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Bhojraj Krishnarao and anr. Vs. Darsu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 306 of 1953
Judge
Reported inAIR1959MP52
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 41, Rule 20; Limitation Act, 1908 - Sections 2(7) and 5; Transfer of Property Act, 1882 - Sections 8 and 105
AppellantBhojraj Krishnarao and anr.
RespondentDarsu and ors.
Appellant AdvocateA.P. Sen, Adv.
Respondent AdvocateY.S. Dharmadhikari, Adv.
DispositionAppeal allowed
Cases ReferredBholu v. Chhajjulalsa.
Excerpt:
- - a sad (mistake was, however, made by the aforesaid defendant in not impleading narsingh rao, plaintiff, as a respondent in the first appeal. the suits having been dismissed, the plaintiff appealed to the high court, but in one appeal failed to join the first defendant, and in the other the first two defendants, as respondents. 255-256 of air) :as regards the rest of the case, owing to the plaintiffs failure to make these defendants respondents within the time limited for filing an appeal, these appeals, so far as they are concerned, pre prima facie barred by limitation, and they are entitled to hold the decrees in their favour, which as pointed out by their lordships in a very recent case delhi cloth and general mills co. it was for the plaintiff appellant, who applied to the court.....b.k. chaturvedi, j.1. this is second appeal by two plaintiffs, bhojraj and narsingh rao, who filed a suit against several defendants for the recovery of possession of -/-/6 share of the village of ambhori, tahsil multai, along with sir fields and some khudkasht land, situate at ambhori, and a house. the plaintiffs-appellants averred that they had pin-chased the suit property for rs. 1,000/- from one wamanrao, brahmin, of bhainsdahi. they were ousted from possession by the defendants after getting a decree against them from the court of the civil judge (class ii), multai, under section 9 of the specific relief act. they, therefore, filed this suit for possession of the suit property.2. the defendants resisted the suit on the main ground that mst. radhabai, widow of bapuji, had executed a.....
Judgment:

B.K. Chaturvedi, J.

1. This is second appeal by two plaintiffs, Bhojraj and Narsingh Rao, who filed a suit against several defendants for the recovery of possession of -/-/6 share of the village of Ambhori, Tahsil Multai, along with sir fields and some khudkasht land, situate at Ambhori, and a house. The plaintiffs-appellants averred that they had pin-chased the suit property for Rs. 1,000/- from one Wamanrao, Brahmin, of Bhainsdahi. They were ousted from possession by the defendants after getting a decree against them from the Court of the Civil Judge (Class II), Multai, under Section 9 of the Specific Relief Act. They, therefore, filed this suit for possession of the suit property.

2. The defendants resisted the suit on the main ground that Mst. Radhabai, widow of Bapuji, had executed a perpetual lease in their favour and they had been in possession of the property since 1-11-1917.

3. The trial Court granted a decree for possession in favour of the plaintiffs on condition of payment of Rs. 2,135/- by them to the defendants 9 to 14, The defendants 10 to 14 filed an appeal in the Court of the Additional District Judge, Betul, against the decision of the trial Court; the other affected defendants were impleaded as respondents. A sad (mistake was, however, made by the aforesaid defendant in not impleading Narsingh Rao, plaintiff, as a respondent in the first appeal.

The defendants 10 to 14 then made an application to the lower appellate Court for joining Narsingh Rao as a respondent; but this application was made at a time when that appeal itself had become barred by time. Despite it, the lower appellate Court allowed Narsing Rao to be joined as a respondent under Order 41, Rule 20, Civil Procedure Code or under Section 151 of the Code, giving them benefit of Section 5 of the Limitation Act.

4. The first point in this second appeal that has been taken is that the decree of the trial Court had become final so far as the plaintiff Narsingh Rao was concerned. The decree of the trial Court was a joint decree and it could not be split up so the whole appeal ought to have been dismissed by the lower appellate Court as barred by time.

