' An ejectment application was filed by the respondents against Ghulam Mohy-ud-Din predecessor-in-interest of the appellants. The learned Controller by his order dated 18th of November, 1959 directed Ghulam Mohy-ud-Din to deposit monthly rent of the disputed property by 15th of every month. Luring the proceedings, later on, he was further directed by the learned Controller, on the request of the respondents, to file Treasury Challans regarding the rent, deposited by him, in compliance with the order of the Court, as mentioned above. It was found after due scrutiny of the rent receipts that monthly rent of June was deposited on 7th July 1960, while rent for the month of August was deposited on 7th of September 1960. It was pleaded on behalf of Ghulam Mohy-ud-Din before the Controller that no default had been committed by him due to the explanation furnished before the Rent Controller. The explanation furnished by the respondents need not be referred to here in detail as reference to that is not necessary for the decision of the present case. The learned Controller while not finding favour with the explanation struck off his defence under section 13(6) of the Ordinance and directed him to put the respondents into possession of the property. His appeal before the learned Additional District Judge, Lahore, also failed. He, thereafter, approached the High Court by way of /resent appeal which was admitted to regular hearing on 21st of July 1966.
2. At the time when the appeal was fixed for arguments on 5th of November 1974, affidavit of Mian Amiruddin one of the respondents was submitted by the learned counsel for the respondents in the Court to the effect that Mian Aminuddin respondent No. 2 died on 18th of September 1962, long before the appeal was filed. Mian Alaud Din respondent No. 9 died on 19th of May 1967, and Mst.
Umat-ul-Aziz respondent No. 11 died on 7th of June 1974. It was contended by the learned counsel that since the appeal was filed against a dead person who was one of the joint owners of the property, his legal heirs having not been brought on record within time and the same position being obtaining in the case of Mian Alaud Din, respondent No. 9, who died on 19th of May 1967, and whose legal representatives have not been brought on record, the appeal as such has abated in toto.
3. The learned counsel for the appellants being unaware about the position taken up by the respondents, sought adjournment of the case. Thereafter Miscellaneous Nos. 3802/C-74, 3803/C- 74 and 3804/C-74 were filed for setting aside the abatement of appeal in the case of Mian Alaud Din, respondent, who died on 19th of May 1967, and impleading his legal heirs on the ground that since the deceased did not belong to the baradari of the appellants nor they had any contact with him for a long time, therefore, they did not know anything about his death. Affidavit to that effect was filed by one of the appellants. An application under section 5 of the Limitation Act was also filed for condoning the delay in filing the application for setting aside the abatement. The last petition, Civil Miscellaneous No. 3804/C-1974, as referred to above was filed under Order XLI, rule 20, read with section 151, C. P. C. To substitute Mian Aminuddin respondent No. 2 by his legal representatives and permission to amend the appeal accordingly. It was admitted in the petition that when Mian Aminuddin died on 18th of September 1962, appeal filed against the order of the Controller dated 4th of October 1961, was pending before the learned Additional District Judge, Lahore and Mian Ghulam Mohyuddin predecessor-in-interest of the appellants filed application under Order XXII, rule 4, C. P. C. For impleading the legal representatives of late Mian Aminuddin.
Since the memorandum of appeal was not amended, therefore, the judgment passed by the learned lower Appellate Court showed Mian Aminuddin as respondent while he had died during the pendency of the appeal. Since his name appeared amongst the respondents in the copy of the judgment furnished to Mian Ghulam Mohyuddin predecessor-in-interest of the appellants, therefore, he was shown as one of the respondents in the present appeal, filed in this Court in 1966.
It was pleaded that since the mistake was bona fide, therefore, legal representatives of late Mian Aminuddin should be brought on record by the Court in exercise of its powers under Order XLI, rule 20, C. P. C.
4. All the petitions referred to above, filed by the appellants have been opposed vehemently by the learned counsel appearing on behalf of the respondents. It has been argued by the learned counsel for the appellants that since the omission to bring on record legal representatives of Mian Aminuddin and Mian Alauddin is bona fide, therefore, the delay in firing necessary application should be condoned and they should be allowed to be brought on record so as to make the appeal competent. In the case of Mst. Umat-ul-Aziz, it has been contended that since she died in June 1974, after the necessary amendment was introduced in the relevant provision of law as contained in Order XXII, rule 4, C. P. C. Therefore by her death the appeal against her would not abate. So far as the last contention of the learned counsel is concerned there is no dispute about the proposition of law. Since the death of Mst. Umat-ul-Aria respondent took place after the enforcement of the relevant amendment in law, therefore, the appeal against her would not abate in spite of the tact that her legal representatives have not been brought on record. They can be brought on record even at this stage and would be bound by the decision to be made in the appeal.
