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inder Nath Vs. Ram Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Appeal No. 3899 of 1967 and Regular First Appeal No. 147D of 1965
Judge
Reported in4(1968)DLT519
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10
Appellantinder Nath
RespondentRam Dass and ors.
Advocates: A.L. Sehgal and; Madan Bhatia, Advs
Cases ReferredSm. Salia Bala v. Sm. Nirmala Sundari Dassi and Inder Mathews Gates
Excerpt:
.....to be transposed to the side of the appellant-absolute right of the appellant to withdraw his appeal--appeal allowed to be withdrawn but nto dismissed--instead the respondent transposed to the side of the appellant and appellant also directed to be imp leaded as respondent power of high court to make suitable order under order 1 rule 10 c.p.c.; that the power of high court to make suitable order under order 1, rule 10 c.p.c. without application of either party, has been preserved by this very provision so that the court may be able to effectively and completely adjudicate upon and settle all the questions involved in the case.; where an appellant made an application for withdrawal of his appeal, but prior thereto respondent no. 5 applied for seeking his transposition from the array..........for the substitution of his name in place of respondents nos. 1 to 4 on the averment that the decree appealed from had been assigned in his favor on 10-8-1967 by the legal representatives of respondent no. 1 and by the respondents nos. 2 to 4 for a consideration of rs. 9,000.00.(3) before us shri a. l. sehgal has very strongly argued that this court should ignore the toher two applications and should firstdispose of c.m. no. 214 of 1968 presented in this court on 22-4-1968 because the appellant has an absolute and unqualified right to withdraw his appeal whenever he choses and even if toher applications of prior date are pending adjudication in this court, the application for withdrawing the appeal must be given priority, over all toher applications and the appeal should be.....
Judgment:

I.D. Dua, J.

(1) This order will dispose of Civil Miscellaneous 3899 of 1967, 21 of 1968 and 214 of 1968 in R.F.A. No. 147-D of 1965. Dealing first with Civil Miscellaneous 3899 of 1967, this application was presented in this court by Shri Kartar Nath, respondent No. 5, R.F.A. No. 147-D of 1965, under Order 1 Rule 10 read with Section 107 sub-section (1) and Section 151, Civil Procedure Code, for transposing him from the array of respondents to that of appellants in the appeal. The application is dated 31/10/1967 and was apparently presented in this court on the same date. According to the averments made in this application, the appellant, Shri Inder Nath, along with respondents 5 and 6 (Shri Kartar Nath and Shri Pashori Lal) instituted a suit for dissolution of partnership and rendition of accounts against the defendants. In the suit, a preliminary decree was passed on 8-11-1965 declaring the partnership to have been dissolved on 1-8-1953. The trial court ultimately awarded to the defendants (respondents No. 1 to 4 in this appeal) a decree for Rs. 12,941.00 with costs against the plaintiffs. Inder Nath has been described in this application to be a cousin of respondent No. 6 and is also stated to be related to Shri Kasturi Lal, son of respondent No. 5. The appeal presented by Shri Inder Nath in his own name was, so proceeds the application, understood by all the parties interested to be, for the common benefit and prtoection of the Judgment- debtors. Contribution by respondent No. 5 towards the expenses of the appeal has also been assessed. Execution of the decree having been sued out by respondent No. 1, the appellant on or about 22-8-1966 applied for staying the execution proceedings, but the same was resisted by the decree-holders. One Hira Lal, also applied in August, 1967 for execution of the impugned decree in the court below on the averment that he had purchased that decree for a sum of Rs. 9,000.00 from the legal representatives of respondent No. 1 and from respondents Nos. 2 and 4. According to respondent No. 5, the appellant has colluded with respondents Nos. 2 to 4 and with the legal representatives of respondent No. 1 and is trying to take undue advantage to the prejudice of respondent No. 5 through the instrumentality of Hira Lal, who is the applicant's own nominee. On these averments, it has been prayed that respondents No. 5. be transposed from the array of respondents to that of the appellants.

(2) On 22-4-1968, the appellant through his counsel Shri A. L. Sehgal presented an application (C. M. No. 214 of 1968) under Order 23, Rule 1, read with Section 151 Civil Procedure Code, for withdrawing the appeal unconditionally. In the meantime, on 17-1-1968, Hira Lal had applied (C. M. No. 21 of 1968) to this court under Order 22, Rules 10 and 11 read with Section 151, Civil Procedure Code, for the substitution of his name in place of respondents Nos. 1 to 4 on the averment that the decree appealed from had been assigned in his favor on 10-8-1967 by the legal representatives of respondent No. 1 and by the respondents Nos. 2 to 4 for a consideration of Rs. 9,000.00.