5. Much argument has been addressed to me about the wording of Order 41, Rule 20, Civil Procedure Code, and also about the Privy Council decision in Chokalingam Chetty v. Secthai Ache, 55 Ind App 7 : (AIR 1927 PC 252). I have had occasion to discuss the provisions of Order 41, Rule 20, and the said decision of the Privy Council along with other decisions of the High Courts in a Division Bench case in Madhya Bharat, reported in Keshorao v. Yeshwantrao, AIR 1957 Madh-B 17. We followed therein the Bombay view as ex-pressed in Alabhai Vajurbhai v. Bhura Bhaya, ILR (1937) Bom 602 : (AIR 1937 Bom 401), that if a party to the original proceeding is proposed to be added as a party to the appeal and the time for appeal against him has expired, the question whether the interest of such person proposed to be added still survives in the appeal must depend on the nature of the litigation, the decree passed, the object-matter of the appeal and the effect of the decision in appeal in his absence.

6. I am of opinion that a joint decree-holder who has not been joined as a respondent within time is not a person 'interested in the result of the appeal' within the meaning of Rule 20, Order 41, as explained in the Privy Council decision in Choka-lingum Chetty v. Seethai Ache (cit. sup.). As the trial Court's decree in his (Narsingh Rao's) favour had become final, he could not have been impleaded subsequently. I am fortified in this view by certain observations made in the decisions reported in Md. Tajammul Hussain Khan v. Dy. Commissioner, Barabanki, AIR 1944 Oudh 9, : Ganpat v. Shri Maruti Deosthan, AIR 1952 Nag 181; Krishnaswami v. Sankarappa, AIR 1935 Mad 175; Badri Narayan v. East Indian Railway Co., ILR 5 Pat 755 : (AIR 1927 Pat 23): Kali Dayal Bhattacharjee v. Nagendra Nath, 24 Cal WN 44 : (AIR 1920 Cal 264); Midnapur Zamindary Co. Ltd. v. Amulya Nath Roy, ILR 53 Cal 752 : (AIR 1926 Cal 893) : Manindra Chandra Nandi v. Bhagabati Devi 30 Cal WN 45 (AIR 1926 Cal 335); and Ratanlal Chowla v. Janda Rubber Works Ltd., AIR 1950 EP 355.

7. Most of theses decisions are either in appeals from original decrees or in appeals from appellate decrees under Order 42, Civil Procedure Code. Order 42 says only this that the rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees, and Order 41, Rule 20, runs as follows :

'Where it appeal's to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, 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 further day to be fired by the Court and direct that such person be made a respondent.'

8. In 55 Ind App 7 : (AIR 1927 PC 252), the appellant had brought two suits against several defendants claiming certain immovable properties. The suits having been dismissed, the plaintiff appealed to the High Court, but in one appeal failed to join the first defendant, and in the other the first two defendants, as respondents. At the hearing it appeared that the appeals could not succeed unless the above defendants were on the record. The plaintiff thereupon applied to add them as respondents upon such terms as the court might consider just. The time limited for appealing had then elapsed. The High Court at Rangoon rejected the application and dismissed the appeals. The case went to the Privy Council where the decision of the High Court was upheld.

9. In that case their Lordships observed thus (at pp. 12-13) (of Ind App): (at pp. 255-256 of AIR) :

'As regards the rest of the case, owing to the plaintiffs failure to make these defendants respondents within the time limited for filing an appeal, these appeals, so far as they are concerned, pre prima facie barred by limitation, and they are entitled to hold the decrees in their favour, which as pointed out by their Lordships in a Very recent case Delhi Cloth and General Mills Co. v. Income-tax Commr. Delhi, 54 Ind App 421 at p. 425 (AIR 1927 PC 242 at p. 244) is a substantive right of a very valuable kind of which they should not lightly he deprived. When parties are added by the Court after the institution of a suit under Order 1, Rule 10 (2), Section 22 of the Limitation Act provides that the date when they are added is to be deemed to be the date of the institution of the suit so far as they are concerned for purposes of limitation, and the rights which they may have acquired under the Limitation Act are therefore sufficiently safeguarded. The addition of a respondent whom the appellant has not made a reply to the appeal is expressly dealt with in Order XLI, Rule 20, on which the plaintiff relied both in the Appellate Court and before their Lordships.

