TATIA, J. - (1.) HEARD, learned counsel for the parties on application filed by the appellant under Sec. 151 read with Order 1, Rule 10 CPC.
(2.) THE appellant submitted that due to bona fide mistake the appellant impleaded respondent Sheikh Sharif Ali S/o Mulla Ali Mohammed as respondent No. 2. In the decree-sheet after the name of Sheikh Sharif Ali, the word `bajay" was mentioned and thereafter, the name of Hakimudeen S/o Mulla Mohammad Hussain was mentioned. While preparing the memo of appeal, the word "bajay" could not be noticed. As a matter of fact, since Sheikh Sharif Ali died before the decree was passed in the original suit, the name of Hakimudeen S/o Mulla Mohammad Hussain may be shown in place of Sheikh Sharif Ali as respondent No. 2. Hence, the appellant wrongly impleaded deceased Sheikh Sharif Ali instead of hakimudeen, therefore, he has requested that appellant may be permitted to implead hakimudeen as a party respondent in place of Sheikh Sharif Ali. This application was filed by the appellant on 28. 08. 2001. The respondent No. 1 filed he reply to the application and submitted that this Court as back as on 19. 12. 2000 pointed out that there is a defect in array of the parties and also took note of the fact that Shekh Sharif Ali expired in the year 1998 and this fact has been noticed by the office in the month of September, therefore, according to learned counsel for the respondent No. 1, the application deserves to be dismissed only on the ground of such inordinate delay without thee being any application for not taking any steps by the appellant in time. Learned counsel for the respondent, however, submitted that when the appeal against the proposed respondent became barred by time, the respondent now cannot be impleaded and the appeal itself is incompetent and liable for dismissal for want of necessary party. The learned counsel for the respondent relied upon various judgments of the Hon'ble Apex Court. In the judgment of the Hon'ble Apex Court delivered in case of Ram Krishna & Ors vs. Roop Chand Molla & Ors. (1), Hon'ble the Apex Court held that the appeal is liable to be dismissed when original defendants were not impleaded as party in the Special Leave Petition before the Supreme Court by the plaintiff-appellant. In this case when application for imploding respondent, who expired after defect was pointed out, was also dismissed by the Hon'ble Apex Court. In the above case the necessary parties were not impleaded at all and, therefore, the Hon'ble Apex Court refused to permit impleading the respondent holding that the appellants committed grave error in not impleading the original defendants as parties. But here in this case, this is not a case of not impleading necessary parties but this is a case of misdescription of a party. Only by misdescription,t he original respondent is being sought to be removed from the array of parties but, at the same time, by seeking impleadment the appellant is seeking addition of the party who is none else but the legal representative of the originally impleaded party in the appeal and the suit. Therefore, the judgment cited by learned counsel for the respondent No. 1 has no application to the facts of the present case. Another judgment relied upon by the learned counsel for the appellant is delivered by the Hon'ble Apex Court in Ch. Surat Singh (dead) & Ors. vs. Manohar lal & Ors. (2), wherein the Hon'ble Apex Court dealt with the situation when the necessary party was not impleaded. The Hon'ble Apex Court observed that where son of the plaintiff with other persons was brought on record on the death of the plaintiff during the pendency of the appeal before High Court and the fact that he was represented by a counsel, was clearly shown in the certified copy of the order of the High Court, but he was not impleaded as a party in appeal before Supreme Court, the fact hat he was so impleaded admittedly being within knowledge of appellants and the appellants failed to show any reason for not impleading him then the Hon'ble Apex Court held that the appeal was liable to be dismissed for want of necessary party to the appeal.
(3.) HERE, in this case, the explanation given by the appellant is that in decree-sheet as quoted above, the name of the deceased was clearly mentioned and the deceased was impleaded as party. The word "bajaya" at the back of the decree-sheet and that was because of confusion. In the facts of this case, if appears that a name of dead person has been shown in the decree-sheet in the cause title of the decree-sheet itself and the name of the successor is on the back of the decree-sheet, might have caused bone fide confusion in preparing the appeal. In the case cited by learned counsel for the appellant is Surat Singh's case, the Hon'ble Apex Court took note of the fact, that no reason has been shown causing any confusion for impleading the dead person as party. in the above case, Lt. Col. Yadav was a party to the appeal as he was being represented by his counsel was clearly shown in the certified copy of the order of the High Court produced along with memo of appeal. Therefore, this judgment also has no application to the fact of the present case. Another judgment cited by the learned counsel for the appellant is delivered in the State of Gujarat vs. Syed Mohd. Baquir EL Edross (3), wherein the appeal was dismissed as abetted because of the fact that no steps were taken to bring legal representative on record for about more than six months. The judgment cited by the learned counsel for the respondent No. 1 has no application to the fact of this case. ;