R.N. Misra, J.
1. This is a defendant'sappeal against the reversing decree of the learned Subordinate Judge. Aska in a suit for title, possession and permanent injunction.
2. It is not necessary to give the details of the litigation because the preliminary objection raised in the second appeal has to succeed on the following facts and ground. Three plaintiffs laid claim to joint title and possession and instituted the suit on 29-4-1965. Within a month of the filings of the suit Ganapati, the original plaintiff No. 2 died. A petition for substitution of the legal representatives in his place having been made to the trial court it was allowed on 19-7-1965. The decree which was eventually passed, however, did not give effect to the order of substitution and showed the name of the deceased Ganapati as the plaintiff No. 2. The suit was dismissed by the trial Court.
The same lawyer who had entered appearance for the original plaintiffs as also for the substituted legal representatives of the plaintiff No. 2 filed the appeal before the lower appellate court. He did not file a fresh vakalatnama. Instead he reported to the court by a memorandum accompanying the memorandum of appeal that he was appearing in the original suit for the plaintiffs. The title appeal was allowed ultimately giving rise to the second appeal in this Court at the instance of the defendants. In this Court sometime in 1989 the appellants raised a new contention with leave of the court that the title appeal was not maintainable on account of the fact that proper parties had not appealed and the decree of the trial court became final. It was therefore, not open to the lower appellate court to interfere with the decree of the trial court.
In spite of the fact that in 1969 such a petition was filed and additional grounds were asked to be taken, the respondents did not challenge the position until now. In fact the record of the trial court is so clear about the matter that the stand taken by the appellants does not admit of any dispute. When this appeal came UP for hearing yesterday Mr. Panda raised this preliminary objection, I was about to dispose of the appeal when Mr. Ramdas asked for deferring the matter till today. An application has now been filed purporting to be one under Section 153 C.P. C. and I am asked to direct amendment of the cause title of the memorandum of appeal of the lower appellate court. Reliance is placed upon five decisions in support of this application.
Mr. Ramdas relies upon the observations of the Supreme Court in AIR 1969 SC 1267 (Manohar Lal v. N.B.M. Supply Gurgaon) where the description of the plaintiff by a firm name was permitted to be altered and it was stated that rules of procedure are intended to be a handmaid to the administration of justice and a party cannot be refused just relief merely because of some mistake, neglieence inadvertence or even infraction of the rules of procedure. The court always gives leave to amend the pleadine of a party, unless it is satisfied that the party applying was acting mala fide, of that by his blunder, he had caused injury to his op-ponent which may not be compensated for bv an order of costs.
The next case relied upon bv Mr. Ramdas is AIR 1958 Madh Pra 307 (Dwarka Prasad v. Saiurabai). A Division Bench of the Madhya Pradesh High Court was considering an application for leave to appeal to the Supreme Court. It transpired that death had occurred during the pendency of the appeal before the High Court and substitution had also been made but the appellate decree erroneously showed the names of the dead parties. During the pendency of the application before the High Court for grant of leave the application was made and it was granted.
The third decision is one of this Court reported in AIR 1952 Orissa 168 (Mohan Prasad v. Ganesh Prasad). The facts show that the certified copy of the judgment and decree against which the appeal had been filed did not contain the names of some of the parties. Conseauently their names were not added in the memorandum of appeal. Subsequently the fact came to the knowledge of the counsel for the appellant and an application was made for adding them as Parties and an application under Section 5 of the Limitation Act was made. The circumstances in which the names were not added when the memorandum of appeal was filed were found to be constituting sufficient cause for entertaining the application under section 5 of the Limitation Act.
The next case cited is that of the Patna High Court reported in AIR 1967 Pat 360 (FB) (Abdul Gaffar v. Gayas Singh), In a suit under Order 1, Rule 8. C. P. C. the name of one of the parties was not in the memorandum of appeal. Its effect was considered by the Full Bench. Ordinarily in the absence of a finding that omission of one or two persons in whose favour leave is granted to represent a larger body under Order 1. Rule 8 C. P. C. has led to prejudice, the omission as such would not be material. Therefore, there would be no force available for the present contention from the Full Bench decision.
One more case reported In AIR 1925 Mad 1210 (Gopalakrishnayya v. Lakshmana Rao) was also cited in support of the very contention. As the facts of this case show an application under Section 153 C. P. C. was permitted to be entertained to amend the cause title and brine in the legal representatives of a party who had been substituted earlier. This appears to have been done in the court of appeal from the judgment where the defect had been noticed. The facts are not available from the reported decision and as such I am not in a position to appreciate the dictum laid down there.
3. In the present case some features which are tell-tale must now be noticed. The same counsel who was appearing for the original plaintiffs entered appearance on behalf of the legal representatives. The title appeal was filed by him. As such it must be assumed that he had full knowledge of the fact that there had been death of one of the plaintiffs and he was appearing for the legal representatives already in the suit. Ordinarily when an appeal is filed counsel tries to find out who are the proper parties to be added to the appeal either as appellants or as respondents. The counsel who filed the title appeal in this case was not required to file a fresh vakalatnama as he took advantage of a rule for practice obtaining in the subordinate courts of reporting that he had power for the parties in the litigation from out of which the appeal was taken. Merely because he was having that advantage the normal duty cast upon counsel filing an appeal could not be forsaken, He was duty bound to apply his mind at that stage to see that proper parties were impleaded.
The title appeal was heard on merits and ultimately the trial court's decree was reversed. During the entire period the title appeal was pending no action was taken for bringing the proper parties on record. At this belated stage on the basis of the decisions noted above I am not in a position to accept the contention of Mr. Ramdas. As has been indicated in the Supreme Court decision the principle that procedure is only a handmaid of justice and it cannot stand in the wav of dispensation of justice has its own limitation. Costs may be a panacea, but not in all circumstances. A situation has arisen as a consequence of the negligence of the plaintiffs-respondents who were appellants in the lower appellate court which cannot now be altered only on terms of costs. I would accordingly uphold the preliminary objection and hold that the title appeal out of which the present second appeal arises had not been duly constituted and as such was not maintainable.
The lower appellate court had no jurisdiction to interfere with the decree of the trial court. The second appeal consequently has to be allowed and the decree of the lower appellate court must be set aside and that of the trial court which had become final must be restored. In the peculiar circumstances of the case ends of justice would be properly served if parties are directed to bear their own costs throughoupt.
4. Leave prayed for is refused.