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. It was for the plaintiff appellant, who applied to the Court to exercise its powers under this rule, to show what was the nature of their interest, and this he has failed to do. Their Lordships are therefore of opinion that the appellate Court were right in rejecting his application under the above rule.'

Their Lordships, then, added :

'The appellate Court was then asked to take action under Order XLI, Rule 33. That rule empowers an Appellate Court to pass any decree and make any order which ought to have been passed or made, and to make or pass such further decree or order as the case may require, and provides, further, that this power may be exercised notwithstanding that the appeal is as to part only of the decree, and 'may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.'

Here the plaintiff, whose suits bad been dismissed against all the defendants, failed to appeal against the decrees in so far as they affected some of them and allowed the appeal as against them to become barred. In these circumstances the appellate Court, in the exercise of their discretion, refused to take action under the rule so as to deprive these defendants of the very valuable right which they had acquired in consequence of the plaintiffs failure to appeal against the decrees in so far as they affected them. Assuming that under this rule the Court in a proper case might add a defendant as respondent for the purpose of passing a decree against him, their Lordships see no sufficient reason for interfering with the refusal of the Appellate Court to do so in this instance.'

10. It would appear that the facts of the Privy Council case were similar to those in the instant case. In the instant case, the respondents filed the appeal in the Court of the Additional District Judge, Betul, on 14-4-1952. On that date the appeal was in time. Bhojraj was made respondent No. 1, but Narsingh Rao's name was not mentioned. After several months an application was made by the counsel for the appellants on 11-9-1952 to that Court for making Narsingh Rao as respondent in that appeal. The two paragraphs which were stated in that application and which are material for this second appeal are as follows :

'3. That the appellants obviously had intended to implead both the plaintiffs (1) Bhojraj and (2) Narsinghrao as respondents in the appeal, but due to oversight the appellants have inadvertently omitted to implead plaintiff No. 2 Narsinghrao as respondent in the appeal. The appellants now find that it will not be possible to arrive at a just decision of the appeal unless Narsinghrao plaintiff No. 2 is added as respondent and is afforded an opportunity of being heard. Any decision in appeal in his absence is bound to affect his rights under the decree.

4. That both plaintiffs Bhojraj and Narsinghrao Belong to one and the same joint family and the appellants were under the impression that Bhojraj was representing the joint family, probably on account of this the fact that there were two plaintiffs escaped the notice of the appellants.'

Except for oversight and inadvertence, no other ground had been mentioned in that application to explain the omission of Narsinghrao's name from the array of respondents. In my opinion, the observations of the Privy Council fully apply to the instant case. In view of these observations, the learned Court below was not justified in exercising its discretion in favour of the present respondents. My attention has been drawn to certain rulings of some High Courts where a different view under different circumstances has been taken. It would be proper briefly to refer to the facts of those cases.

11. The Privy Council case has been explained in two partition cases in 1937 : one from Madras and the other from Bombay. In Swaminatha v. Gopala-swami, AIR 1937 Mad 741 : ILR 1938 Mad 52, the facts were that in a partition suit the defendants represented their sub-families but their sons were not formally brought on record. Their existence was not recognized either in the whole conduct of the suit or in the decree apportioning the shares to each branch. The sons were not impleaded as parties to the appeal against such decree.

It was held by the High Court that in these circumstances though the appellate decree would not directly affect their sons as they were not parties to it, the result of any diminution of their father's assets would ipso facto be to diminish the extent of their own assets and as such they would be prejudiced by the modifications made behind their back in the decree under appeal. Such sons therefore being 'interested in the result of the appeal' could be added as parties to the appeal under Order 41, Rule 20, Civil Procedure Code, even, if they were regarded as necessary parties to the appeal the effect of whose inclusion would be fatal to it.

The Division Bench in that case explained the Privy Council case on the basis that it was Sir John Walks who delivered the opinion of the Board and confirmed the judgment of the Rangoon High Court in Chockalingam Chetty v. Singaram Chetty, ILR 2 Rang 541 : (AIR 1925 Rang 108) and that the Judges of the Rangoon Court followed the Madras decision in Subramanian Chetty v. Veerabhadran Chetty, ILR 31 Mad 442 to which Sir John Wallis was himself a party.

