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Firm Munna Lal Raunaq Ram of Nabha and anr. Vs. Firm of Lachhmandass Devraj and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 270(P) of 1954
Judge
Reported inAIR1959P& H49
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 20
AppellantFirm Munna Lal Raunaq Ram of Nabha and anr.
RespondentFirm of Lachhmandass Devraj and anr.
Appellant Advocate D.S. Nehra, Adv.
Respondent Advocate Atma Rama and; Babu Ram, Advs.
DispositionAppeal allowed
Cases ReferredLabhu Ram v. Ram Partap
Excerpt:
.....on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept..........in the appeal filed by the defendants dev raj alone was impleaded as a respondent.3. before the learned district judge a preliminary objection was raised by the plaintiffs that the appeal filed by the defendants was incompetent inasmuch as lachhman das had not been made a party to the appeal. this objection was sought to be met by praying that lachhman das might be permitted to be impleaded and the delay condoned because the defendant-appellants were misled by the omission of lachhman das's name both in the judgment and the decree of the trial court. it was further contended that since both dev raj and lachhman das had instituted a suit styling themselves as managers of joint hindu family firm it was open to dev raj alone to file the appeal. the learned district judge upheld the.....
Judgment:

I.D. DUA, J.

1. Dev Raj plaintiff-respondent originally filed a suit for the recovery of Rs. 3,426/14/9 against Shri Jatinder Kishore and Raunaq Ram. Nauhar Chand was impleaded as a pro forma defendant. It is not necessary to state in detail the facts on which the plaintiff claimed his relief. Suffice it to say that in the suit an objection was raised by the defendants that Lachhman Das was a necessary party whereupon the plaint was amended after obtaining permission from the trial Court and Lachhman Das was also added as a plaintiff. The suit thereupon was by Dev Raj and Lachhman Das plaintiffs as proprietors of joint Hindu family firm Lachhman Das Dev Raj. A decree for a sum of Rs. 2,909/14/9 was passed in favour of the plaintiffs with proportionate costs.

2. Jatinder Kishore on behalf of the firm Munna Lal Raunaq Ram and Raunaq Ram defendants preferred an appeal to the Court of the District Judge, Kapurthala, with respect to the decree for Rs. 2,909/14/9, and the plaintiffs filed cross-objections with regard to Rs. 500/- disallowed by the trial Court. It appears that in the judgment and the decree-sheet the name of Dev Raj alone was mentioned as plaintiff decree-holder, with the result that in the appeal filed by the defendants Dev Raj alone was impleaded as a respondent.

3. Before the learned District Judge a preliminary objection was raised by the plaintiffs that the appeal filed by the defendants was incompetent inasmuch as Lachhman Das had not been made a party to the appeal. This objection was sought to be met by praying that Lachhman Das might be permitted to be impleaded and the delay condoned because the defendant-appellants were misled by the omission of Lachhman Das's name both in the judgment and the decree of the trial Court. It was further contended that since both Dev Raj and Lachhman Das had instituted a suit styling themselves as managers of joint Hindu family firm it was open to Dev Raj alone to file the appeal. The learned District Judge upheld the preliminary objection and dismissed the appeal.

4. The cross-objections were, however, disallowed by the learned District Judge on the merits. It is against this decree dismissing the defendant's appeal on preliminary objection that the present regular second appeal has been preferred to this Court.

5. The learned counsel for the appellants submits that where the name of a party is omitted from the judgment and decree-sheet by the Court or by the officer preparing the decree-sheet and the appellant is misled by such omission from impleading the party whose name has been omitted, then it is open to the Court to -- and in the interest of justice the Court should -- allow the party so omitted to be impleaded and to condone the delay. In support of his submission he has cited the following rulings of the Lahore High Court:

Amarsingh v. Kanshi, AIR 1924 Lah 629 (A); Jalal Din v. Karim Bakhsh, AIR 1930 Lah 295 (B); Bishna v. Sucha Singh, AIR 1934 Lah 402 (2) (C); & Shanti Lal v. Firm Hira Lal Sheo Narain, AIR 1941, Lah 402 (D). (Division Bench ruling). The learned counsel for the respondents has, on the other hand, cited a Full Bench decision of the Lahore High Court reported as Labhu Ram v. Ram Partap, AIR 1944 Lah 76 (E), which expressly overruled AIR 1941 Lah 402 (D) and held that if a defendant or a party to the suit is not impleaded in appeal till after the limitation has expired, then the provisions of Order XVI Rule 20 of the Code of Civil Procedure cannot be invoked; nor does the question of applying Section 5 of the Limitation Act arise in such a case. It was further held that it is not in the Court's discretion to add any person as a party to appeal in such circumstances. The learned counsel for the appellants tried to urge that the law laid down by the Full Bench was not good law and that it required reconsideration.

6. In my opinion it is not necessary to go into this matter because the question can and should be looked at from another point of view. The decree of the trial Court purports to be in favour of Dev Raj alone and Lachhman Das has not been shown as a decree-holder in the decree-sheet. In the heading of the judgment also the name of Dev Raj alone occurs as the plaintiff. Under the law it is the decree that is appealable and the defendants merely wanted to get rid of the decree as framed or drawn up by the trial Court; they were aggrieved by this decree and not by what the decree would have been if correctly framed -- correctly according to the plaintiff. In order, therefore, to get rid of this decree the only necessary party as a respondent was Dev Raj. It was not at all necessary for them to implead Lachhman Das because the decree-sheet did not show him as one of the decree-holders. In these circumstances I do not understand how the appeal as preferred in the Court of the learned District Judge was defective or incompetent.

7. Dewan Atma Ram, the learned counsel for the respondent, has attempted to argue that because the defendants knew that Lachhman Das had also been later impleaded as a plaintiff along with Dev Raj, therefore, the defendants should have known that the decree was intended to have been passed both against Dev Raj and Lachhman Das, and that tile defendants should in the circumstances have impleaded both of them as respondents.

8. I regret, I cannot agree with this contention. As I nave said above, the only decree from which the defendants felt aggrieved was the decree formally passed and drawn up in favour of Dev Raj by the trial Court, and, in order to attack this decree, Dev Raj decree-holder alone was a necessary party. If and when Lachhman Das chooses to get the decree amended by getting his name added as a decree-holder, the judgment-debtors would be free to seek their remedy which the law permits them, but so long as that contingency does not arise it is not at all incumbent on the judgment-debtors to implead Lachhman Das in their appeal against the decree which is only in favour of Dev Raj.

9. The appeal is, in the circumstances, allowed the judgment and decree of the learned District Judge dismissing the defendants' appeal on the preliminary grounds are set aside and the case is sent back to the learned District Judge for decision in accordance with law in the light of what has been stated above.

10. The cross-objections filed by the plaintiffs having been disallowed on the merits, that order of the learned District Judge would stand.

11. The Parties are directed to appear before the lower appellate Court on the 27th October, 1958, when they will be given another date for the hearing of the appeal in that Court. Parties are to bear their own costs in this Court.

D. Falshaw J.

12. I agree.


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