B.L. Yadav, J. - (1.) THIS petition Under Article 226 of the Constitution of India is directed against the orders of the Board of Revenue dated 15.10.1982 and 26.04.1982.
(2.) THE facts leading to the present petition are that Respondent No. 5 Anand Pal Singh filed a suit Under Section 229 -B/209 of the U.P. Zamindari Abolition and Land Reforms Act, (for short the Act) impleading the State of U.P. through the Collector and the Nagar Palika, Aligarh and the Petitioners as Defendants. The suit was contested by the Petitioners denying the plaint allegations and alleged that the Plaintiffs were neither bhumidhar not in possession. The suit was decreed and Defendants were directed to be ejected and damages of Rs. 200/ - was to be paid. The Petitioners' appeal was allowed by the Additional Commissioner and second appeal was filed by Respondent No. 5 before the Board of Revenue impleading the Gaon babha. as one of the new Respondents, whereas Nagar Palika Aligarh, which was a party to the suit and in the First Appeal, was not impleaded in the Second Appeal. On behalf of the Petitioners an objection was raised that the appeal was not maintainable as the Nagar Palika, Aligarh has not been impleaded as a party which was party in the suit and the Gaon Sabha was the newly added party. Thereupon the counsel for the Respondent moved an application for impleadment of the Nagar Palika, Aligarh as one of the Respondents and it was alleged that by over -sight the Nagar Palika, Aligarh could not be impleaded as a party to the appeal. This application was allowed by the Board of Revenue by Order dated 06.03.1982 (Annexure -3 to the petition) and the Nagar Palika, Aligarh was ordered to be impleaded as a party to the appeal and Rs. 100/ - was imposed as cost on the Respondent. The Petitioners preferred review application which was also dismissed. It is against these orders the present petition has been filed. Sri B.B. Paul appearing for the Petitioners urged that the provisions of Order 41 Rule 20 C0de of Code of Civil Procedure were directory inasmuch it was discretion of the Court in case a party to the suit has not been impleaded in appeal, either to adjourn the hearing of the appeal or direct such person to be made Respondent or not to do so and this discretion must be exercised after great care and unless a bona fide mistake was proved, the discretion should not be allowed. In the instant case the Uaon Sabha was not a party to the suit but was impleaded as a party in the appeal, whereas the Nagar Palika, Aligarh was a party to the suit and was deliberately omitted to be impleaded as a party in the Second Appeal. Hence there was no justification to allow the application of the Respondent to implead the Nagar Palika, Aligarh. He relied on Tula Ram v. Mangalo(r) : AIR 1954 All. 10, Madart Gopal v. Nihal Chand, ILR 1951 Pepsu 68, Dipan Rai v. Kapil Deo Singh : AIR 1932 All. 120, Hafiz Abdullah v. All : AIR 1923 All. 291, Abrar Husain v. Ahmad Raza : AIR 1937 All 82, Ch. Surat Singh dead) v. Manohar Lai., AIR 197l SC 240, V.PR.V. Chokalmgam Chetty v. Seethai Ache, AIR 27 PC 252, Faman Lai v. shanti Lai., AIR 1961 All 78 Badri Narain v. East Indian Railway, AIR 1927 PC 23 and Laghu Ram v. Ram Pratap, AIR 1944 Lah. 76. It was further urged that in view of Order 4i Rule 20(2) the application for Impalement was made by the Respondent after the expiry of the period.
(3.) SRI G.N. Verma, learned Counsel for the Respondent urged that under Order 41 Rule 20 even though the provisions were that a party to the suit has not been impleaded as a party to the appeal, the Court may adjourn the bearing to a future date and direct such person to be made a party. Even though the word ' may ' has been used into context as it has been used for the order to be passed by the Court. The word ' may ' here means "shall " and was mandatory. Hence in case an application was filed the Court was bound to allow that application and direct the person to be impleaded as Respondent. As this order has already been passed and the ends of justice require that the order may be maintained as substantial justice has been done and no ground for interference has been made out.;