In the Madras case in ILR 31 Mad 442 (supra) the learned Judges (Sir Arnold White, C. J. & Wallis J.) had explained that Rule 20 of Order 41 was inserted

'to protect parties to the suit who had not been made respondents in the appeal from being prejudiced by modifications made behind their backs in the decree under appeal.''

The Division Bench of the Madras High Court, therefore, laid down that even a person against whom the right of appeal has become barred can be added as a respondent under Order 41, Rule 20, Civil Procedure Code, under certain special circumstances.

12. There is no doubt that the special circumstances of that case justified impleading the sons as parties to the appeal; though, if they had been made parties to the suit, it would have been beyond the period of limitation. In the Bombay case, ILR (1937) Bom 602 : (AIR 1937 Bom 401) the suit was tiled in 1900 to obtain a declaration regarding the plaintiffs title to a share in certain talukdari estate in the District of Ahmedabad. The title was confirmed by the High Court on 5-8-1907.

The provisions of the Gujarat Talukdars Act (Bom. 6 of 1888) regulated the procedure in regard to the Partition of the estate and the appellants therefore applied in 1916 to the Talukdari Settlement Officer for the separation of their share in the said estate. There were numerous parties, and the persons interested in the estate were about 65. All of them had been impleaded before the said officer for the purpose of effecting a partition. In course of time, some of them died, but through inadvertence the names of their legal representatives were not brought on the record.

In consequence, the Talukdari Settlement Officer dismissed the application in 1923. An appeal was taken to the District Court and the District Judge in 1926 reversed the order of the Talukdari Settlement Officer and directed the heirs of the deceased respondents to be put on the record and the partition proceeded with. The matter was again taken up by the Talukdari Settlement Officer. Several issues were raised for determination, all of which except one were decided in favour of the appellants in September 1930.

With regard to that one issue, it was held that as the certified copy of the High Court's decision was not produced by the appellants the partition could not be proceeded with and the application for partition was dismissed with costs. Against that order, an appeal was taken to the District Court and there it was discovered that certain parties were dead and their legal representatives were not brought on record in time. The entire appeal abated. This was upheld by the District Judge and the application for setting aside the abatement was dismissed.

An appeal was taken to the Bombay High Court where reliance was placed on the provisions of Order 41, Rule 20, Civil Procedure Code, and the decision of the Privy Council in 55 Ind App 7: (AIR 1927 PC 252) (supra). The Division Bench of the Bombay High Court quoted certain extracts from the Privy Council decision and observed that the remarks therein imply that the question whether the interest of the respondents proposed to be added still survives in the appeal must depend on the nature of the litigation, the decree passed, the subject-matter of the appeal, and the effect of the decision in appeal in their absence.

Wassoodew, J. who gave the leading judgment (N.J. Wadia, J. concurring) observed:

'Here is a partition suit instituted in 1916. The extent of the interest of the co-sharers in the estate was determined in 1916. There was no question of limitation when the suit was instituted, The first Court dismissed the suit in 1927. The effect of that dismissal was merely the restoration of the parties to the original status. Referring to the order of dismissal, there is nothing in it which has the effect of a decree in the defendants' favour improving their status before the suit. In consequence, their interest in the subject-matter of the appeal is the same as it was before. In these circumstances I think the discretion could properly be exercised in favour of the appellants' request that the heirs and legal representatives of the deceased respondents be added as parties to the appeal before it is heard.'

It will be seen that there were special circumstances in that case also and considering the nature of the litigation the abatement was rightly set aside.

13. Then in the United Provinces v. Atiqa Begum, 1940 FCR 110; (AIR 1941 FC 16) there is certain observation of Sulaiman J. on pages 141-42 (about this rule in the following words:

'It is contended before us that the powers p Jan appellate court are restricted within the limits Imposed by order XLI, Rule 20, and that the same restriction is imposed on a court hearing a second appeal under Order XLII, Civil Procedure Code. That rule no doubt permits of making a person respondent, who was a party to the suit in the original court, and who has not been made a party to the appeal, but is interested in the result of the appeal. Obviously, this rule would not apply to the present case. But the language of the rule does not show that it is exclusive or exhaustive so as to deprive a court of any inherent power which it may possess and can exercise in special circumstances, and which has been saved by Section 151, Civil Procedure Code.'

