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1989 C L C 211

[S C (A J & K)]

Present Raja Muhanmad Khurshid Khan, C.J. and

Sardar Said Muhammad Khan , J

MUHAMMAD ASHRAF and 5 othersAppellants

versus

ALAM DIN and 7 othersRespondents

Civil Appeal No. 21 of 1987, decided on 27^th November, 1988.

(On appeal from the judgment of the High Court dated 22 12 1986 in Civil Appeal No.58 of 1986).

(a) Civil Procedure Code (V of 1908)

_ O.XLI, R.20 Omission of partys name from decree sheetAppellate Courts power to adjourn hearing and direct such party to be impleaded as respondent in appealAppellate Court has power in a proper case to allow a necessary party to be added as respondent even after period of limitation by condoning delayPower to take such action, however, is discretionary and should not be exercised in cases of extreme negligenceWhere a person cannot be blamed for such omission and the fault lies with the Court or its officials such person was not to suffer for such fault or omission and defect could be cured even after lapse of period of limitation fixed for the cause, in condoning such delay not perpetuated by him.

Qazi Mehar Din v. Murad Begum P L D 1951 B J 1; Sarshar Ali v. Roberts Cotton Association Ltd. P L D 1963 SC 244; Mehtab Beg v. Chiragh Ali 1975 S C M R 54; Mehtab Beg v. Ghulam Muhammad P L D 1975 Lah. 580; V.P.R.V. Chockalingam Chetty v. Seethai Ache A I R 1927 P C 252; Labhu Ram v. Ram Partap A I R 1944 Lah. 76; Sohna v. Khala Singh (1891) ,13 All. 78; Bindeshri Naikh v. Ganga Saran Sahu (1892) 14 All. 154; Kanagappa v. Sakkalinga (1892) 15 Mad.362; Girish Chandar v. Sasi Sekhareswar Koy (1006) 33 Cal. 329; Kisanrao Manik and others v. Nanaji and others A I R 1935 Nag. 182; V.S.T. Thamsa Tahsin Tharanganar v. Mohammed Haji Ganny AIR 1935 Rang. 364; Saktiprasanna Bhattacharya v. Naliniranjan Bhattacharya A I R 1931 Cal. 738; Raushan Ram v . Sheran Khan AIR 1920 Lah. 72 (2); Maung An Gale v. Ma Min Dun A I R 1921 Upper Burma 13; The Municipal Committee, Mehar v. Shiv Ram A I R 1923 Lah. 503 ref.

(b) Maxim

Actus legis (curiae) neminem gravabit korder of the Court would prejudice no man) One of the first and highest duties of all the Courts is to take care that the act of the Court does no injury to any of the suitors.

(c) Civil Procedure Code (V of 1908)

O.XLI, R.20 & 5.151 Adding a respondent to appealDiscretionary powers of High CourtPower to add a respondent to appeal in terms of O.XLI, R.20, Civil Procedure Code, would depend upon the nature and circumstances of each caseNo hard and fast rule could be laid down .that a person who was party to the suit in original Court could not in any circumstances be added as a respondent in appeal after period of limitationHigh Court has ample power under 5.151 C.P.C. to add a respondent to appeal even after the expiry of period of limitation prescribed for appeal, if in the peculiar circumstances of case it thinks fit to do soLanguage of O.XLI, R.20, C.P.C. is neither exclusive nor exhaustive so as to deprive a Court of any inherent power which it may possess and can exercise in special circumstances and which has been saved by S .151, C P . C .High Courts order impleading such person in appeal as a respondent who was a party in suit and was also interested in the result of appeal by condoning delay in exercise of its inherent jurisdiction, was just and proper exercise of its powerAppeal dismissed in circumstances.

