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2001 Supreme(Raj) 1289
Rajasthan High Court
Honble PRAKASH TATIA, J.
State & Anr. - Appellant
Versus
Umrav Singh & Ors. - Respondents
S.B. Civil First Appeal No. DR(J) 809 of 1999
Decided On : December 11, 2001
Sudhir Saruparia, for Appellant M.S. Singhvi, for Respondents
Headnote:C.P.C., Order 1 Rule 10 & Sec. 151 – Wrongly impleaded party – Prayed for addition of party – Held – Under Order 1 Rule 10 CPC party can be impleaded at any stage – It was a bonafide mistake in preparing appeal by wrongly impleading a dead person instead of dead persons successor.
Order 1, Rule 10 CPC clearly provides that a party can be impleaded at any stage. This gives description is given to Court suo motu to implead the party which ought to have been joined. The non-joinder of the necessary party is something different than the wrongly impleaded party or misdescription of the party. The rigidity of non-impleading a party may be different than wrongly impleaded party. The question is whether it was a bona fide mistake in describing a party or a deliberate action with ulterior motive to take benefit of the wrong by the appellants themselves or the other party who acquired any right or suffered something which cannot be compensated by cost. (Para 10)
A bare look of document itself it can be prima facie presumed that there might have been some confusion and when the appellant himself says that there was confusion, there is no reason to disbelieve the appellant. It is also relevant to mentioned here that nothing has been pointed out that what benefit the appellant will get by impleading a dead person and by not impleading the successor of the dead person in the appeal. Therefore, I am satisfied that there was bona fide mistake in preparing the appeal by wrongly impleading a dead person instead of dead persons successor. (Para 11)
(2). The appellant submitted that due to bona fide mistake the appellant impleaded respondent Sheikh Sharif Ali S/o Mulla Ali Mohammed as respondent No. 2. In the decree-sheet after the name of Sheikh Sharif Ali, the word `BAJAY was mentioned and thereafter, the name of Hakimudeen S/o Mulla Mohammad Hussain was mentioned. While preparing the memo of appeal, the word ``BAJAY could not be noticed. As a matter of fact, since Sheikh Sharif Ali died before the decree was passed in the original suit, the name of Hakimudeen S/o Mulla Mohammad Hussain may be shown in place of Sheikh Sharif Ali as respondent No. 2. Hence, the appellant wrongly impleaded deceased Sheikh Sharif Ali instead of hakimudeen, therefore, he has requested that appellant may be permitted to implead hakimudeen as a party respondent in place of Sheikh Sharif Ali. This application was filed by the appellant on 28.08.2001.
(3). The respondent No. 1 filed he reply to the application and submitted that this Court as back as on 19.12.2000 pointed out that there is a defect in array of the parties and also took note of the fact that Shekh Sharif Ali expired in the year 1998 and this fact has been noticed by the office in the month of September, therefore, according to learned counsel for the respondent No. 1, the application deserves to be dismissed only on the ground of such inordinate delay without thee being any application for not taking any steps by the appellant in time.
(4). Learned counsel for the respondent, however, submitted that when the appeal against the proposed respondent became barred by time, the respondent now cannot be impleaded and the appeal itself is incompetent and liable for dismissal for want of necessary party.
(5). The learned counsel for the respondent relied upon various judgments of the Honble Apex Court. In the judgment of the Honble Apex Court delivered in case of Ram Krishna & Ors vs. Roop Chand Molla & Ors. (1), Honble the Apex Court held that the appeal is liable to be dismissed when original defendants were not impleaded as party in the Special Leave Petition before the Supreme Court by the plaintiff-appellant. In this case when application for imploding respondent, who expired after defect was pointed out, was also dismissed by the Honble Apex Court.
(6). In the above case the necessary parties were not impleaded at all and, therefore, the Honble Apex Court refused to permit impleading the respondent holding that the appellants committed grave error in not impleading the original defendants as parties. But here in this case, this is not a case of not impleading necessary parties but this is a case of misdescription of a party. Only by misdescription,t he original respondent is being sought to be removed from the array of parties but, at the same time, by seeking impleadment the appellant is seeking addition of the party who is none else but the legal representative of the originally impleaded party in the appeal and the suit. Therefore, the judgment cited by learned counsel for the respondent No.1 has no application to the facts of the present case. Another judgment relied upon by the learned counsel for the appellant is delivered by the Honble Apex Court in Ch. Surat Singh (dead) & Ors. vs. Manohar lal & Ors. (2), wherein the Honble Apex Court dealt with the situation when the necessary party was not impleaded. The Honble Apex Court observed that where son of the plaintiff with other persons was brought on record on the death of the plaintiff during the pendency of the appeal before High Court and the fact that he was represented by a counsel, was clearly shown in the certified copy of the order of the High Court, but he was not impleaded as a party in appeal before Supreme Court, the fact hat he was so impleaded admittedly being within knowledge of appellants and the appellants failed to show any
