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PUNJAB & HARYANA HIGH COURT
S.S.Dulat, K.L.Gosain and A.N.Grover JJ.
Notified Area Committee Buria
Versus
Gobind Ram Lachhman Dass
Second Appeal No. 98 of 1953,
Decided On : JANUARY 28, 1959
Whether a party to the original suit who has not been impleaded in appeal within the period of limitation prescribed for fifing the same can be added as a party to the appeal either under the provisions of Order XLI, Rule 20, Civil Procedure Code, or those of Order 1, Rule 10, Civil Procedure Code, read with Section 107, Civil Procedure Code, or under the inherent powers of the Court saved by Section 151, Civil Procedure Code?
Fact of the Case:
The plaintiff brought a suit under Order 1, Rule 8, Civil Procedure Code, for perpetual injunction restraining the Notified Area Committee, Buria, from imposing and levying house-tax on the plaintiffs and other inhabitants of Buria Town in the District of Ambala. The suit was contested by the Committee who pleaded that they had the right to levy the tax in question and that the imposition and levy thereof was in no way illegal or ultra vires. On 28-5-1952 the trial Court decreed the plaintiffs suit leaving the parties to bear their own costs. In appeal the said decree was confirmed by the learned Senior Subordinate Judge, Ambala, on 30-10-1952, and the defendant Committee has now come up in second appeal to this Court. At the hearing of the appeal a preliminary objection was taken by the respondents that the appeal was not properly constituted because Prakash Chand plaintiff, who was a necessary party to the same, had not been impleaded as such. The contention was that the trial Court had given permission jointly to six persons to sua in a representative capacity and that the decree in the Courts below had been passed in favour of the six persons as also in favour of the other inhabitants of the notified area of Buria who were represented by these six persons.
Finding of the Court:
The Court held that a party to the original suit who has not been impleaded in appeal within the period of limitation prescribed for fifing the same can be added as a party to the appeal either under the provisions of Order XLI, Rule 20, Civil Procedure Code, or those of Order 1, Rule 10, Civil Procedure Code, read with Section 107, Civil Procedure Code, or under the inherent powers of the Court saved by Section 151, Civil Procedure Code.
Issues: Whether a party to the original suit who has not been impleaded in appeal within the period of limitation prescribed for fifing the same can be added as a party to the appeal either under the provisions of Order XLI, Rule 20, Civil Procedure Code, or those of Order 1, Rule 10, Civil Procedure Code, read with Section 107, Civil Procedure Code, or under the inherent powers of the Court saved by Section 151, Civil Procedure Code?
Ratio Decidendi: The Court interpreted Order XLI, Rule 20, Civil Procedure Code, and held that the words "interested in the result of the appeal" should be given a broad interpretation and that a party who is sought to be affected by the decision of the appeal should be deemed to be interested in the result of the appeal. The Court further held that the rule is an enabling one and was framed to meet contingencies like the present case where, for reasons with which the Court is satisfied, the name of the said party was not mentioned in the original memorandum of appeal. The Court also held that the inherent powers of the Court under Section 151, Civil Procedure Code, can be exercised to add parties to appeals in suitable cases, and that the language of Rule 20 of Order XLI is not exclusive or exhaustive so as to deprive the appellate Court of the inherent powers in this respect.
Final Decision: The Court allowed the appeal and held that the appellant could add the name of Prakash Chand as a party to the appeal.
K.L.Gosain, J.
1. In order to appreciate the true nature and import of the question of law raised in this case, it is necessary to state the relevant facts.
2. Six persons: Gobind Ram, Babu Sumer Chand, Gajinder Parshad, Miri Mal, Prakash Chand and Raghunath Das brought the present suit under the provisions of Order 1, Rule 8, Civil Procedure Code, for perpetual injunction restraining the Notified Area Committee, Buria, from imposing and levying house-tax on the plaintiffs and other inhabitants of Buria Town in the District of Ambala. On an application made to the trial Court the aforesaid six persons were allowed to represent the inhabitants of the whole town. In their plaint they alleged that the imposition of the house-tax by the Notified Area Committee, Buria was illegal, ultra vires and arbitrary, and prayed for a permanent injunction restraining the Committee from imposing and realising the said; house-tax.
The suit was contested by the Committee who pleaded that they had the right to levy the tax in question and that the imposition and levy thereof was in no way illegal or ultra vires. On 28-5-1952 the trial Court decreed the plaintiffs suit leaving the parties to bear their own costs. In appeal the said decree was confirmed by the learned Senior Subordinate Judge, Ambala, on 30-10-1952, and the defendant Committee has now come up in second appeal to this Court.
3. It appears that in the certified copy o£ the judgment or the Lower Appellate Court supplied to the Committee, the name of Prakash Chand plaintiff was not mentioned in the array of parties and presumably on account of the said mistake the name of Prakash Chand was not mentioned as party in the memo of appeal filed in this Court.
4. At the hearing of the appeal a preliminary objection was taken by the respondents that the appeal was not properly constituted because Prakash Chand plaintiff, who was a necessary party to the same, had not been impleaded as such. The contention was that the trial Court had given permission jointly to six persons to sua in a representative capacity and that the decree in the Courts below had been passed in favour of the six persons as also in favour of the other inhabitants of the notified area of Buria who were represented by these six persons.
It was urged that five of them could not properly represent the inhabitants of the town of Buria because the trial Court had expressly granted permission jointly to six persons and the terms of the said permission had never been varied by any subsequent order of the trial Court. Reliance was placed on Girdhari V/s. Ram Kala, AIR 1937 Lah 601, where it was held : "Where permission is granted to certain persons under Order 1, Rule 8, Civil Procedure Code, to conduct the suit on behalf of the proprietary body and one of them withdraws, it is for the Court to decide whether it will permit the remaining plaintiff or plaintiffs, to whom the general sanction has been given, to continue to prosecute the suit, or whether it will insist upon the original number, in which case it should notify to the members of the proprietary body to ask them so that they may authorise another person to conduct the case on their behalf as a co-plaintiff."
Reliance was also placed on Venkatakrishna Reddy V/s. Srinivasachariar, AIR 1931 Mad 452, which was followed in the above mentioned Lahore case.
5 The learned Counsel for the appellant submitted in reply that the name of Prakash Chand had been left over on account of a bona fide mistake which occurred due to the fact that an incorrect copy of the judgment was supplied to his client and the mistake being oh" the part of the Court or its officers, his client should not be prejudiced and made to suffer by the same. He further urged that the suit was a representative one and that each of the six persons represented all other inhabitants of Buria Town and in a case of this type it did not at all matter that one of the six persons had hot been impleaded as a party
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