1971 Supreme(Gau) 42

Manipur High Court
R. S. BINDRA, J.
Henjangam Kuki
Versus
Taichung Tangkhul
Second Appeal No.21 of 1969
Decided On : 30-10-1971

A person who is deemed to be a party under O.1, R.8, and for the purposes of Sec.11, Explanation VI, Civil P.C, leave to appeal could be granted to him by the appellate Court in an appropriate case if the decision rendered by the subordinate Court adversely affects him.

Headnote:

CIVIL PROCEDURE CODE - O.1, R.8 - REPRESENTATIVE SUIT - APPEAL - RIGHT TO FILE - PERSON REPRESENTED - SUBSTITUTION OR ADDITION AS APPELLANT - POWER OF APPELLATE COURT.

Fact of the Case:

Punchungleng, the Khullakpa of village Keihao Tangkhul, filed a suit for declaration of title to and for possession of the properties described in Schedules A and B, appended to the plaint, against Yamkhotinthang, the chief of village Keihao Heinjang. Punchungleng sued and Yamkhotinthang was sued, it may be mentioned at the outset, in their personal as well as representative capacities, each representing the residents of his respective village. The necessary permission of the Court under Rule 8 of Order 1, Civil P.C., was properly secured by Punchungleng. The defendant Yamkhotinthang died during the pendency of the suit with the consequence that Punchungleng moved an application in the trial Court on 7th September 1964 praying that the two sons, Letkhai and Tungkhothang, of the deceased defendant be brought on the record. The trial Court passed an order on the same day bringing only Tungkhothang on the record as representative of his deceased father. The suit ended in course of time in judgment dated 19-2-1966 by which the claim respecting the properties mentioned in the Schedule B was decreed while that pertaining to properties mentioned in Schedule A was dismissed. Punchungleng having felt aggrieved with the partial dismissal of his suit filed Appeal No.25 of 1966 in the Court of District Judge. Since Tungkhothang, the son of deceased Yamkhotinthang, did not to file an appeal challeng irespecting land mentioned probably for the reason that student at Delhi in those days could not appreciate the implications of the decree, it was Henjagam, a younger brother of Yamkhotinthang and uncle of Tungkhothang, who filed Appeal No.19 of 1966 in that respect. Henjagam mentioned in his memorandum of appeal that he had the right to file the appeal in his capacity as the acting Chief of the village, and also for the reason that his nephew Tungkhothang was out of Manipur in connection with his studies. Another contention raised by him was that he was highly interested in the outcome of the litigation and so he had filed the appeal in his own right, besides as a representative of his co-villagers.

Finding of the Court:

The court held that Henjagam had the right to file the appeal and that the application for substitution of his name as appellant by Tungkhothang or by the addition of the latter as a co-appellant with him had also been wrongly rejected. The court further held that the Additional District Judge failed to exercise jurisdiction that vested in him by dismissing Henjagam's application and quashed the judgment and decree by which his Appeal No.19 of 1966 was dismissed.

Issues: 1. Whether Henjagam had the right to file the appeal? 2. Whether the application for substitution of Henjagam's name as appellant by Tungkhothang or by the addition of the latter as a co-appellant with him had been wrongly rejected?

Ratio Decidendi: 1. The court held that Henjagam had the right to file the appeal because: a. Yamkhotinthang was sued against not merely in his individual capacity but also as a representative of his co-villagers. b. Tungkhothang, who was brought on the record on the death of Yamkhotinthang and was allowed to defend the suit, failed to take any steps for assailing the decree passed by the trial Court in favor of punchungleng respecting properties mentioned in Schedule B. c. Henjagam, the brother of the deceased Yamkhotinthang and the acting Chief of the village, had the necessary authority to file an appeal if only because his individual right to the properties involved was in jeopardy and none was out to assail the decree of trial Court. d. The court relied on the Privy Council judgment in V. Venkatanarayana v. Subbammal, AIR 1915 PC 124, which held that the right to sue survives in a representative suit and that the next presumable reversioner is entitled to continue the action instituted by the deceased plaintiff. 2. The court held that the application for substitution of Henjagam's name as appellant by Tungkhothang or by the addition of the latter as a co-appellant with him had been wrongly rejected because: a. Sub-rule (1) of Rule 10 of Order 1 of the Code provides that where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been insiitutad 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 other person to be substitutad or added as plaintiff upon such terms as the Court thinks just. b. This sub-rule when read with sub-section (2) of S.107 of the Code would authorise the Appellate Court to exercise the powers mentioned therein respecting an appeal.

Final Decision: The court allowed Revision No.26 of 1969 as also Second Appeal filed by Henjagam, set aside the order dismissing Henjagam's application dated 13th of November 1968 and quashed the judgment and decree by which his Appeal No.19 of 1966 was dismissed, and remanded the application as well as the appeal to the Court of Additional District Judge for deciding both of them in the light of the observations made above.