5. In the case of Mian Aminuddin respondent No. 2 who died in 1962, it has been admitted that after his death necessary application was filed by Ghulam Mohy-ud-Din predecessor-in-interest of the appellants before the learned lower appellate Court for bringing on record his legal representatives, as appeal against him e as still pending, therefore it means that it was well within the knowledge of Mian Ghulam Mohy-ud-Din as well as his attorney Mehraj Din who was pursuing the case in his absence on account of his illness that Mian Amin-ud-Din died on a particular date, as referred to abase. It is also not denied that at the time when present appeal was filed in this Court Mian Ghulam Mohy-ud-Din was alive and it was he who filed the same but in spite of the knowledge that Mian Amin-udDin had died in 1962, he filed the present appeal in 1966 without impleading the legal representatives in his place and cited dead person as one of the respondents.
The question arises as to whether, in the given circumstances, omission to cite the legal representatives can be taken as bona fide and the Court can exercise its discretion under rule 20, Order XLI, C. P. C. To implead the legal representatives of Mian Aminuddin in the appeal being necessary party. It is also to be seen whether the appellants have been guilty of extreme neglect in not citing the legal representatives of Mian Amin-ud-Din within time.
6. The provision as contained in Order XLI, C. P. C. Provides that where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent. Further question in view of the provision as referred to above as well as the circumstances of the case may arise whether the legal representatives of Mian Aminuddin would be interested party after limitation has run out against them.
7. It has been held in pulin Bihari Roy and others v. Makendra Chandra Ghosal and others (1) that Court has inherent power to add respondent irrespective of the scope of the provisions as contained in Order XLI, rules 21 and 33, C. P. C. The learned counsel for the appellants has very much relied upon this case but I am afraid it will not be of any help to him. The suit before the Court in that case was a suit as contemplated by Order XXX, C. P. C. Such a suit can be brought by or against a firm in the name of the firm, though the firm may have been dissolved before the date of the filing of the suit, provided the cause of action arose before the date of dissolution. The proceedings in such a suit conrinues in the name of the firm even though the names of partners are also disclosed; Order XXX, rule 2, Civil Procedure Code. The case before the Court there was not that which was brought in the name of particular individuals, rather it was a suit which was brought in the name of the firm. It was therefore, held in the circumstances of the case that even
(1) AIR 1921 Cal. 722 though one of the partners of the firm had died during the pendency of the appeal and his legal representatives had not been brought on record within time, no valid objection could be taken with regard to the competence of the appeal as the suit was to continue in the name of the firm. In the present case no such circumstance exists and as such the case referred to above is not applicable to the facts of the present case. Next case relied upon by the learned counsel for the appellants is Amarsingh v. Kanshi and others (1). The facts of the case are that Amarsingh instituted a suit against Kanshi and others for possession of his share in certain immovable properties and for declaration. Kanshi one of the respondents vendee in the case, pleaded that he had entered into an arrangement with regard to this property with his son Daulat Ram who was a necessary party.
At this the Court ordered Daulat Ram to be impleaded as a party but the plaintiff was never directed to amend the plaint in order to include Daulat Ram as a derendant. The proceedings in the case as such continued and the s lit was ultimately dismissed. Neither the decree of the Court contained Daulat Ram's name nor the judgment thereof, showed Min as party. An appeal was preferred against the decision of the Court before the District Judge and at the time of its hearing objection was taken to the competence of the appeal on the ground that Daulat Ram being necessary party had been omitted to be shown amongst the respondents. The learned District Judge agreeing with the objection dismissed the appeal, In second appeal before the High Court it was found that since the District Judge had not exercised his discretion under Order XLI, rule 20, C.
P. C. Therefore, the case should be remanded to him for its decision in accordance with law. It was however, observed that there was no neglect on the part of the appellant, before the Court, or his counsel, as the documents such as plaint, judgment and decree did not show that Daulat Ram was a party to the case and for that reason he was not shown amongst the respondents in appeal filed before the District Judge, The learned counsel appearing for the appellants has contended that since the facts of the present case are quite similar to th1t reported in AIR 1924 Lah. 629 therefore, the appellants cannot be found guilty of any neglect in not impleading the legal representatives of Mian Aminuddin. I am afraid this contention has no force in the given circumstances. In the present case it cannot be denied that Mian Aminuddin was one of the petitioners in the ejectment petition filed against Mian Ghulam Mohyuddin predecessor-in-interest of the appellants. When Mian Aminuddin died Mian Ghulam Mohyuddin himself made an application before the lower appellate Court to bring on record his legal representatives and in spite of that knowledge he omitted to implead the legal representatives as party in place of Mian Aminuddin, in the present appeal. The main question to be determined is as to whether the appellants or their predecessorin-interest who filed the present appeal had the knowledge about the death of Mian Aminuddin or not. As discussed above he very much knew that Mian Aminuddin died on a particular date and in view of that it was obligatory for him to implead his legal representatives in the present appeal. In the absence of that, appeal filed before this Court, cannot be considered to be competent, a necessary party having not been impleadedl therein.
8. The next case relied upon by the learned counsel for the appellants is reported as Padarath Mahton v. Hitan Singh and others (2). In that case
(1) AIR 1924 Lah. 629 (2) AIR 1924 Pat. 773 a co-sharer landlord appealed to the Subordinate Judge impleading the plaintiff as respondent but did not implead the tenants defendants as respondents in the appeal. The learned lower appellate Court after considering the evidence concluded that it was not sufficient to hold that amount of rent had been paid to the appellant co-sharer landlord and as such he allowed the appeal. Prior to that the learned trial Court had dismissed the suit for recovery of rent amount against the tenants and had decreed the suit against co-sharer landlord who was found to have received the amount of rent from the tenants. As mentioned above, the lower appellate Court reversed judgment and decree on the ground that there was insufficient evidence to hold as such.
The co-sharer landlord who filed the appeal against the judgment and decree had not impleaded the tenants in his appeal, as no decree was passed against them. He only impleaded the plaintiff in whose favour the decree had been passed. The point to be decided was as to whom the tenants had paid amount of rent, the co-sharer landlord or the plaintiff landlord. When the plaintiff landlord filed second appeal before-the High Court, this aspect of the case was duly considered and it was found that presence of the tenants before the Court in second appeal was necessary in order to determine as to whom they had-paid the amount. In spite of the fact that limitation had run out against them in appeal, they were impleaded as party by the High Court. Under Order XLI, rule 20, C.
P. C. And it was held that the appellate Court had power in second appeal to add as respondents, persons who were parties to the suit in the original Court but were not impleaded as respondents in the lower appellate Court although the limitation had expired against them. The facts of the case as reported in AIR 1924 Pat. 773 are quite different from the present one, wherein in addition to the other points it is to be seen whether the provisions as contained in Order XX, C. P. C. Can be overridden by the provision of Order XL!, rule 20. Further the view taken in this case has not been approved in the subsequent authorities to be discussed later on.
9. It was held in Laguduva S. Krishnaswami Iyeer v. Shankarappa Naidu (1) that a person against whom an appeal has abated is not a party interested in the result of the appeal within the meaning of Order XLI, rule 20 and the Court has no jurisdiction to add him as a party to the appeal.
It was further held that the provision as contained in Order XLI, rule 20 was not intended to override the provisions of Order XXII. The right obtained by a respondent when appeal abates against him is a valuable right and should not be lightly treated. The facts of the case are that the petitioner before the High Court was a joint decree-holder in a suit while the respondent in that case was the judgment-debtor. Against an order passed in execution on 21st of October 1932, the judgment- debtor i.e. The respondent before the High Court filed an appeal within time wherein he omitted to implead the petitioner I e. One of the decree-holders as respondent. The respondent, thereafter, made an application before the Court for permission to add the name of the petitioner as respondent. This application was granted by the lower Courts but the order passed in this behalf was reversed by the High Court, as mentioned above.
10. A Full Bench of this Court in Labhu Ram and others v. Ram Partap and others (2) has held that when once time for an appeal has run out, it is not possible for an appellant subsequently to implead those defendants who were not originally impleaded as respondents in the appeal, in a
(1) AIR 1935 Mad. 175 (2) AIR 1944 Lab. 76 case in which a necessary patty to an appeal has been omitted, the Court cannot exercise any power vested in it under Order XLI, rule 20 to cover the omission. An appellate Court cannot exercise its power under Order XLI, rule 20 if limitation has already expired as question of condonation of delay under section 5 of the Limitation Act would not arise in such a case. The Full Bench has also gone to the extent of holding that an order for imoleading a party against whom limitation has run out cannot be made even under Order I, rule 10 by the appellate Court and under section 151, C. P.
