Mehar Singh, J. -
(1.) THIS is a second appeal by the defendants against the judgment and decree, dated 5 -9 -1950, of the District Judge at Bhatinda dismissing their appeal, against the judgment and decree, dated 27th Katik, 2006 Bk, of the Additional Subordinate Judge, 2nd Class at Faridkot. The plaintiffs are the landlords of the land in suit and Shrimati Kishno, widow of Kahan Singh, of village Bishnadi, was the occupancy tenant of the same land. She died issueless on 4th Besakh, 2004 Bk. The defendants being in possession of the land, the plaintiffs brought a suit for possession of the same against them. The suit was decreed on 27th Katik, 2006 Bk. Against that decree the defendants filed an appeal in the Court of the District Judge at Bhatinda.
(2.) A preliminary objection was raised that the appeal was not properly constituted as Ishar Singh, son of Fateh Singh, one of the plaintiffs, had not been made a party respondent to the appeal, and the time for bringing him on the record had already expired. There were twenty -one plaintiffs and in the copy of the judgment of the trial Court only names of three out of them were given, but in the copy of the decree the names of all the plaintiffs were stated. It was contended before the learned District Judge that it was through mistake that Ishar Singh, son of Fateh Singh, had not been impleaded as a respondent in the appeal, and that permission should be given to bring him on the record as such, but this argument was rejected by the learned District Judge following - 'Chocka -lingam Chetty v. Seethai Ache', : AIR 1927 PC 252 (A); - 'Labhu Ram v. Ram Partap', : AIR 1944 Lah 76 (FB) (B); and - 'Ram Das Singh v. Ram Anup Lal Rai', : AIR 1949 Pat 90 (C). The Learned Counsel for the appellants now urges that it was by bona fide mistake that the name of plaintiff Ishar Singh, son of Fateh Singh, was omitted from the array of respondents and the mistake arose out of two facts; in the first place, because in the copy of the judgment only three plaintiffs were named and Ishar Singh, son of Fateh Singh, was not among them, and secondly, because there were two plaintiffs of the name of Ishar Singh and one plaintiff Ishar Singh, son of Sundar Singh, having died during the pendency of the suit and his legal representative having been brought on the record, it was believed in good faith that plaintiff Ishar Singh was duly represented in the appeal by his legal representative as a respondent. He, therefore, urges that plaintiff Ishar Singh, son of Fateh Singh, should be permitted to be brought on the record as a respondent in these circumstances.
Reliance is placed on - 'Bishna v. Sucha Singh',, AIR 1934 Lah 402 (2) (D) and - 'Kunhanna Rai v. Manakke',, AIR 1929 Mad 343 (E). In the first of these cases the name of one of the plaintiffs had been omitted from the copy of the judgment, though it was given in the copy of the decree, and the name of that plaintiff was omitted in the appeal. On an objection being taken to the constitution of the appeal by the plaintiffs because of that omission, the learned Judge held that
litigants and members of the legal profession have the right to expect that the headlines of attested copies of judgment would show the names of the parties correctly. The omission was through a mere oversight and that he (the emitted plaintiff) should be made a respondent.
But in the present case it was not only the name of the plaintiff Ishar Singh, son of Fateh Singh, that was omitted from the copy of the judgment, but the names of seventeen other plaintiffs were also omitted, and yet those seventeen plaintiffs were made respondents in the appeal. It is thus clear that it was not a case of a bona fide mistake on this account and so on facts, AIR 1934 Lah 402 (2) (D) will not apply to the present case. The second authority is exactly in point. In that case the name of one of the plaintiffs, who was a respondent in the second appeal, was left out in the Letters Patent Appeal and the reason was that his name resembled very closely the name of one of the defendants. A Division Bench of the Madras High Court held, in these circumstances:
that it was a bona fide mistake and this Court has power to correct a mistake and to have the appeal memorandum amended by inserting the proper name and bring on record the proper party.
In the present case also the name of plaintiff Ishar Singh, son of Fateh Singh, has been left out under a bona fide mistake that the legal representative of another plaintiff of the same name was given in the appeal as a respondent. We defer to the view taken in the Madras case.
(3.) THE Learned Counsel for the respondents relies the same three case upon which the learned District Judge has done. of those cases the third was not a case of a bona fide mistake. In the second case, that is, : AIR 1944 Lah 76 (FB) (B), it has been held that in a case in which a necessary party to an appeal has been omitted, the Court cannot exercise any power vested in under O. 41, R. 20 to cover the omission, and that S. 151, C.P.C. too cannot be invoked in such cases and support has been sought from : AIR 1927 PC 252 (A), for this view; that is the first case relied upon by the learned District Judge in his judgment.;