V.P.R.V. Chockalingam Chetty v. Seethai Ache A I R 1927 PC252; H.H. Darbar Alabhai Vajsurbhai v. Bhura Bhaya A I R 1937 Bom 401; Chockalingam Chetty v. Seethai Ache A I It 1927 P C 252; Shanti Lal v. Firm lira Lal Sheo Narain A I R 1941 Lah. 402 and Padarath Mahton v. Hitan Singh AIR 1924 Pat. 773 ref.

(d) Words and phrases

The act of the CourtExpression does not mean merely the act of the primay Court or of any intermediate Court of appeal but of the Court as a whole from the lowest which entertains jurisdiction over the matter up to highest Court which finally disposes of the case.

Basharat Ahmad Sheikh for Appellants.

Ch. Muhammad Taj for Respondents.

RAJA MUHAMMAD KHURSHID KHAN, C.J. Through this appeal, by leave, order of the High Court dated 22 12 1987, whereby the name of Mst. Riaz Bi was ordered to be added as respondent in appeal pending before the High Court, is questioned. It arises in the following way:

One Nathoo (since dead) whose legal representatives in the Court of original jurisdiction have been brought on record after his death, sought to pre empt the suit land which was transferred in favour of Rehman, son of Shams Din, by way of a sale deed. The suit was dismissed by the original Court on 29 10 1976. Appeal taken to the District Judge, Mirpur, was, however, accepted vide order dated 31 5 1986. Alam Din, respondent herein, went up in second appeal before the High Court on 26 8 1986; but he omitted to implead in appeal Mst. Riaz Bi, one of the legal representatives of Nathoo, as a respondent.

2. An objection by the respondent (appellant herein) to the effect that the appeal in the High Court was incompetent due to non-impleadment of Mst. Riaz Bi, was raised. On this objection an application was moved by Alam Din, respondent, with the prayer that he may be allowed to add Mst. Riaz Bi as a respondent. In the application it was averred: that the omission occurred as the decree sheet prepared in the Court of District Judge omitted to enter her name and this fact provided him good ground for condonation of delay.

3. The learned Judge in the High Court accepted the prayer of the respondent and allowed addition of Mst. Riaz Bi as a respondent on payment of Rs.200 as cost vide the impugned order. The order rests on the ground that since the respondent was misled by incorrect decree sheet he cannot be allowed to suffer for the mistake of the Court or its official.

The appeal, by leave, seeks reversal of the aforesaid judgment of the High Court.

4. We have heard the learned counsel for the parties and have also gone through the file. It has been contended by Mr. Basharat Ahmad Sheikh:

(i) that after the lapse of period of limitation, Mst. Riaz Bi could not be added as a respondent and the learned Judge in the High Court erroneously held that under Order XLI, rule 20 C . P . C . , the Court can add a party even after the period of limitation; and

(ii) that Order XLI, rule 20, C.P.C. does not apply to the case in hand because after the expiry of period of limitation of appeal, Mst. Riaz Bi cannot be considered to be a party interested in the result of the appeal. In this view of the matter, Order XLI, rule 20, C.P.C. only applies, if the party desired to be added is not only a necessary party but is also interested in the result of the appeal. Elaborating the point, the learned counsel maintained that since after expiry of the period of limitation no appeal could be preferred against Mst. Riaz Bi, she cannot be regarded to be a party interested in the result of the appeal and so she could not be added as a party.

To support his contentions, the learned counsel has relied on the enunciation of law in Qazi Mehar Din v. Murad Begum P L D 1951 B.J. 1, Sarshar Ali v. Roberts Cotton Association Ltd. P L D 1963 SC 244, Mehtab Beg v. Chiragh Ali 1975 S C M R 54, Mehtab Beg v. Ghulam Muhammad P L D 1975 Lah. 580, V.P.R.V. Chockalingam Chetty v. Seethai Ache A I R 1927 P.C. 252 and Labhu Ram v. Ram Partab A I R 1944 Lah. 76.

5. In opposition, Ch. Muhammad Taj, the learned counsel for the respondents argued:

(i) that the Court has ample power to add a party in appeal, not only under Order XLI, rule 20, C.P.C. but also under section 151, C.P.C.

(ii) that it is well settled principle of law that a party cannot suffer for the mistake of the Court. In this context, he has argued that the name of Mst. Riaz Bi was omitted in the appeal not due to the inadvertence of the counsel of the respondent or the respondent but due to mistake committed by the official of the Court who prepared the decree sheet and wherein the name of Mst. Riaz Bi was omitted. How his client, the learned counsel maintained, can be allowed to suffer on the basis of the mistake committed by an official of the Court;

(iii) that no negligence on the part of the respondent or his counsel is established to refuse addition of Mst. Riaz Bi as a respondent; and

(iv) that in the circumstances of the case delay was rightly condoned.

6. We have examined the case law referred to by Mr. Basharat Ahmad Shaikh. The ratio decidendi in all the cases is not applicable to the facts of the case before us. Qazi Mehar bin v. Murad Begum P L D 1951 B.J.1 has no application to the facts of the present case. No doubt it was held in that case that a person against whom the right of appeal is barred ceases to be an interested person and, therefore, his name cannot be added either under Order XLI, rule 20 C . P . C . or under section 151 C . P. C. after the period of limitation but the facts, in that case had no similarity with the present case. The plaintiff appellant in that case, unlike the instant case, was guilty of extreme negligence and had allowed the period of limitation to expire against the defendant respondent; and in that background it was said that the omitted party is not interested in the result of appeal. But our view is that a party can certainly invoke the powers of the Court under Order XLI, rule 20, C.P.C. if he is not extremely negligent. The Court can also suo motu exercise its power in a fit and proper case.

In Sarshar Ali v. Roberts Cotton Association Ltd. P L D 1963 S.C. 244 objection was raised by the plaintiff appellant that the appeal before the High Court was not properly constituted as defendant No.2 was not made a party within the period of limitation. It was held that defendant No.2 was not a necessary party to the appeal though it is true that if defendant No.2 was a necessary party to the appeal his addition as a party after the period of limitation could not have cured the defect in the constitution of the appeal. However, no .question of the fault of the Court or its officials was involved in that case too.

Mehtab Beg v. Chiragh Ali 1975 S C M d 54 has no relevancy to the facts of the present case. In that case the petitioner sought leave to appeal on the ground that the omission to implead legal representatives of Chiragh Ali was due to a bona fide mistake of the typist who had prepared the memorandum of appeal. This contention was considered by the learned Judge in the High Court and found to be inadequate for condoning the delay and depriving the legal representatives of Chiragh All of valuable rights, which had accrued to them. Obviously the facts of that case are distinguishable and have no relevancy to the facts of the present case. However, the law propounded, shows that in proper cases condonation of delay is permissible.

In V.P.R.V. Chockalingam Chetty v. Sheethai Ache A I. R 1927 P C 252 the plaintiff in appeal failed to implead all the defendants against whom the suit was dismissed by the trial Court and allowed the appeal as against them to become time barred. The appellate Court, in exercise of its discretion, refused to take action under Order XLI , rule 33 so as to deprive the defendants of the very valuable right which they had acquired in consequence of the plaintiffs failure to appeal against the decree in so far as it affected them. It was held that even assuming that under this rule the Court in a proper case might add a defendant as respondent for the purpose of passing a decree against him, there is no sufficient reason for interfering with the refusal of the appellate Court to do so in the circumstances of the case. It would appear that this case is also distinguishable and has no common features with the facts of the case in hand.

In Labhu Ram v. Ram Partab A I R 1944 Lah. 76 it was observed 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. It was also held that in a case in which a necessary party to an appeal has been omitted, the Court cannot exercise any power vested in it under Order XLI, rule 20 to cover the omission, if limitation had already expired. No question of section 5, Limitation Act, arises in such cases. No right vests in any appellant to make an application under Order XLI, rule 20. The discretion to add a party who is interested in the result of the appeal is vested in the Court alone and it is the Court that can make that order suo motu. It cannot therefore, be urged that if the Court is allowed to exercise that power in favour of a certain appellant, the appellant in doing so prefers an appeal against the order of the trial Court or seeks to amend his original memorandum in any manner. The law enunciated in this case does not appear to be a good law and is also based on facts alien to the present case.

7. The above analysis of the case law would show that Order XLI, rule 20 C.P.C. leans towards the view that the Court has power in a proper case to allow a necessary party to be added as respondent even period of limitation in condoning the delay. However, in all the cases, with which we respectfully concur, it has been found that the power to take such action is discretionary and should not be exercised in cases of extreme negligence.

8. In no case the question whether even after the limitation a party whose name was omitted to be entered in the decree sheet could be added was either involved or decided. So the cases do not directly decide the point involved in the present case. However, we are in total agreement with the learned counsel that provisions of Order XLI rule 20 C . P C . should be exercised cautiously because a person in whose name the lower Court has passed a decree against which an appeal is not filed within the period of limitation acquires a vested right which cannot be ordinarily, after the period of limitation, taken away from him but this view can be ignored under special A circumstances.

9. It is true that in the present case the appeal in the Hi g h Court was defective inasmuch as Mst. Riaz Bi, 3 party before the District Judge, was not only vitally interested in the case but was also a necessary party and in her absence it was not possible to pass an order adversely affecting her interest. But who was at fault for this and can it be said that the respondent was responsible for not impleading Mst. Riaz Bi in appeal The fault occurred due to omission of the name of Mst. Riaz Bi in the decree sheet. Therefore, the respondents failure to implead her in the appeal was not the result of her negligence. Her name rather was omitted in appeal due to its absence in the decree sheet and this advanced the case of the respondent. We have also given our due attention to the provision of rule 20 of Order XLI, C . P . C . and are of the view that rule 20 of Order XLI is not exhaustive of the cases and, therefore, in proper cases section 151, C . P . C . can also be invoked.

10. In Order XLI, rule 20;C.P.C. it is stated 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 an appeal is preferred but who has not been made a party to the appeal is interested in the result of appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such a person be made a respondent. It app ears that where a person cannot be blamed for the omission and the fault lies somewhere else, say with the Court or its officials, such a person is not to suffer for such a fault or omission and the defect can be cured even after the lapse of period of limitation fixed for the cause in condoning such a delay not perpetuated by the party.

11. It is settled law that the appeal is against a decree. In the instant case the name of Mst. Riaz Bi does not appear in the decree sheet. This omission, whether due to oversight or the inefficiency of the Officer or the official of the Court who prepared the decree sheet, cannot be allowed to affect adversely the right of the respondent. It is true that in the instant case period of limitation in the High Court fixed for the appeal had expired but we are convinced that the learned counsel for the respondent was misled by the decree sheet. Hence there was no negligence on the part of Ch. Taj, the learned counsel for the respondent, who filed the appeal before the High Court, or the respondent. The maxim Actus legis (curiae) neminem gravabit (the order of the Court would prejudice no man), has always been respected and is fully applicable in the case.

12. Where there is no negligence on the part of a party, the Court is competent to exercise its discretionary powers for the ends F of justice and add the name of a decree holder even after limitation in condoning the delay. In the instant case Mst. Riaz Bi was a necessary party but failure of the respondent to implead her in appeal can in no way be said to be due to his negligence or that of his counsel. It occurred due to the negligence of the official in the District Court, who prepared the decree sheet and her name was not entered in the decree. The High Court, therefore, had the power to condone the delay and implead her as a respondent. We think the bulk of the authorities is in favour of the view that the law of limitation would have no strict application where the mistake occurs due to the omission committed .by the Court or its official. This view prevailed in Sohna v. Khala Singh (1891) 13 All 78, Bindeshri Naikh v. Ganga Saran Sahu (1892) 14 All 154, Kanagappa v. Sakkalinga (1892) 15 Mad. 362 and Girish Chander v. Sasi Sekhareswar Koy (1006) 33 Cal 329.

13. In Kisanrao Manik and others v. Nanaji and others A I R 1935 Nag. 182, where certain persons who were interested in the result of the appeal, were not impleaded by the appellant, the Court held that it could itself make them respondents under Order XLI, rule 20 of the C.P.C. even if no application was made for their joinder. No doubt a contrary view was expressed in V.S.T. Thamsa Thasin Tharanganar v. Mohamed Haji Ganny A I R 1935 Rang. 364 relying on V.P.R.V. Chockalingam Chetty v. Seethai Ache A I R 1927 P.C.252 and Saktiprasanna Bhattacharya v. Naliniranjan Bhattarcharya A I R 1931 Cal. 738 but they are distinguishable and we also prefer to own the view in the former case3 as they are in support of maxim the order of the Court would prejudice no man.

14. As already stated it is true that the power to take action under rule 20 of Order XLI, C.P.C. (corresponding to section 559 of the old C . P. C .) is discretionary and the Courts should decline to c exercise the power where the appellants negligence was extreme. We find support in Raushan Ram v. Sheran Khan A I R 1920 Lah. 72 (2), Maung An Gale v. Ma Min Dun A I R 1921 Upper Burma 13 and The Municipal Committee, Mehar v. Shiv Ram A I R 1923 Lah. 503.

15. As said earlier we are of the view that V.P.R.V. Chockalingam Chetty v. Seethai Ache A I R 1927 P.C. 252 and Labhu Ram v. Ram Partab A I R 1944 Lah. 76 are distinguishable and have no relevancy to the present case. The decree passed by the District Judge did not show in its title the name of Mst. Riaz Bi. On the other hand the decree mentioned the names of only Muhammad Ashraf, Arshad Mahmood, Muhammad Akhtar, Mst. Zubaida Bi and Arshad Bi. The same error occurred in the judgment also. Certified copies of the decree and the judgment, which the respondent obtained from the District Judge for the purpose of preferring the appeal, did not show the name of Mst. Riaz Bi. Mr. Taj, the learned counsel for the respondent accordingly preferred the appeal impleading as respondents only the persons who were shown in the decree sheet. Obviously the counsel for the respondent did not know that Mst. Riaz Bi was also impleaded in the District Court. This fact was only brought to the notice of respondent when the counsel for the appellant, at the hearing of the appeal brought it out as a part of his preliminary objection to the maintainability of the appeal. The outstanding fact is that the omission on the part of the respondent to implead as respondent in the High Court Mst. Riaz Bi, one of the legal representatives of Nathoo, was almost entirely due to the error in the decree sheet which did not unfortunately show this lady as a party. Should the respondent be penalised for this error of the Court We think the answer should definitely be in the negative. One of the first and highest duties of all the Courts is to take care that the act of the Court does no injury to any of the suitors; and when the expression the act of the Court is used, it does not mean merely the act of the primary Court or of any intermediate Court of appeal but act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter upto the highest Court which finally disposes of the case. To meet the contention of the learned counsel for the appellant, Mr. Basharat Ahmad Sheikh, that neither the High Court nor any other Court has any power to allow the omitted party to be impleaded as such after the period of limitation for preferring an appeal has expired, it would be profitable to reproduce Order XLI, rule 20 of the C.P.C. which reads:

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.

16. The reading of Order XLI, rule 20 C.P.C. would show that there is nothing in the terms of this rule to support the contention urged on behalf of the appellant. It cannot be disputed as a matter of fact that Mst. Riaz Bi, sought to be impleaded in the High Court as respondent, is interested in the result of the appeal. She was a party to the suit but had not been made a party to the appeal. Therefore, the terms of Order XLI, rule 20 are satisfied in the present case.

17. It was also argued that this case cannot fall within Order XLI, rule 20 in view of the decision of the Privy Council in V . P. R. V . Chockalingam Chetty v. Seethai Ache A I R 1927 P.C. 252. We have gone through this decision. As said earlier, the facts of that case are distinguishable, but even otherwise this decision cannot be understood as laying down such an absolute proposition. The argument similar to that now advanced on behalf of the appellant in this case, was put forth before the Bombay High Court in case reported as H.H. Darbar Alabhai Vajsurbhai v. Bhura Bhaya A I R 1937 Bom. 401 but a Division Bench of that High Court did not accept it and it was held that the Privy Council ruling in A I R 1927 P.C. 252 cannot be taken as laying down as absolute proposition that no person against whom the right of appeal has become barred can ever be added as a respondent under the provisions of Order XLI rule 20 C.P.C.

18. A Division Bench of the Lahore High Court in Shanti Lai v. Firm Hira Lai Sheo Narain A I R 1941 Lah. 402, expressly accepted the view of the Madras High Court that a party can be added even after lapse of period of appeal if circumstances warrant so.

19. The correct position appears to be that the applicability of the Order XLI rule 20 will depend upon the nature and circumstances of each case and it cannot be laid down as a hard and fast rule that no person who was a party to the suit in the original Court can, in any circumstances, be added as a respondent in an appeal after the period of limitation.

20. Furthermore, the High Court has ample power under section 151 of the C . P. C . to add a respondent to the appeal even after the expiry of the period of limitation prescribed for the appeal against him if, in the peculiar circumstances of the case before it, it thinks fit to do so. The decision in Shanti Lai v. Firm Hira Lai Sheo Narain A I R 1941 Lah. 402, expressely supports this view. This principle has also been adopted by a Division Bench of the Patna High Court in Padarath Mahton v. Hitan Singh A I R 1924 Patna 773. Ourfi conclusion, therefore, is that the language of Order XLI rule 20 C.P.C. is neither exclusive nor exhaustive so as to deprive a Court of any inherent power which it may possess and can exercise in special circumstances and which has been saved by section 151 C.P.C. Even under Order VI, rule 17 %.P.C. after the period of limitation in the peculiar circumstances, as this ease has, an amendment can be allowed to add a party and after such an amendment it will date back to the actual date of institution of the suit.

21. Mr. Basharat Ahmad Sheikh had also argued that the respondent had been, to some extent, negligent in not impleading Mst. Riaz B as respondent and Mr. Taj should have been vigilant to look into the original file of the District Court prior to the filing of the appeal before the High Court. The argument has no substance. It would be l extraordinary to expect a counsel entrusted with the task of preferring an appeal to assume that the parties have been erroneously stated in the title of the decree and the judgment. On the other hand there was every justification for him to assume the contrary. It is not normally possible for a counsel to check up these details at the time of filing his memorandum of appeal nor would a counsel ordinarily consider it to be necessary to do so. In the instant case when the respondents counsel came to know about the mistake in the title of the decree and judgment of the District Judge and the consequent omission to implead Mst. Riaz Bi as respondent in the appeal, he took immediate steps to put things in order. We, therefore, find it not possible to impute laches or negligence on the part of Mr. Taj, the learned counsel for the respondent, or his client.

22. We are satisfied that this is a fit case where the High Court has rightly exercised its inherent powers to condone the delay in impleading Mst. Riaz Bi, as respondent. The peculiar circumstances of this case warranted condonation of delay in impleading Mst. Riaz Bi as respondent under Order XLI rule 20 C. P. C. even after the expiry of the period of limitation. We do not agree with Mr. Basharat Ahmad Shaikh that Mst. Riaz Bi was not interested in the result of the appeal.. In the circumstances we feel that Mst. Riaz Bi will be considered o be interested in the result. of the appeal.

For the view we have taken in the matter, we find no force in this appeal which is dismissed hereby. In the circumstances of the case we make no order as to costs.

A.A./231/S.C.A. Appeal dismissed.

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