C. It was held that since specific provision regulating the procedure in such cases where the party had been omitted from being impleaded in appeal was-available, therefore, such provision as section 151, being residuary in character cannot be availed of for such purposes. The facts of the case as referred to above are that a suit for perpetual injunction in respect of a drinking well which was claimed to be joint, was filed by Ram Partap and nineteen other persons against Labhu Rain and his descendents. The learned trial Court decreed the suit in the terms mentioned in the judgment on 14-1-1939. Both the parties, the plaintiffs as well the defendants filed appeals against the said judgment and decree. At the time of the hearing of the appeals, preliminary objection was raised on behalf of Ram Partap and others that appeal of Labhu Ram and others could not proceed as Krishen Kumar and Inder Kumar, two necessary parties had not beenimpleaded therein as respondents, and inasmuch as the decree had been passed jointly in their favour along with other plaintiff had become final. Consequently an application under Order XLI, rule 20, C. P. C. Was made on behalf of Labhu Ram and others along with an application under section 5 of the Limitation Act seeking the rectification of the mistake by adding the said two persons as respondents in the appeal. The learned District Judge, after hearing the arguments, dismissed the appeal of Ram Partap and others on merits and that of Labhu Ram and others being incompetent having not impleaded necessary party. It was contended before the Full Bench that even if the two persons, referred to above, were necessary parties and omitted from being impleaded as such in the appeal, the mistake could be rectified by the District Judge under Order XLI, rule 20 or under Order I, rule 10 road with section 107 or at any rate under section 151, C. P. C. And that the delay in making the application could be condoned under section 5 of the Limitation Act and that in any circumstances the appeal of Labhu Ram and others having been filed after the presentation of the appeal of Ram Partap and others could be treated as cross-objections under Order XLI, rule 22, C. P.
C. And even otherwise the District Court could of its own accord grant the relief prayed for by Labhu Ram and others under Order XLI, rule 33, C. P. C. All the contentions except for treating the appeal of Labhu Ram and others as cross-objections raised before the Full Bench were repelled. It was held that none of the provisions as referred to above were attracted to the facts of the case to be availed of by Labhu Ram and others and the party against whom time had run out could not be impleaded as respondent in the appeal. Since the appeal preferred by Labhu Ram and others before the District Judge was treated as cross-objections having been filed under Order XLI, rule 22,,C. P. C. The case was remanded to the District Judge for its decision as such in accordance with law. Similar view was taken in Allah Dad and others v. Nawab and others (1) whereby it was held that the provisions as contained-in Order XLI, rules 4 and 33 are enabling provisions and the Court cannot=
(1) PLD 1960 Lah. 277 exercise its powers under the said provisions in favour of those persons or against them when they were not made parties to the appeals. In order to exercise the powers contained in the said two rules of Order XLI, all persons affected by the order must be before the Court. It was observed that it would be totally wrong to hold that an appellate Court can proceed to hear the case if all the necessary parties are not before it. Where any one of the appellants or the respondents dies and his legal representatives are not brought on record then all persons interested in the result of the appeal are not before the Court and so the appellate Court cannot proceed to exercise powers vested in it by Order XLI, rules 4 and 33. It was further held that the said provisions did not nullify the provisions of Order XXII, rules 3 and 4 and would not indirectly prevent an appeal from being abated.
11. In that case during the course of appeal pending in the High Court, Allah Dad from the appellant's side died on 21st of June 1959, and Nur Hussain from the respondent's side also died about 2i years before the appeal was heard, No application for bringing their legal representatives on record was made within time and consequently the appeal stood abated under the relevant provision of law. No application was also made till the hearing of the appeal for setting aside the abatement under Order XXII, rule 9, C. P. C. It was inter alia argued before the High Court that the appeal could be otherwise disposed of 03 merits under Order XLI, rules 4 and 33, C P. C. The said contention was repelled and it was held that the said provisions did not nullify the provisions of Order XXII and could not he invoked in case of an incompetent appeal.
