1. This is a defendant's appeal arising out of a suit for recovery of possession. The plaintiffs claimed that they and defendant 2 were owners of the land in dispute and asked for the following relief:
The plaintiffs and defendant 2 may be put in actual and absolute possession of the land, etc., by ejectment of the defendants.
2. Defendant 2 did not appear at the trial at all, and does not appear to have engaged a counsel. The trial Court decreed the claim in the following words :
The suit is decreed with costs for possession, etc.
The decree that was. framed by the trial Court read as follows:
The claim of the plaintiffs and defendant 2 for possession, etc., be decreed and defendants should remove the materials etc.
3. The defendant preferred an appeal to the District Judge against the plaintiffs only and did not implead defendant 2 at all. It struck the appellate Court at the time of the argument that defendant 2 was a necessary party, and purporting to act under Order 2, the Court called upon the appellant to make him a party. Thereupon the appellant put in an application for impleading him. When notice was issued to the defendant 2, Prem Sukh, he appeared and strongly objected to his being impleaded. The appellate Court ultimately declined to implead him and cancelled its previous order. The result was that the appeal of the defendant failed even as against the plaintiffs. In appeal it is contended on behalf of the defendant that the appellate Court should, under Order 41, Rule 20 have impleaded defendant 2 because this omission was the result of some unfortunate mistake. The learned advocate for the appellant relies very strongly on a ruling of the Madras High Court in Kunhonna Rai v. Mankke Rai A.I.R. 1929 Mad. 343. That ruling certainly supports his contention. In that case the name of one of the plaintiffs had been under some mistake omitted from the memorandum of appeal. The learned Judges came to the conclusion that the recent decision of their Lordships of the Privy Council did not apply to the case and they had the power to correct a mistake and to have the appeal memorandum amended, by inserting the proper name and bringing on record the proper party. With all respect I am unable to agree with their view. The Code of Civil Procedure draws a clear distinction between a mere amendment of a pleading and the addition of a party. In the case of a ' plaint, the amendment of a plaint can be made by the Court under Order 6, Rule 17, whereas addition of parties can be ordered under Order 1, Rule 10. The two are not identically the same. The addition of a new person as a party is not and cannot be described as an amendment of a pleading. Order 1, Rule 10(5), makes it clear that the addition of a party under that Rule would be subject to the provisions of Section 22, Limitation Act, and the proceedings against any person added as defendant shall be deemed to have begun only on the service of the summons. Under Section 22, Lim. Act, the suit shall be deemed to have been instituted as regards him when he was so made a party. It follows that in no case can a suit be considered to have been instituted (as regards a newly added party) earlier than the date when he was impleaded.
4. The amendment of a memorandum of appeal can be made by an appellate Court by virtue of the powers conferred on it under Section 107(2), Civil P.C.; but the power of the appellate Court to add a new party is subject to the limitations prescribed by the Code. Order 41, Rule 20, deals with such a power and an appellate Court, when it appears to it at the hearing, that any person who was a party to the suit but who has not been made a party to the appeal and is interested in the result of the appeal, may direct that such a person be made a respondent. The object of that rule is not to empower an appellate Court to implead a person who was interested in the decree of the Court below and against whom no appeal has been preferred and who has, therefore, acquired a substantive right and is no longer interested in the result of the appeal, to be impleaded so as to enable the appellate Court to pass a decree against him afresh. With great respect, I am unable to agree with the view of the learned Judges of the Madras High Court in the case quoted, that the adding of the name of a fresh person is a mere amendment of the memorandum of appeal which the Court has an inherent power to order. Their Lordships of the Privy Council in V.P.R.V. Chockalingam Chetty v. Seethai Ache , emphasized that if owing to the plaintiff's failure to make certain defendants-respondents within the time limited for filing an appeal the appeal so far as they are concerned becomes time-barred, the latter are entitled to hold the decrees in their favour and their substantive right is of a very valuable kind, of which they should not lightly be deprived. Their Lordships emphasized that the provisions of Section 22, Lim. Act, which govern Order 1, Rule 10(2), sufficiently safeguard the rights of a party who has been left out. Their Lordships then proceeded to consider the provisions of Order 41, Rule 20, which expressly deals with the addition of a respondent whom the appellant has not made a party to the appeal, and observed:
That rule empowers the Court to make such party a respondent when it appears to the Court that 'he is interested in the result of the appeal'. Giving these words their natural meaning and they cannot be disregarded-it seems impossible to say that in this case the defendants against whom these suits have been dismissed and as against whom the right of appeal has become barred, are interested in the result of the appeal filed by the plaintiff against the other defendants.
