- (1.) THIS is an appeal against an order of the Additional Commissioner, Jodhpur, dated 15. 9. 54 rejecting the preliminary objection raised by the appellants who were the respondents in the appeal pending before him. The appellants objected to the maintainability of this appeal before the lower appellate court on the ground that Sujan Singh was not impleaded in appeal and the decree passed in his favour by the trial court would remain in fact, the hearing of the present appeal may lead to two inconsistent decrees and hence the appeal should be rejected. The lower appellate court rejected this contention and hence this appeal.
(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The suit was originally filed against a number of defendants and as a result of the trial, the original court dismissed it Sujan Singh was one of the defendants when the decree of the trial court was drawn up. The plaintiffs went up in appeal before the Additional Commissioner, Jodhpur but did not implead one of the defendants Sujan Singh as a respondent in that appeal. The learned counsel for the appellants has cited a number of rulings on the point in support of his contention, In A. I. R. 1926 Calcutta 667, the plaintiff brought a suit against 14 defendants claiming from them rent with interest on the arrears at the rate of 75 per cent, per annum. The tenancy was created in favour of two persons who executed a kabuliyat and the defendants had succeeded to the interest of these two persons by inheritance and purchase. One of the defendants died before the institution of the suit and the heirs of this defendant were not properly summoned. The suit was decreed in full against the remaining defendants by the court of first instance. Against this decree only four defendants appealed. The appeal was allowed and the plaintiffs were held entitled to get damages at 12% per annum, instead of 75% per annum on arrears. Against this decision, the plaintiff appealed before the High Court and joined as respondents only those four defendants who had appealed before the lower appellate court. It was held that if the appeal before the High Court were to be allowed, there will be two inconsistent decrees, viz. a decree for arrears of rent with damages at 12% against some of the tenants and a decree for arrears of rent with interest at 75% per annum against the four respondents, in that appeal. In these circumstances, the objection of nonjoinder was held as fatal to that appeal which was dismissed. In A. I. R. 1935 Patna 4, the three plaintiffs, claimed exclusive possession over the land in dispute for the purpose of building their khalihans. That claim was negatived by the court of first instance. It was not their case that each of the plaintiffs was separately entitled to any share in the dispute land. In an appeal by all the plaintiffs, one of them died and his legal representatives were not brought on the record. It was held that the result of not bringing on the record, the heirs of the deceased plaintiff was that the trial court's finding that the plaintiffs were not entitled to exclusive possession must in any case stand so far as they were concerned. The result of reversing the decision of the trial court on the appeal of the remaining plaintiffs would be that where as the trial court had held that the plaintiff were not entitled to exclusive possession the appellate court would be holding that the plaintiffs were entitled to exclusive possession and the effect thus would be of having two contrary decisions of two competent courts and the whole appeal was, therefore, held to have abated. In A. I. R. 1940 Lahore 314, the point involved was rather different from the present case. An appellant had omitted to implead a necessary respondent in that case and the effect of the omission was the dismissal of the appeal. The question was as to whether sec. 5 of the Limitation Act could govern the application of the appellant for impleading that respondent. It was held that the section was not so applicable in the present case. No application whatsoever has been made for invoking sec. 5 of the Limitation Act. In A. I. R. 1937 Lahore 180, also the point was a bit different. It was held therein that the power conferred upon the appellate court by O. 41, R. 20, C. P. C. can be used in favour of that person alone who is interested in the result of the appeal and the defendants against whom a suit has been dismissed and as against whom the right of appeal has become barred is not a person interested in the result of the appeal filed by the plaintiff against the other defendants. In A. I. R. 1954 Allahabad 436, it was laid down that the principle guiding the abatement of an appeal in part or as a whole is that the decision of the appeal should not result into inconsistent decrees. In a suit for joint possession of certain plots of land under sec. 180, U. P. Tenancy Act where the shares of the different plaintiffs are specified, the mere specification of shares does not alter the nature of the joint decree passed in their favour and the appeal abates as a whole for the appeal against the joint decree has abated against one of the joint decree-holders In A. I. R. 1954 Punjab 20, the plaintiffs brought a suit seeking to correct an entry in the revenue records, who were shown as holding jointly with other members of their family 1/5th share of the land According to the plaint they were entitled to 1/3rd. There were four defendants in the case and the suit was dismissed. One of the issues that arose in the case was whether the plaintiffs' ancestors had not been born of a duly wedded wife. This point was decided against the plaintiff. The plaintiffs' appealed and failed to implead one of the defendants Ajay Ram Singh. The plaintiffs sought the permission of the court to add Ajay Ram Singh under O. 41, R. 20 and as limitation for filing an appeal against him had expired the District Judge rejected the prayer of the plaintiffs. Thereafter the appeal was dismissed. It was held that Ajay Ram Singh could not be said to be an interest party as the decision of the trial court in his favour was inalterable and as his rights are joint with the rights of other respondents, even though shares may be definite, yet if the appeal is allowed against the other respondents, there will be two contradictory judgments on the issues arising in the case. Where the rights of parties are joint, the appeal in case of abatement abates in toto and not in part. The appeal was rejected. In A. I R. 1927 Privy Council 252, the plaintiff whose suit had been dismissed against all the defendants failed to appeal against the decrees in so far as they effected some of them and allowed the appeal as against them to become barred. The appellate court in the exercise of its discretion refused to take action under O. 41, R. 33 so as to deprive those defendants of their valuable rights which they acquired inconsequence of the plaintiff's failure to appeal against the decree in so far as it affected them. This exercise of direction was not interfered with by the Privy Council and the appeals were rejected.
(3.) ON behalf of the respondents, A. I. R. 1940 Patna 671 has been cited. In that case the appellant, sued for rent of a house occupied by the defendants on a monthly rent of Rs. 10/ -. The defendants remained in occupation of the house inspite of the notice to quit. The suit was for recovery of ten months arrears of rent and for mesne profits from the date of the determination of the tenancy. ON 30th April, 1937, a petition of compromise was filed. By this agreement, the defendants undertook to vacate the house on 15th May and to pay Rs. 84/-to the plaintiffs by 5th of May, in settlement of the plaintiff's claim. It was also agreed that if this amount was not paid by the due date, the plaintiffs would have a decree for the full amount claimed. The house was vacated on 15th May, as agreed. The sum of Rs. 84/- was not paid on the stipulated date Among the parties was a minor plaintiff and three minor defendants. The guardians of these minors had not been permitted by the court to enter into the compromise on behalf of their wards. ON 5th May defendant 1 applied to the court to discharge the guardian ad litem of the minor defendants and to be appointed in his place and to be permitted to compromise the suit on behalf of the minor defendants. The court directed this application to be heard on 10th May, which was also the date fixed for considering the compromise petition. No orders were passed on 10th May but the defendants were permitted on that date to deposit Rs. 84; -. ON 27 May, the court directed the compromise to be recorded and as the time was the essence of the contract and as the agreed money had not been paid on 5th May, the plaintiffs were given a decree for the full amount claimed The defendants appealed to the District Judge. He was of the opinion that the compromise was not for the benefit of the minor defendants and time was not of the essence of the contract and the plaintiff's suit was therefore dismissed. The plaintiffs went up in appeal before the High Court without including the minor defendants. A preliminary objection was taken that the appeal has abated. It was held that as the plaintiffs are satisfied with a decree against the major defendants there is no bar to their obtaining such relief. It appears that the fact that the trial court had not permitted the guardian of the minor defendants to enter into compromise by the 5th of May which was the date fixed for the payment of the stipulated sum and that no permission had been given to the minor plaintiff, were considered and on that basis the compromise was held voidable against all parties other than the minors and the major defendants were not permitted to escape the liability which they undertook. The principle to be deduced from all these decisions is that where non-joinder of a party would result in two inconsistent decrees of competent courts, the defect would prove fatal, otherwise not. In the present case, the plaintiffs claimed arrears of rent in respect of the land in dispute against a number of defendants alleging them to be cultivating the land jointly. One of these defendants Pira died during the pendency of the suit. The plaintiffs, vide their application dated 26. 8. 47, applied before the trail court that Pira had left behind four sons Jawan Singh, Umed Singh, Jagat Singh and Sujan Singh ; the two last named persons were minor and Jawan Singh may be nominated as their guardian and all these persons be brought on record. In the decree drawn up by the trial court, the names of all these persons appear. While preferring the appeal before the first appellate court, the names of Jawan Singh and Umed Singh were included among the respondents but not those of Jagat Singh and Sujan Singh. The learned counsel for the appellant has strenuously argued that the appeal if allowed by the lower appellate court, would result in two inconsistent decrees of competent courts. Looking to the circumstances of the case, we find no substance in this contention. Pira, the original defendant in the case would be represented effectively by Jawan Singh and Umed Singh before the lower appellate court. Jawan Singh has been impleaded as the respondent in the lower appellate court. He occupies a double capacity by virtue of being a son of his deceased father and a guardian of his minor younger brothers. It is merely defective expression whereby a reference has been made only to his first capacity in the memorandum of appeal. A reference to the second capacity can be made by way of an amendment for it would neither mean and addition of a new party nor any change in the nature of the pleading. The ommis-sion for these reasons is not fatal to the appeal. The order of the lower appellate court is, therefore, correct and calls for no interference .;