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Jagan Singh and anr. Vs. Mst. Panni and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 328 of 1949
Judge
Reported inAIR1954P& H20
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 20
AppellantJagan Singh and anr.
RespondentMst. Panni and ors.
Appellant Advocate P.C. Pandit, Adv.
Respondent Advocate Roop Chand, Adv.
DispositionAppeal dismissed
Cases ReferredLabhu Ram v. Ram Partap
Excerpt:
.....if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 2. the plaintiffs appealed and failed to implead one of the defendants aje ram singh. there the plaintiffs' suit had been decreed and the defendants had appealed, but they failed to implead three of the plaintiffs-decree-holders. therefore it is clear that the appeal against all the respondents must fail......this decision.3. two points have been raised before me. in the first place it is urged that the learned district judge acted wrongly in refusing to implead aje ram singh and interpreted the provisions of order 41 rule 20, civil p. c., wrongly. the learned district judge followed in the main a full bench decision of the lahore high court reported as -- 'labhu ram v. ram partap', air 1944 lah 76 (fb) (a). the facts in that case were exactly similar to the facts in the present case. there the plaintiffs' suit had been decreed and the defendants had appealed, but they failed to implead three of the plaintiffs-decree-holders. an application under order 41, rule 20, civil p. c. was made but the district judge refused to entertain this application. a full bench of the lahore high court held.....
Judgment:

Khosla, J.

1. This is a somewhat unfortunate case. The plaintiffs brought a suit seeking to correct an entry in the revenue records. The plaintiffs were shown owners of 1/5th of land held by them jointly with other members of their family. According to the plaint, they were entitled to 1/3rd. There were four defendants in the case and the suit of the plaintiffs was dismissed. One of the issues that arose in the case was whether the plaintiffs' ancestor had not been born of a duly wedded wife. The plaintiffs' claim was based on the fact that their ancestor was born in wedlock and therefore they represented one of three lines of descent. The defence was that the plaintiffs' ancestor was not born of a lawfully wedded wife and therefore they were not entitled to a full 1/3rd share. This point was decided against the plaintiffs.

2. The plaintiffs appealed and failed to implead one of the defendants Aje Ram Singh. At the time of the hearing of the appeal the plaintiffs sought the permission of the Court to add Aje Ram Singh under the provisions of Order 41 Rule 20, Civil P. C. Limitation for filing an appeal against Aje Ram Singh had expired and the District Judge declined to grant the prayer of the plaintiffs. He then proceeded to dismiss the appeal on the ground that one of the defendant-respondents not having been impleaded the appeal against him could not be allowed and as the rights of the absent respondent were joint with the respondents who had been impleaded the appeal must be dismissed 'in toto'. The plaintiffs have appealed against this decision.

3. Two points have been raised before me. In the first place it is urged that the learned District Judge acted wrongly in refusing to implead Aje Ram Singh and interpreted the provisions of Order 41 Rule 20, Civil P. C., wrongly. The learned District Judge followed in the main a Full Bench decision of the Lahore High Court reported as -- 'Labhu Ram v. Ram Partap', AIR 1944 Lah 76 (FB) (A). The facts in that case were exactly similar to the facts in the present case. There the plaintiffs' suit had been decreed and the defendants had appealed, but they failed to implead three of the plaintiffs-decree-holders. An application under Order 41, Rule 20, Civil P. C. was made but the District Judge refused to entertain this application. A Full Bench of the Lahore High Court held that in a case of this type, the plaintiffs who had not been impleaded could not be said to be interested parties and that the District Judge had discretion in impleading them. The appeal was, on that ground, dismissed. It is quite clear that the decision of the trial Court had become final in so far as Aje Ram Singh was concerned. The limitation for filing an appeal against him had also expired, and whether the learned District Judge had discretion in the matter or not he could not be said to have acted wrongly in refusing to implead Aje Ram Singh. But apart from the question of discretion I am convinced that Aje Ram Singh can no longer be said to be an interested party since the decision of the trial Court in his favour was inalterable and not open to appeal. In the circumstances, the learned District Judge acted rightly in refusing to implead Aje Ram Singh.

4. The second point urged was that the absence of Aje Ram Singh could not defeat the appeal against the other respondents, but in considering this matter the principle of abatement applies. The rights of Aje Ram Singh are joint with the rights of the other respondents even though Aje Rani Singh's share is a definite specified one. If the appeal against Aje Ram Singh is dismissed and the appeal against the other respondents is allowed, there will be two contradictory judgments on the issues arising in the case. Where the rights of parities are joint the appeal in a case of abatement abates 'in toto' and not in part. Therefore it is clear that the appeal against all the respondents must fail.

5. For these reasons, this appeal fails and I dismiss it with costs.


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