Skip to content


Ammukutty Amma and anr. Vs. Madhavi Amma - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKerala High Court
Decided On
Case NumberA.S. Nos. 409 and 410 of 1965
Judge
Reported inAIR1971Ker90
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 20
AppellantAmmukutty Amma and anr.
RespondentMadhavi Amma
Advocates: C.K. Sivasankara Panicker, Adv.
DispositionAppeal dismissed
Cases ReferredChockalingam v. Seethai Ache.
Excerpt:
.....parties - appellate court in exercise of its discretion refused to take action under such rule - appeal dismissed as not fit case to allow appellant to implead fresh parties. - - the trial court further found that the plaintiff had failed to establish that she had been willing and ready to perform her part of the contract and so was not entitled to perform specific performance. it is therefore clear that the appeal is not properly constituted and has to fail on that ground. the plaintiff whose suit had been dismissed against all the defendants failed to appeal against the decree in so far as it affected some of them and allowed the appeal as against them to become barred. the appellate court in exercise of its discretion refused to take action under the rule so as to..........civil procedure, 'where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be'. the dismissal of the suit, o. s. no. 329 of 1121, operated as a decision in favour of all the defendants in the suit. the reversal thereof operated against all of them and when in the second appeal the decree of the trial court was restored there was a decree in favour of all the defendants in the suit. in this appeal, the 3rd defendant alone has been made a party and the legal.....
Judgment:

Unnikrishna Kurup, J.

1. These appeals against second appeals arise from two suits. O. S. Nos. 329 and 340 of 1121 on the file of Munsiffs Court, Ettumanoor. O. S. No. 329 of 1121, from which A. S. No. 410 of 1965 arises, was filed for specific performance of an agreement to sell the plaint schedule property entered into by the 1st defendant in the suit with the plaintiff. The 1st defendant thereafter gifted the property to his wife, the 2nd defendant, and defendants 1 and 2 sold the property to the 3rd defendant. The prayer in the suit was to compel the 1st defendant to execute a sale deed in favour of the plaintiff on receipt of the amount stipulated to be paid under agreement to sell.

2. A. S. No. 409 of 1965 arises from 0. S. No. 340 of 1121. That was a suit filed for redemption by the 3rd defendant in O. S. No. 329 of 1121 against the plaintiff in that suit on the strength of a possessory mortgage for Rs. 225/-and the result of this suit was mainly dependent upon the suit for specific performance.

3. The trial Court held that time was the essence of the contract and since the plaintiff in O. S. No. 329 of 1121 had not paid the amount and demanded execution of the document within the time stipulated under the agreement to sell, the suit was not maintainable. The trial Court further found that the plaintiff had failed to establish that she had been willing and ready to perform her part of the contract and so was not entitled to perform specific performance. For both these reasons, the suit was dismissed by the trial Court. . As a consequence, O. S. No. 340 of 1121 was decreed by the trial Court for redemption,

4. In appeal, the Subordinate Judge while confirming the finding of the trial Court that the time stipulated in the agreement to sell was of the essence of the contract found that the plaintiff had been ready and willing to perform her part of the contract at all relevant time and so reversed the decision of the trial Court. As a natural consequence, the suit for redemption was dismissed.

5. Both matters were taken in second appeal and a learned Single Judge of this Court reversed the decisions of the Subordinate Judge in both the cases and held that the plaintiff in O. S. No. 329 of 1121 was not entitled to specific performance on the ground that she did not prove that she had been ready and willing to take the sale deed on payment of the balance amount stipulated. The learned Single Judge therefore set aside the decree for specific performance and restored the decree of the first court in O. S. No. 329 of 1121. So far as O. S. No. 340 of 1121 was conearned, the learned Single Judge noticed that the appeal had not been heard on merits by the Subordinate Judge, and therefore, directed it to be sent back to the Subordinate Judge for disposal on merits. On leave granted by the learned Single Judge, these appeals came up for hearing before a Division Bench, to which one of us was a party.