It will be clear from the above that it is a casual observation in the nature of obitar dictum and does not refer to the Privy Council or any other decision at all.

14. In Shantilal v. Firm Hira Lal Sheo Narain, ILR (1942) Lah 603: (AIR 1941 Lah 402) the above-quoted observation has been relied upon for holding that apart from Order 41, Rule 20 of the Code of Civil, Procedure, the High Court has ample powers under Section 151 to add a party to the appeal even after the expiry of the period of limitation prescribed for appeal. The circumstances of that case were also peculiar. The name of the respondent was omitted from the array of parties to the second appeal to High Court by the mistake caused by an error in the certified copy of the lower Appellate Court which had been supplied to the appellant and which did not contain his name.

Under these circumstances, it was held that it was a fit case where the party so omitted should be added to the appeal even after limitation, and the delay condoned under Section 5 of the Limitation Act. Reliance was placed, inter alia on Bishna v. Sucha Singh, AIR 1934 Lah 402(2) where, under similar circumstances, Abdul Rashid J. had held the same view. It may be noted here that in the Madhya Bharat case, AIR 1957 Madh-B 17 -- to which I was a party -- the name of one of the respondents was not at all mentioned in the copies of the judgment and the decree of the Court below and it was held that the mistake of the plaintiff-appellant in omitting the name of one person as respondent was due to the mistake of the Copying Department and that no litigant should be allowed to suffer through the mistake of any official of the Court who is connected with administration of justice.

In this connection I may also usefully refer to Munshi Ram v. Abdul Aziz, AIR 1943 Lah 252 where the contesting defendant had not included the names of certain persons among respondents. It was held by Teja Singh J. that those defendants were merely formal ones, not being necessary parties to the appeal, and the plaintiff had claimed no relief against them. Yet they may be interested in the result of the appeal and as such they could be brought on record even after limitation had expired against them.

15. It will be manifest that the principle deduced from these rulings cannot be made applicable to the facts of the instant case where Narsingh Rao was not a formal respondent. He was one of the two plaintiffs who had filed the suit for possession against the respondents and had obtained a decree. He was a necessary party to the appeal. The decree of the trial Court in his favour had become final; there was no mistake in the copy of the judgment or decree and there was no complication in the case at all.

16. The only ground on which the application in the instant case had been- made was oversight and inadvertence of the appellants. I very much doubt if on this ground any discretion can be exercised under Section 5 of the Limitation Act in favour of the present respondents.

17. It is not every mistake of the counsel or of his clerk which entitles the appellant to invoke the provisions of Section 5 of the Limitation Act. It is not sufficient for the appellant to show that he acted on the advice of a counsel, but the Court must further be satisfied that the advice was given with due care and attention. Municipal Board Lucknow v. Kali Krishna Narain, AIR 1944 Oudh 135.

It must be found that the error was that might, have easily occurred even if reasonably due care and attention had been exercised by the counsel: Tin Tin Nyo v. Maung Ba Saing, ILR 1 Rang 584: (AIR 1924 Rang 148). Wanton negligence on the part of a legal adviser is not a sufficient ground for the exercise of the Court's clemency under Section 5 of the Limitation Act: Jodhan Pershad Singh v. Nanhku Pershad Singh, 46 Ind Cas 509: (AIR 1918 Pat 336).

18. In Padmaraj' Fulchand v. Mitsui Bushan-Kesha Ltd., 78 Ind Gas 154: (AIR 1924 Nag 279) a Division Bench of the Nagpur Judicial Commissioner's Court (Prideaux and Kinlchede, A. J. Cs.) cited with approval the following observations of Lord Halsbury, L. C., in the case of In re, Helsby; Ex parte. The Trustee, 1894-1 QB 742:

'The rule gives the Court power under special circumstances to extend the time for appealing. Here there are in my opinion no special circumstances. A mistake was made by a clerk of the appellants' solicitors. If that is a 'special circumstance', then in every case in which a blunder has been made about the time for appealing the time ought to be extended. I do not think that is the meaning of the rule.'

The Division Bench also quoted the opinion of Davey L. J. who had observed:

'Upon the question whether the time ought to be extended, speaking for myself, I am inclined to adopt the view of the late James L.J., that a party has a vested right in an order of the Court in favour, and ought not to be deprived of an advantage given to him by the rules, unless there has been on his part some conduct raising an equity against him, or in a case of 'inevitable accident'. I cannot see that a mistake made by the solicitor of the party who is applying for an extension of the time is a sufficient ground for extending it.'

The Division Bench observed that the principle enunciated in the above English case had received ample recognition at the hands of Courts in India and referred to Babu Ganesh v. Sitaram Martand, ILR 41 Bom 15: (AIR 1916 Bom 153) and Karson-das v. Bai Gungabai, 7 Bom LR 965 in this connec-tion. A brief reference was also made to Vitha v. Sakhya, 5 Nag LR 25 and Kedarnath v. Zumberlal, 12 Nag LR 171: (AIR 1916 Nag 39).

19. In Labhu Ram v. Moharnmad Din, 93 Ind Gas 876 (Lah) a Single Judge (Broadway J.) of the Lahore High Court adopted the same view when he held that where the mistake on the part of the counsel is not due to ignorance but is due to want of due care and attention, it cannot afford a ground for extending time.

20. Another English case often followed formerly by Courts in India is Highton v. Treherene 1878-48 LJ KB 167. In this case, Brett M. R. laid down the principle thus:

'In cases where a suitor has suffered from the negligence or ignorance or gross want of legal skill of his legal adviser he has his remedy against that legal adviser, and meantime the suitor must suffer. But where there has been a bona fide mistake not through misconduct non through negligence non through want of reasonable skill, but such as a skilled person might make, I very much dislike the idea that the rights of the client should be thereby forfeited. It seems to be obvious that the court has jurisdiction to enlarge the time under some circumstances. Therefore, why not on the present occasion? It has been said that when the time for appealing is past, the person who would be respondent has a vested right to retain his judgment. But obviously it is not an absolutely right, and I am perfectly confident that the practice of all the courts has been to treat it as not an absolute right, though the courts are chary of enlarging the time when the time allowed by the rule has run out.'

In Surendramohan v. Mahendranath, ILR 59 Cal 781: (AIR 1932 Gal 589) a Division Bench of the Calcutta High Court reviewed the entire Indian case law on the point and then observed:

'From a review of the cases referred to above it would appear that there is no authority for the view that a mistake of a legal adviser, however gross and unexecusable, if bona fide acted upon by a litigant, will entitle him to the protection of Section 5 of the Limitation Act. In this Court, in the case of Ambica Ranjan v. Manikgunj Loan Office, Ltd., ILR 55 Cal 798: (AIR 1928 Cal 468), Suhrawardy J., while condoning the mistake in that particular case, refused to lay down any such general rule. In our opinion, the rule expressed by Brett M. R. in (1878) 48 LJQB 167 embodies a sound working formula and is supported by the general trend of judicial decisions in this country.'

A Full Bench of Oudh Chief Court agreed with this conclusion in Mithoo Lal v. Jamna Prasad, ILR 9 Luck 193 : (AIR 1933 Oudh 523). A Division Bench of the Nagpur High Court (Bose and Puranik JJ.) in Krishna Rao v. Trimbak, ILR (1938) Nag 409: (AIR 1938 Nag 156) after reviewing the case law also agreed with the conclusions of the Calcutta High Court and added:

'The period for preferring an appeal cannot be extended simply because the appellant's case is hard and calls for sympathy, nor will the Courts extend the period of limitation merely out of benevolence to the party seeking relief. A Court in granting the indulgence must be satisfied that there was diligence on the part of the appellant and that he was not guilty of any negligence whatsoever.'