(3) Before us Shri A. L. Sehgal has very strongly argued that this court should ignore the toher two applications and should firstdispose of C.M. No. 214 of 1968 presented in this court on 22-4-1968 because the appellant has an absolute and unqualified right to withdraw his appeal whenever he choses and even if toher applications of prior date are pending adjudication in this court, the application for withdrawing the appeal must be given priority, over all toher applications and the appeal should be dismissed forthwith, as withdrawn, ntowithstanding the suggestion of the grave prejudice it may cause to these toher litagating parties whose applications are before the court and which may become infructuous. In support of his submission, Shri Saigal has placed reliance on Bijayananda Patnaik v. Satrughna Sahu and tohers (1) and specific reliance has been placed on the following observations at page 1571:

(4) We have already said that sub-rule (1) gives absolute power to the plaintiff to withdraw his suit or abandon part of his claim against all or any of the defendants, and where an application for withdrawal of a suit is made under O.23, R. 1 (1), the Court has to allow that application and the suit stands withdrawn. It is only under subrule (2) where a suit is nto being withdrawn absolutely but is being withdrawn on condition that the plaintiff may be permitted to institute a fresh suit for the same subject- matter that the permission of the court for such withdrawal is necessary. The provisions of O.23 R. 1 (1) and (3) also apply in the same manner to withdrawal of appeals.' A little lower down, the court considered it unnecessary to decide for the purpose of that case whether the absolute right of the appellant to withdraw an appeal unconditionally flows from section 107 sub-section(2) or is an inherent right of the appellant on the analogy of Order 23 Rule 1(1). The court, however, felt no doubt that an appellant had the right to withdraw his appeal unconditionally and if he made such an application to the court, the same had to be granted. As against this submission, Shri Bhatia, the learned counsel for respondent No. 5 has submitted that even though the appellant may have an absolute right to withdraw the appeal, nevertheless if his prior application is pending for seeking transposition of his client from the array of respondents to that of the appellants, then his application must first be decided and thereafter suitable orders be made permitting the appellant to withdraw his appeal.

(5) In our opinion, in circumstances like the present, it is for the court to see whether or nto the interests of justice and equitable considerations demand that the application of respondent No. 5 for transposing him as an appellant be decided before deciding the appellants' application for withdrawing his appeal. Giving due weight to the averments made by the parties in their respective applications, we are definitely of the view that it would be more just and equitable if the application of respondent No. 5 which is prior in time is decided first.

(6) This prayer has been opposed by Shri Saigal on the sole ground that since his client is the only appellant and he has already applied for withdrawing his appeal, his application would become infructuous if respondent No. 5 is allowed to be imp leaded as a coappellant and if his name is scored out from the array of respondents. He has also submitted that having borne the entire expenses of the appeal himself, he is the sole master of the appeal and no interference with his desire to withdraw the appeal should be permitted by this court at the instance of respondent No. 5.

(7) Shri Bhatia, on behalf of his client, it -may be pointed out, undertakes to pay his share of the expenses in the matter of court fee. After considering the respective contentions of the parties, we are inclined to allow the application for transposing respondent No. 5 as an appellant on the condition that he reimburses the appellant by paying him half the amount of court fee affixed on the appeal. In so far as the expenses in engaging the counsel are concerned, we do nto think it would be fair to impose on respondent No. 5 any liability in this respect. Coming now to the appellant's prayer for withdrawing the appeal, we agree with Shri Saigal that he has a right to withdraw himself from this appeal. The question however, arises if it is necessary that he should be directed to be imp leaded as a respondent. Order 1 Rule 10, Civil Procedure Code, may in this connection be reproduced:

'10(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any toher person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to be the Court to bejust, order that the name of any party improperly, joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. (3) No person shall be added as plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. (4) Where a defendant is added, the plaint shall, unless the Court toherwise direct, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. (5) Subject to the provisions of the Indian Limitation Act, 1877, section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.'

(8) The power of the court to make suitable orders without application of either party seems to us to be preserved by this provision, so that the court may be able to effectually and completely adjudicate upon and settle all the questions involved in this appeal. We gave ntoice to the parties to address us whether arguments, they considered proper, on the question of the exercise of this Court's suo mtou power in adding Inder Nath appellant as a respondent pursuant to his withdrawal from the appeal. Shri A. L. Sehgal opposed it principally on the grounds on which he wanted his appeal to be withdrawn without respondent No. 5 being imp leaded as a co-appellant. In the alternative, he claims costs for impleading him as a respondent. We are unable to find any cogent ground for allowing costs to him in this connection. Indeed his unsuccessful opposition might well have meant an order of costs against him, but on the peculiar facts and circumstances of this case, we do nto propose to make any order as to costs against any party. We accordingly allow the appellant in the circumstances to withdraw himself from the appeal, but direct his name to be added as a respondent. Shri Bhatia, has in this connection drawn our attention to Sm. Salia Bala v. Sm. Nirmala Sundari Dassi and Inder Mathews Gates v. Money in support of the submission that this court's power to implead Inder Nath as respondent No. 5 are very wide and should be invoked if the interests of justice so demand.

(9) This brings us to C. M. No. 21 of 1968 in which Hira Lal has applied for being substituted in place of respondents Nos. 1 to 4. As respondents 1 to 4 have no objection to Hira Lal being imp leaded in his capacity as an assignee of the decree, we grant his prayer and implead him as one of the respondents.

(10) The question whether respondents 1 to 4 should be removed, has to be considered after hearing the new appellant Kartar Nath. It would thus be open to the parties interested to apply for their removal which will be duly considered.

(11) We may at this stage point out that Hira Lal's application has nto so far been heard at the mtoion stage. His counsel, however, has been present throughout the proceedings and has indeed even been heard by us on his oral request in opposition to the application of respondent No. 5 and in support of the position taken by Inder Nath appellant and the only person who is in the opposition camp is respondent No. 5. In the circumstances without any formal order of ntoice at the mtoion stage, we have allowed Hira Lal's application and have imp leaded him as one of the respondents. If and when respondents Nos. 1 to 4 want to be struck off from the array of respondents, the same will be considered after ntoice to all the parties interested. There would be no order as to costs-in any one of the applications.


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