6. A preliminary objection was raised by the respondent in A. S. No. 410 of 1965 that the appeal has not been properly constituted in that the legal representatives of the 1st defendant, who were impleaded as supplemental defendants 4 to 8 in O. S. No. 329 of 1121 as also the 2nd defendant had not been made parties to the appeal and therefore the appeal was not sustainable as the necessary parties were not before the Court. In support of this contention, the learned counsel for the respondent relied on two decisions of this Court, namely, Gouri Amma v. Gopalakrishna Panicker, 1966 Ker LT 715 and Gopala Pilial v. Chellappan Pilial, 1966 Ker LT 1154 = (AIR 1966 Ker 317), where objections similar to those raised in these appeals had been upheld. For the appellant, it was contended that under Order XLI, Rule 20 the Court had jurisdiction to implead the necessary parties and that the appeal could not be dismissed straightway as ill-constituted. The Division Bench felt that this aspect had not been considered in the two decisions earlier cited and that it was necessary that it should be decided by a Full Bench. As a result, these appeals have come up before us.

7. In 0. S. No. 329 of 1121, the suit for specific performance, the 1st defendant was the person who had executed the agreement. He died during the pendency of the suit and his legal representatives were impleaded as additional defendants 4 to 8. The 2nd defendant in that suit was the 1st defendant's wife in whose favour the 1st defendant had executed a gift deed. The lower appellate Court decreed the suit on appeal by the plaintiff and thereupon the 3rd defendant filed the second appeal impleading the plaintiff alone as the sole respondent.

8. Under Order XLI, Rule 4 of the Code of Civil Procedure, 'where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be'. The dismissal of the suit, O. S. No. 329 of 1121, operated as a decision in favour of all the defendants in the suit. The reversal thereof operated against all of them and when in the second appeal the decree of the trial court was restored there was a decree in favour of all the defendants in the suit. In this appeal, the 3rd defendant alone has been made a party and the legal representatives of the 1st defendant, namely, defendants .4 to 8 and the 2nd defendant have been left out. If the appeals were 'to be allowed, it would affect only the 3rd defendant and it is patent that such a decision will give rise to conflicting views. In 1966 Ker LT 1154 = (AIR 1966 Ker 317) a Division Bench of this Court has ruled that in such circumstances, the appeal is not maintainable as the necessary parties are not on the party array. It is therefore clear that the appeal is not properly constituted and has to fail on that ground.

9. The question that arises for consideration then is whether this court in exercise of the powers under O. XLI, R, 20 should allow the appellant to implead further parties. The decision of the Privy Council in Chockalingam v. Seethai Ache. AIR 1927 PC 252 has been brought to our notice. In that case, plaintiff sued the first defendant and purchasers through him for setting aside a sale in favour of the 1st defendant. The sale deed was held valid as between the 1st defendant and the plaintiff and the suit was dismissed. In appeal, the plaintiff joined the subsequent purchasers as respondents but not the 1st defendant. The plaintiff whose suit had been dismissed against all the defendants failed to appeal against the decree in so far as it affected some of them and allowed the appeal as against them to become barred. The Appellate Court in exercise of its 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 plaintiff's failure to appeal against the decree in so far as it affected them.

It was held that even 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. there is no sufficient reason for interfering with the refusal of the Appellate Court to do so in such a case. The following observations from the judgment of the Privy Council are relevant and they are therefore extracted.

'As regards the rest of the case, owing to the plaintiff's failure to make these defendants respondents within the time limited for filing an appeal, these appeals, so far as they are concerned, are prima facie barred by limitation, and they are entitled to hold the decree in their favour, which as pointed out by their Lordships in a very recent case, is a substantive right of a very valuable kind of which they should not lightly be deprived. When parties are added by the Court after the institution of a suit under Order I. Rule 10(2). Section 22, 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 party 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 his 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 wore right in rejecting his application under this rule.'

10. Counsel for the appellant has not been able to show why we should exercise our discretion in favour of the appellant to deprive valuable rights which have accrued to defendants 2 & 4 to 8 in the suit. We do not think that this is a fit case, even assuming that we have power to implead the new parties, to allow the appellant to implead fresh parties at this stage.

11. The appellants in A. S. No, 409 of 1965 have filed a petition, C. M. P. No. 11803 of 1970, praying that they may be permitted to raise an additional ground claiming benefits under the provision of Act I of 1964 as amended by Act 35 of 1969; which came into force only on 1-1-1970, that is, after the filing of this appeal. The appellants had obviously no opportunity to claim benefits under the Land Reforms Act earlier. By the decision of the learned Single Judge, this appeal has been directed to be heard by the Subordinate Judge on merits. We direct the Subordinate Judge to receive the Additional ground and consider whether the appellants are entitled to reliefs under Act I of 1964 as amended by Act 35 of 1969 when disposing the appeal.

12. In the result, both the appeals arc dismissed with costs, subject to our observations regarding A. S. No, 409 of 1965.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //