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2008 Supreme(MP) 937
K.K. Lahoti, J.
Shanti (Smt.) and another v. Lakshman and others
Second Appeal No. 129 of 1993 (J); Decided on 4.9.2008.*
S.K. Dwivedi for appellants; Vikram Johri for respondents.
Headnote:(1) Civil P.C., 1908 -- O. 41 R. 20 and O. 1 R. 10 -- addition of parties in appeal -- provision under O. 1 R. 10 not applicable -- recourse of O. 41 R. 20 should be taken. [Para 6
(2) Civil P.C., 1908 -- O. 1 R. 9 -- principle of representation of estate -- cannot be taken when there is non-joinder of necessary parties. [Para 7
(3) Civil P.C., 1908 -- S. 100 and O. 1 R. 9 -- parties before trial Court and first appellate Court -- are necessary parties in second appeal -- if not impleaded appeal cannot proceed. (1971) 1 SCC 889 and (1997) 10 SCC 307 followed. 2008 (2) JLJ 206 (SC) distinguished. [Para 11
¼1½ flfoy izfdz;k lafgrk] 1908 && vk- 41 fu- 20 rFkk vk- 1 fu- 10 && vihy esa i{kdkjksa dk la;kstu && vk- 1 fu- 10 ds v/khu mica/k ykxw ugha && vk- 41 fu- 20 dk voyac fy;k tkuk pkfg,A ¼ iSjk 6
¼2½ flfoy izfdz;k lafgrk] 1908 && vk- 1 fu- 9 && laink ds izfrfuf/kRo dk fl)kar && tc vko‘;d i{kdkjksa dk vla;kstu gks rc iz;qDr ugha fd;k tk ldrk gSA ¼iSjk 7
¼3½ flfoy izfdz;k lafgrk] 1908 && /kkjk 10 rFkk vk- 1 fu- 9 && fopkj.k U;k;ky; rFkk izFke vihy U;k;ky; ds le{k i{kdkj && f}rh; vihy esa vko‘;d i{kdkj gSa && ;fn i{kdkj ugha cuk, tkrs gSa rks vihy esa dk;Zokgh ugha gks ldrhA ¼1971½ 1 ,l lh lh 889 rFkk ¼1997½ 10 ,l lh lh 307 vuqlfjrA 2008 ¼2½ ts ,y ts 206 ¼mPPkre U;k-½ izHksfnrA
¼iSjk 11
Lahoti, J. -- 1. This is plaintiff's appeal who succeeded in Civil Suit No. 18-A/89 before the Civil Judge Class-II, Ajaygarh on 22.7.1992 but lost in Civil Appeal No. 48-A/1992 on 3.2.1993 by Additional Judge to the court of District Judge, Panna.
2. This appeal was filed on 17.3.1993 and admitted for final hearing on 30.9.1993, on the following substantial questions of law:
(i) "Whether in view of the judgment and decree passed in Civil Suit No. 56-A of 1972 decided on 9.4.1975, the finding that Shanti Bai is not daughter of Maniram is perverse?
(ii) Whether judgment and findings arrived between the predecessor in-title of the respondent and appellant No.1 in Civil Suit No. 56-AI 72 (Ex. P-l) will operate as res judicata?"
3. The appellants have filed an application under Order 1 Rule 10 CPC (LA. No. 182/2008) on 3.1.2008 praying for impleadment of Smt. Bitti, Mulli and Sunti as respondents in the present appeal. This application was filed on the ground that present appeal was preferred by plaintiffs Smt. Shanti and Kewaldeen, but other co-plaintiffs Smt. Bitti and Smt. Mulli, and defendant Sunti had not chosen to prefer an appeal, so they are required to be impleaded as respondents. Similarly, the State of M.P. was required to be impleaded as respondent, but due to bonafide mistake, it could not be impleaded as respondent. On these grounds, it was prayed that these four be permitted to be impleaded as respondents. In the application, it is stated that their non-impleadment was due to bona fide mistake and there was no mala fide on the part of appellants for not impleading them. On 23.10.2007, at the time of hearing, this fact was pointed out and immediately thereafter this application was filed. It was prayed that aforesaid three ladies and State of M.P. be permitted to be impleaded as respondents 8 to 11 in the appeal, in the interest of justice.
4. The aforesaid prayer was opposed vehemently by the learned counsel for the respondents, who submitted that Mst. Bitti and Smt. Mulli, both were plaintiffs before the trial Court, as plaintiffs 3 and 4. Mst. Sunti was defendant No.1 against whom the appellants had prayed a decree. The trial Court had granted decree in favour of plaintiff Mulli and Bitti and against defendant Sunti. Apart from this, State was also a party before the trial Court. Against the judgment and decree passed by the trial Court, all the respondents filed a Civil Appeal No. 48-A/1992 in which Mst. Bitti and Mulli and other plaintiffs were respondents. Mst. Sunti was respondent No.5, the State was respondent No.6 before the lower appellate Court. In the appeal, the judgment and decree of the trial Court was set aside. Against it, the appellant-plaintiffs have preferred this appeal. The judgment and decree of the trial Court was in favour of Bitti and Mulli and against Mst. Sunti. In the present appeal, there is non-joinder of necessary parties and on this ground, this appeal may be dismissed. So far the State is concerned, it was a proforma-respondent and though no relief was prayed by any party before the Court below but it was the proper party which ought to have been impleaded in this appeal. He placed reliance to the apex Court judgment in Ram Krishna Ghosh and others v. Roop Chand Molia and others [(1997) 10 SCC 307] and submitted that on this ground, not only the application, the appeal itself may be dismissed.
5. Shri Dwivedi, learned counsel for the appellant, in reply to the aforesaid contention submitted that the plaintiffs pleaded genealogical tree in para 1 of the plaint in which it was stated that Mst. Bitti and Mulli were the daughters of late Chhakodi and their brother is Kewal Deen, who is appellant No.2. Mst. Sunti is a daughter of Puniya. Though in the plaint, she was pleaded as daughter of Mani, but in fact Mst. Puniya was second wife of Mani and mother of Sunti. Mst. Shanti was daughter of Laltiya, second wife of Mani. Kewal Deen, who was representing the branch of Chhate
