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1980 Supreme(MP) 87

High Court Of Madhya Pradesh
B. C. Varma, J.
ANJANI PRASAD - Appellant
Versus
ISHWARDIN - Respondents
Civil Revn. 647 Of 1977
Decided On : 04/08/1980

Advocates Appeared:
L.P.SINGH, R.P.PANDEY

Headnote:(1) Civil P.C. 1908 - O.1, R.10 - some of persons found unnecessary parties to a suit -mode of striking out their names-what is.

       The proper course to be followed in cases where it is felt for one or the other reason the suit cannot proceed against some of the plaintiffs or the defendants is to strike out the names of such persons from the cause title of the suit holding that they cease to be party to the suit. The persons whose names are so struck out, should be held to have been removed from the Suit. It will not be proper to hold that the suit has been decided against such persons. I.L.R. 1941 Nag. 90. AIR 1941 Pat. 385, AIR 1931 All. 333 and AIR 19.8 Nag. 233 distinguished. AIR 1933 Mad. 435 relied on. [Para 3

       (2) Civil P. C. 1908 - O.1. R.10 - claim of some of the plaintiffs found untenable-proper course is to dismiss their claim.

       While trying the claim of necessary parties, the Court may find that claims of such of those parties must be dismissed Under such circumstances, the proper course would be not to strike out the names of such person under Order 1, rule 10, C.P.C., but to pass a decree dismissing their claim. AIR 1938 Lah. 799 relied on. [P.ua 4

       (3) Civil P.C., 1908 - S. 96 and O.1, R.10 - person adversely affected by decision of Court-not party to the suit-may prefer an appeal with permission therefor.

       The Civil Procedure Code does not in any terms lay down as to who can be party to an appeal Since, however, an appeal has to be filed only by a person who is aggrieved by an order sought to be appealed against a party aggrieved by a decision has a right to prefer an appeal. It is, however, well recognised that a person not a party to the decree may file an appeal if he is adversely affected by the order of the trial Court provided he obtains leave from the Court of appeal. AIR 1941 Bom. 247 relied on. [Para 5

       (4) Limitation Act, 1963 - S.5 - delay in filing appeal-caused due to bona fide advice of a competent senior counsel- such delay is liable to be condoned. (Para 6

       

B. C. VARMA, J.

( 1 ) ONE Harinandan is said to have mortgaged certain property in favour of one Vishwanath in the year 1907. Twenty one persons claiming to be heirs of the mortgagor Harinandan filed a suit (giving rise to these proceedings) for redemption of the mortgage, Some of the defendants are sued as heirs of the mortgagee Vishwanath, whale others are transferees from them. The defendants denied the mortgage and claimed right and title in the suit property independent of Vishwanath. Vasudeo, one of the original plaintiffs, died during the pendency of the suit. His legal representatives applied for substitution beyond the prescribed period of 90 days. The defendants objected to the substitution but their objection was turned down. However, by order dated 186-t969, the trial Court directed that certain plaintiffs, who are non-applicants Nos. 4 to 14 in this revision, have been unnecessarily joined as plaintiffs. Since they claimed no interest in the suit property, their names were directed to be deleted and the suit proceeded in their absence. This order dated 18-6-1969 deleting the names of those plaintiffs was not challenged then either by appeal at by revision. The suit ended in partial success of the plaintiffs and, therefore, both the parties preferred separate appeals before the District Judge against the decree passed in that suit. In appeal preferred by the plaintiffs, all those persons whose names were deleted as plaintiffs by the trial Court's order, dated 18-6-1969, were also joined as appellants. No prayer was made for permission to file appeal on their behalf. Besides attacking the correctness of the decree partly dismissing the claim, they also challenged the correctness of fee trial Court's order, dated 18-6-1969, deleting their names as plaintiffs.

( 2 ) THE defendants objected to the joinder of those plaintiffs (non-applicants 4 to 14) as appellants principally on the ground that the order dated 18-6-1969 was a decree and since it was then not challenged, it could not now be challenged after the lapse of the requisite period of limitation. This objection was upheld and by order, dated 1-8-1973, the names of those appellants were ordered to be removed from the array of the appellants. This order was again not challenged by any proceeding before this Court. Instead, the appellants-plaintiffs in their appeal filed an application on 2-8-1973 seeking permission to amend the plaint trying to explain how the other persons, whose names were deleted, had interest in the suit property. By yet another application, the names of the other plaintiffs (non-applicants 4 to 14) were sought to ba added as appellants. Permission was also sought to file the appeal by them and it was added that the appeal already filed be treated on their behalf also. It was also alleged that the proceedings taken up to that stage by them were under the advice of the counsel, Lal Praduman Singh, a very senior Advocate of Rewa. No specific order was passed on these applications, but the appeal itself was decided on 11-12-1977. The decree of the trial Court was set aside and the suit was remanded for retrial directing the joinder of the other persons (nonapplicants 4 to 14) as plaintiffs. A revision (Civil Revision No. 79 of 1974) was preferred against that remand order. This Court vide order, dated 3-9-1976, passed in that revision set aside the remand order and directed the lower appellate Court to first decide the application, dated 2-8-1973. The parties were then heard and by the impugned order the District Judge, Rewa, allowed these applications as a result of which the non-applicants 4 to 14 have also been treated as appellants before the lower appellate Court. The plaint also stands amended. This revision is directed against this order of the District Judge. ( 3 ) THE first contention raised by Shri Ramayan Prasad Pandey, learned counsel for the applicants, is that the order of the trial Court directing deletion of the names of the non-a

















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