M.R. Sharma, J. - (1.) THE facts are given to the Order of reference dated January 25, 1973, prepared by me sitting in Single Bench. The case was referred to the Division Bench for decision on two points: - - (i) Whether the memorandum of appeal was properly stamped or not; and (ii) Whether the appeal should be held as incompetent on account of late impleading of Ram Lal defendant as a respondent in the appeal.
(2.) THE Division Bench had held that the memorandum of appeal had not been properly stamped but that decision has been up -set by the Supreme Court of India and the appeal has been ordered to be heard and decided on merits. On the second point, Mr. Majithia, the learned counsel for the appellants, has argued that Ram Lal had originally been impleaded as a defendant in the suit alongwith the other defendants who are appellants before us and since he did not contest the suit, inaction on his part could not put in jeopardy the rights of the other defendants who are now before us as appellants. In support of his submission, the learned counsel has relied upon Mt. Parwati Kaur v. Manna Lal Khan Tan : A.I.R. 1956 Pat 414. In that case it was held that when Order 41, Rules 4 and 33, Civil Procedure Code were read together, it showed that one of the defendants could file an appeal without impleading the other defendants as respondents, and if the appeal proceeded on a ground common to all the defendants, the appellant Court might exercise the power of varying the decree in favour of the non -appealing defendants also. This case was followed with approval in Brij Mohan Lal Dhar v. Raj Kishore : A.I.R. 1959 P&H 555, and it was held therein that the order under Order 41, Rule 4, Civil Procedure Code is to be made in favour of and not against a non -appealing person. Further, the principles of natural justice require that no decision against a party should be made without affording him an opportunity to place his case before the deciding authority and it is not the principle of natural justice that no order can be passed in favour of a person who is not being heard. From this principle it was inferred that non -impleading of a proforma -party to whom relief can be granted under Order 41, Rule 4, Civil Procedure Code did not affect any principle of law of justice. Similar view was taken by another Division Bench of this Court in Ram Chander v. Amar Singh, 1973 Rev. L.R. 716.
(3.) SITTING in Division Bench, we are bound to follow with respect the earlier Division Bench Judgments of this Court. Had these cases been brought to my notice when I was sitting in Single Bench, 1 would perhaps not have referred this case to the larger Bench. Even otherwise, if an appeal is properly filed by some of the parties to the dispute, the Court does have the right to allow another party to be impleaded even at a late stage if valid grounds for adopting that course are made out. Once the Court allows the amendment of the memorandum of appeal by allowing the appellant to add to or to delete from the memorandum of appeal a respondent, the amended memorandum of appeal would be deemed to have been filed on the date of its institution As noticed in the order of reference Ram Lal was allowed to be impleaded as a respondent by P.D. Sharma, J. subject to all just exceptions. Since he had not contested the suit filed by the respondents and no relief is being granted to him in this appeal, we make the order passed by P.D. Sharma, J. absolute and allow him to be impleaded as a party. The effect of our order is that Ram Lal would be deemed to have been impleaded as a respondent on the date when the memorandum of appeal was presented. In this view of the matter, the question whether there would be any conflicting decree or not becomes optics. For similar reasons the principles of law enunciated in Babu Sukhram Singh v. Ram Dular Singh : A.I.R. 1973 S.C. 204 and in Dwarka Prasad Singh v. Harikant Prasad Singh : A.I.R. 1973 S.C. 655 cannot be attracted to the instant case.;