5. Although it is true that in that case on the merits their Lordships were not disposed to allow the respondent to be added even if under that rule the Courts could in a proper case add a defendant as a respondent for the purpose of passing a decree against him, but the view expressed by their Lordships that a person who was interested in the decree of the trial Court and who has not been impleaded in the appeal is no longer interested in the result of the appeal necessarily implies that Order 41, Rule 20, would not be applicable to such a case, and therefore the appellate Court would not have any jurisdiction at all to implead him after limitation has expired. Cases of hardship are not without a remedy. Section 5, Lim. Act, expressly provides for an appeal being filed against a respondent beyond time, if good cause is shown for not preferring the appeal in time. If owing to some bona fide mistake or other sufficient cause a defendant has been omitted from the memorandum of appeal there is nothing to prevent the appellant from filing a fresh appeal against him even though limitation has expired, and the appeal can be admitted if he satisfies the appellate Court that there was sufficient cause for not appealing against him within the prescribed time. But the filing of an appeal beyond time and getting the delay condoned by showing sufficient cause within the meaning of Section 5, Lim. Act, is one thing and the power of an appellate Court to implead a party afresh and then to pass a decree against him under Order 41, Rules 20 and 33 is quite another thing. In the one case the appellant is entitled to get rid of the bar of limitation by showing sufficient cause. In the other case the Court by impleading the new party would be depriving him of his plea of limitation and destroying by its own act a valuable right which has accrued to him. It, therefore, seems to me that the remedy of an appellant, who has by mistake left out a necessary party in whose favour the decree of the Court below had been passed jointly, is to file an appeal against him, accompanied by an application for extension of time under Section 5, Lim. Act, supported by an affidavit showing good cause. If in such a case the appeal is ultimately admitted against the new defendant, then even if the previous appeal has been dismissed on account of non-joinder, the Court may in a proper case review its previous order and restore the appeal to its original number, and dispose of both the appeals simultaneously. I think the learned Judge of the Court below took the correct view that he should not implead defendant 2 after limitation had expired.
6. The last point urged is that this present ease should be distinguished from a case where a co-plaintiff, who is a joint decree-holder, has been left out from the memorandum of appeal. It seems to me that in this case the decree was undoubtedly a joint decree in favour of the plaintiffs and defendant 2, and indeed the decree professed to be such a decree. The position of defendant 2 was, therefore, identical with that of the co-plaintiffs, and it was just as incumbent on the appellant to implead defendant 2 as any of the other plaintiffs. The decree being a joint decree, the appeal was bound to fail. A somewhat similar question came up for decision in Abrar Husain v. Ahmad Raza reported in : AIR1937All82 , where owing to a difference of opinion between the two learned Judges, who first considered the case, it was held that where a decree is a joint decree in favour of the plaintiffs and a defendant, who has been left out, the omission to implead him would be fatal, and an appellate Court would not have power to implead him after the period of limitation has expired; but where the decree is in fact not a joint one such a defendant may be impleaded. This appeal is accordingly dismissed. In view of the fact that the learned Judge remarked that the omission was due to a mistake and there was a ruling of the Madras High Court in support of the plaintiffs' contention, I direct that the parties should bear their own costs of this appeal. Leave to appeal under the Letters Patent is refused.