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Shantilal Vs. Farid Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 73 of 1958
Judge
Reported inAIR1962Raj99
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96
AppellantShantilal
RespondentFarid Khan and ors.
Appellant Advocate Kishor Singh, Adv.
Respondent Advocate P.C. Mathur, Adv. for Non-Application Nos. 1 to 3
DispositionRevision allowed
Cases ReferredSadhu Ram v. Mohammad Ali
Excerpt:
.....judge, bikaner, who dismissed the plaintiff's appeal merely because the plaintiff-applicant failed to implead one of the defendants in the appeal. there is nothing like a natural or inherent right residing in a litigant enabling him to prefer an appeal. under the code of civil procedure this right is available, broadly speaking, if two conditions are satisfied. so far as the six other defendants were concerned, could be defeated merely on the ground that he had chosen to abandon his right of appeal against the third defendant. his claim is fully satisfied and he has to realise the claim from the defendant against whom the decree has been made. ' should this defendant against whom the decree has been fully passed come up in appeal the plaintiff then would have a right to argue that the..........khan nabu khan, farid khan joya, (sic) khan, nurey khan, fatehchand and bajranglal. the civil judge decreed the suit against joya farid khan, defendant no. 3 alone and that too in the sum of rs. 340/-. he dismissed the suit against the remaining six defendants. the plaintiff preferred an appeal before the district judge, bikaner, impleading only these six remaining defendants as respondents. he did not implead joya farid khan as a party to this appeal. at the hearing an objection was taken on behalf of the respondents that the appeal must be dismissed due to the non-joinder of joya farid khan. the learned district judge, bikaner, relying on sadhu ram v. mohammad ali, air 1950 him pra 30 upheld the objection of the respondents and dismissed the appeal. the applicant has now come up.....
Judgment:
ORDER

B.P. Beri, J.

1. This revision application is directed against the judgment and decree of the District Judge, Bikaner, who dismissed the plaintiff's appeal merely because the plaintiff-applicant failed to implead one of the defendants in the appeal.

2. The plaintiff-applicant had instituted a suit before the Civil Judge, Churu, for the recovery of a sum of Rs. 418/-. There were as many as seven defendants in the said suit. They were Farid Khan Nabu Khan, Farid Khan Joya, (sic) Khan, Nurey Khan, Fatehchand and Bajranglal. The Civil Judge decreed the suit against Joya Farid Khan, defendant No. 3 alone and that too in the sum of Rs. 340/-. He dismissed the suit against the remaining six defendants. The plaintiff preferred an appeal before the District Judge, Bikaner, impleading only these six remaining defendants as respondents. He did not implead Joya Farid Khan as a party to this appeal. At the hearing an objection was taken on behalf of the respondents that the appeal must be dismissed due to the non-joinder of Joya Farid Khan. The learned District Judge, Bikaner, relying on Sadhu Ram v. Mohammad Ali, AIR 1950 Him Pra 30 upheld the objection of the respondents and dismissed the appeal. The applicant has now come up in revision to this Court.

3. I have heard Shri Kishore Singh for the applicant and Sri P. C. Mathur for the non-applicants.

4. What is the effect of not joining a defendant in an appeal, if no relief is claimed against him? This is the short question which has to be answered. There is nothing like a natural or inherent right residing in a litigant enabling him to prefer an appeal. A right of appeal must be conferred by Statute. Under the Code of Civil Procedure this right is available, broadly speaking, if two conditions are satisfied. Firstly, there must be a decree conclusively determining the rights of the parties and secondly, the party appealing must have been adversely affected by such determination.

The plaintiff's right qua the six defendants in the case before me were conclusively determined to the effect that the plaintiff was not entitled to any decree against them and the six defendants were not liable to pay anything to him. The decision adversely affected the plaintiff. Thus the plaintiff had a right of appeal against the judgment and decree of the Civil Judge, Chum. He had also a right of appeal against Joya Farid Khan in so far as his claim against this defendant was partly disallowed. There is no doubt that the plaintiff could waive his right of appeal against the third defendant to the extent the plaintiff's claim was disallowed. Since he has not claimed any relief against the third defendant Joya Farid Khan, it is obvious that the plaintiff did rest content with what had been granted to him against this defendant. It is difficult to comprehend as to why the plaintiff's right to appeal against the dismissal of his claim; so far as the six other defendants were concerned, could be defeated merely on the ground that he had chosen to abandon his right of appeal against the third defendant.

5. The view taken by Bannerji J. C., in the Himachal Pradesh case, already referred above, adopts the following line of reasoning. Let me quote the learned Judge:

'When there are two or more defendants, it may happen that a suit is dismissed against one of them or in other words, the decree on the face of it may be entirely in favour of the plaintiff. Can the plaintiff appeal against that decree without making the defendant a party against whom the suit was decreed in full, on the sole ground that the other defendant against whom the suit has been dismissed should also be held liable for his claim. He cannot.'

With great respect I am unable to agree with the view taken by the learned Judge. The reason which prevailed with the learned Judge was that such a decree

'impliedly negatives the right claimed by him against the other defendant. His claim is fully satisfied and he has to realise the claim from the defendant against whom the decree has been made.'

Should this defendant against whom the decree has been fully passed come up in appeal the plaintiff then would have a right to argue that the decree ought to have been passed against other defendants as well. In the opinion of the learned Judge the mere statement in the decree that the suit has been dismissed against other defendants does not give the plaintiff a right of appeal against these defendants because it is not a decree. It is a part of the statement of the case. If cannot be executed by such defendants against whom the suit has been negatived.

6. The above reasoning in my opinion, does not give full effect either to the expression decree as understood under the Civil Procedure Code or under the provisions of Section 96. A decree, as has been defined in Section 2(2) means

'the formal expression of an adjudication which, so far as regards the Courts expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit..........'

Section 96 provides that unless otherwise expressly provided in the Civil Procedure Code or in any other law in force,

'an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court, authorised to hear appeals from the decisions of such Court.'

In so far as the dismissal of the suit of the plaintiff is concerned against some of the defendants, it is a decree which conclusively determines the right between the plaintiff and such defendants. It is a decree and Section 96 provides an appeal against it. The plaintiff's right to agitate against this judgment and decree does not depend on the unsuccessful defendant's preferring an appeal against the decree passed. The right resides in the plaintiff whose claims have been conclusively determined and adverse to him.

7. The learned Judge concludes that if out of a total claim of Rs. 2,260/- a decree is passed for Rs. 2259/15/11 i.e., one pie less than the claim against one defendant and the suit is dismissed against others then in such a case the plaintiff will have a right of appeal against all the defendants but not if the total claim of the plaintiff was decreed only against one defendant and dismissed against others. The logical corollary from such a proposition would appear to be that if a plaintiff sues 4 defendants 3 of whom are persons of substance and 4th a man of straw a decree passed against the 4th in full becomes conclusive in so far as the plaintiff is concerned and he cannot appeal against the other 3 defendants. Plaintiffs decree may not be of any worth to him but he has no right of appeal unless a part of the claim against the 4th defendant was disallowed.

While I am unable to appreciate the principle on which this distinction has been made by the learned Judge the case before me is of a kind which falls even within the exception conceded in the Himachal Pradesh case. On this ground also this Himachal Pradesh case does not appear to apply to the circumstances of the case before me.

8. In my view, the learned District Judge failed to exercise the jurisdiction vested in him by law and this revision, therefore, must succeed. I set aside the order passed by the learned District Judge and remand this case to the District Judge, Bikaner, who may dispose of the appeal in accordance with law. The applicant is entitled to his costs of this revision.


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