21. It will appear from the above review that all the High Courts are agreed with, the view that Section 5 of the Limitation Act gives the Court a discretion which is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well-understood, the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant. See also Nerbada Prasad v. Nathuram, 8 CPLR 121.

In the instant case, there is gross negligence on the part of the appellants and their lawyer. There was also want of bona fide in the sense that the first appeal was not filed with due care and attention within the meaning of Section 2, Sub-section (7), of the Indian Limitation Act. I am, therefore, clear in my mind that the lower appellate Court had no jurisdiction to treat it as a case under Section 5 of the Limitation Act.

22. As regards Section 151 of the Civil Procedure Code, it has to be borne in mind that there is no room for the application of the inherent power where there is not only an express provision in the Code but also an express provision negativing the claim of the party. In fact, the power under Section 151 is intended to supplement the other provisions of the Code, and not to evade or ignore them or to invent a new procedure according to individual sentiments.

23. It follows that instead of impleading Narsingh Rao as a respondent to the 1st appeal the lower appellate Court ought not to have dismissed the appeal itself as time-barred. On this point, this appeal will have to be allowed, the judgment of the lower appellate Court will have to be set aside and that of the trial Court will have to be restored.

24. In this view of the matter, I need not now express my views about the merits of the case though I think that the interference by the lower appellate Court in the decree of the trial Court was not warranted by the facts of the case. The property in suit consisted of sir fields in village Ambhori, Tahsil Multai, District Betul. The suit property belonged to Narayan Rao and his family. The last male holder Bapuji died in 1917 and his widow Radha Bai executed a lease-deed (Ex. Dt 3) on 1-11-1917 in favour of the defendants-respondents for a sum of Rs. 2,000/-.

It has been found that the alienation was made for payment of debts of Bapuji amounting only to Rs. 1100/-. The fields were given by Radha Bai to the defendants after reserving the sir and proprietary rights to herself. Radya Bai died on 18-12-1936, and on her death, Waman Rao, the nearest reversioner, became the owner of the property. On 11-4-1944, Waman Rao executed a deed parting with his proprietary rights in favour of the plaintiffs-appellants and the only question before the Courts, so far as this appeal is concerned, was : Whether the lease of sir fields executed by Radha Bai was a perpetual one?

It is contended that the sentence 'I have given over the fields for ever for cultivation' should be construed in favour of a perpetual lease. The trial Court did not accept this plea, but the lower appellate Court has accepted it. In my opinion, the question is covered by the decision of the Privy Council in Azizunnissa v. Tassaduk Hussain Khan, 28 Ind App 65 (PC), where their Lordships laid down that the words 'always or for ever, (hamesha)' in a grant are not inconsistent with limiting the interest given. It is to be borne in mind that the words are to be construed in the light of surrounding circumstances.

Radha Bai held only a life-estate and she must have intended that the grant would operate only for the life of the grantor. If the lessor had intended to create a heritable estate, nothing would have been easier than to add the oftused words clearly expressing such an intention. In the absence of any such words it is not proper to infer an intention that the lease was to be perpetual. Their Lordships of the Judicial Committee observed in Baboo Dhunput Singh v. Gooman Singh, 11 Moo Ind App 433 at p. 465 (PC) :

'If, on the one hand, it is improbable that the grantee should undertake such an obligation without some fixity of tenure and some assured and permanent interest in the lands, it is, on the other hand, equally improbable that the grantor should part for ever with all his interest in the improveable value of the lands.'

These observations were repeated with approval by their Lordships in Bilasmoni Dasi v. Sheopersad Singh, ILR 8 Cal 664 at p. 674 (PC). In view of there observations, the lease of 1917 cannot be held to be perpetual, and therefore, the decision in Wamanrao v. Ramchandra, ILR (1951) Nag 922: (AIR 1952 Nag 93) has no application to the facts of the instant case. The principle enunciated in Bholu v. Chhajjulalsa. 30 Nag LR 109 : (AIR 1933 Nag 378), of course, applied.

25. The result is that the appeal is allowedwith costs, the decree and judgment of the lowerappellate Court are set aside and those of thetrial Court are restored.


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