of the appeal, keeping in view the undertaking given by the petitioners and recorded earlier.
9. In the circumstances of the case, I am inclined to think that the petitioners herein should be directed to pay some compensatory costs to the defendant-respondent 2 on account of the inconvenience caused to her. Taking all the circumstances into consideration, I direct the revision petitioners (additional appellants) to pay to the 2nd respondent herein Rs. 150/- as compensatory costs before they are actually brought on record, and the said costs shall not be costs in the cause. In this petition, I make no order as to costs.
10. Revision allowed.