12. The same view was taken in Qasim Khan and another v. Mst. Malkat and others (1). In that case Qasim Khan plaintiff filed a suit in the Court of Civil Judge Peshawar for partition of property against Mst. Malkai and others. The suit was decreed on 8th of April 1957, but the judgment and decree was reversed by the learned Additional District Judge, Peshawar on 26th of October 1959, on the appeal of Mohib Ali one of the defendants in the trial Court. Qasim Ali the plaintiff later on filed second appeal in the High Court but however, omitted to implead Mohib Ali on whose appeal the case had been decided against the plaintiff. He, therefore, filed an application before the High Court on 24th of October 1962, for impleading Mohib Ali as respondent in the appeal against whom limitation had run out. It was argued before a Division Bench of the High Court that the provision as contained in Order XLI, rule 20, C. P. C. Canferred sufficient and wide powers upon the Court to order a person to be made a party to an appeal if he was interested in the result thereof and since Mohib Ali according to the learned coansel was interested in the result of the appeal, the Court was competent to order for his being impleaded as party. The High Court while relying upon Labhu Raw and others v. Ram Partap and others (2), V. P. R. V. Chockalingaon Chettp v. Seethai Ache and others (3) that since period of limitation had expired so far as Mohib Ali was concerned, therefore, he could not be considered to be interested in the result of the appeal and since rule 20 of Order XLI, empowered the Court to implead an interested party, therefore a party against whom period of limitation had run out could not be impleaded as such in the appeal. The application as such was dismissed
(1) PLD 1963 Pesh. 58
(2) AIR 1944 Lab. 76 (3) AIR 1927 P C 252 and since the appeal was incompetent on account of absence of any necessary party, therefore, the same was also dismissed. Their Lordships of the Supreme Court in Muhammad Jamil v. The Chairman, Industrial Court, West Pakistan and another (1) affirmed the view as taken in PLD 1963 Pesh. The facts of the case are that the ,award was given on the 27th March 1962, and it was published in the Gazette on 7th April 1962. In the petition for special 'eave to appeal which was filed before the Supreme Court by the appellant on 9th of May 1962, the employer was not impleaded as a party. The appellant later on filed a petition on 19th of February 1963, for adding the employer as respondent after the Court, on 13th February 1963, had inquired suo moru why the employer had not been added as a party. His addition as party was permitted subject to all just exceptions. It was held by the Supreme Court that since the employer had acquired a valuable right, therefore, it should not be taken away from him in the circumstances of the case. The Court had power in a proper case under Order XLI, rule 20, C P. C. To allow a necessary party to be added as a respondent but such power being discretionary should not be exercised in case of extreme neglect.
The case as reported in AIR 1927 P C was referred to in this respect. In the present case, as discussed above, the appellants or their predecessors in-interest are guilty of extreme neglect in not impleading the legal representatives of late Mian Aminuddin as respondents within time. It being within their knowledge, as discussed shove, that Mian Aminuddin had died, they omitted to implead his legal heirs in the appeal. The principle as laid down in PLD 1964 SC being fully applicable to the facts of the present case the appellants cannot invoke the a provisions as contained in Order XLI, rule 20.
13. The above discussion would show that in a case where limitation time has run out against a particular party, which has not been impleaded as such in appeal, the same being not interested in the result thereof cannot be impleaded under rule 20 of Order XLI, C. P. C. Respectfully agreeing with the view taken in the authorities, as referred to above, petition filed by the appellants under the said provisions of Order XLI, rule 20, C. P. C. Is hereby rejected.
14. So far as question of condonation of delay in filing the application for setting aside the abatement of appeal under section 22, rule 9, C. P. C. In case of Mian Alaud Din is concerned, I am afraid the relief as prayed for cannot be granted in the given circumstances of the case. Since it has been found, as discussed above, that it was within the knowledge of the predecessor-in- interest of the appellants that Mian Aminuddin died on a particular date and he himself on account of that made an application before the learned District Judge for impleading his legal heirs as party in his place in appeal filed by him, therefore, it cannot be argued in the given circumstances at this stage that their names were omitted to be impleaded as such inadvertently.
Unless the delay for filing such application for setting aside the abatement is satisfactorily explained, the delay as such cannot be condoned, The result is that the other petition for setting aside the abatement in case of Mian Alaud Din and impleading his legal heirs in the appeal in his place also stands rejected.
15. As a result of the above discussion the appeal having already abated is hereby dispeeed of as such. There will be no order as to costs. accordingly.
(1) PI.D1964SC559