- (1.) THE circumstances that give rise to this second appeal are that Rang Bahadur and Raj Babu sons of Shiv Dayal and Munshilal brought a suit against Hari Singh and Murli in the court of the SDO Behror on 22. 6. 56 for recovery of possession on the ground that the defendants had wrongfully trespassed upon the land in dispute and hence ought to be ejected therefrom. THE trial court after framing necessary issues recorded the evidence of the parties and granted a decree with costs in favour of the plaintiffs on 14. 10. 57. One of the defendants Murli went up in appeal before the Additional Commissioner and in the memorandum of appeal that was filed by him on 17. 10. 57 Rang Bahadur and Hari Singh were impleaded as respondents. Nothing was stated in this memorandum as regards the other two, Raj Babu and Munshilal, in whose favour as well a decree was passed by the trial court. It may be observed here that the copy of the decree issued by the trial court to the appellants contains the names of all the three plaintiffs in the title of the suit. In the copy of the judgment issued by the trial court to the appellant contains the names of all the 3 plaintiffs in the title of the suit. In the copy of the judgment issued by the trial court to the appellant the name of Rang Bahadur alone appears in the title though the first line of the judgment starts with the assertion that the suit was instituted by Rang Bahadur and two others. On 20. 12. 57 application was put up before the lower court by Murli to the effect that as in the judgment of the lower court the name of Rang Bahadur alone appears and as it was known subsequently that Raj Babu and Munshilal were also joint with him as plaintiffs in the suit, permission may be granted to the appellant to join them in the appeal. This application was rejected by the lower appellate court and the appeal was rejected on the ground that as it had become time barred against two of the plaintiffs it should fail in toto. Hence this second appeal before us.
(2.) WE have heard the learned counsel for the parties and have examined the record as well. The learned counsel appearing for the appellant has argued before us that the appellant's counsel was misled by the certified copy of the judgement of the trial court in believing that the suit was filed by Rang Bahadur alone and as such the appellant should not be penalised for the lapse of his advocate as the appellant himself being illiterate did all that could be expected of him by engaging a lawyer. It has been replied by the respondent that the name of all the plaintiffs appeared in the certified copy of the decree and in the first sentence of the certified copy of the judgment as well and if trouble had been taken to read either of them carefully the position would have been perfectly clear. It has also been argued that sec. 5 of the Indian Limitation Act or sec. 151 C. P. C. has no application to the present case as it is governed by the provisions of Order 41 Rule 20 C P. C. A number of rulings have been cited on behalf of the appellant. They may be discussed briefly as most of them have no real applicability to the present case. In 1958 RRD 67 appeal was filed beyond three days of the Limitation period on the advise of a pleader and benefit of sec. 5 was allowed to the appellant. In A. I. R. 1959 Madhya Pradesh 108 it was observed that though there is no general rule that wrong advise of counsel can always be a sufficient cause for extension of limitation, there may be cases in which a lawyer's wrong advice without there being any negligence or carelessness may amount to sufficient cause In 1955 Madras 129 it was observed that the rules of limitation should not be given a strained interpretation which would work hardship on the affected persons Even if a stricter view is taken the delay can be excused under sec. 5 of the Limitation Act. In 1955 Calcutta page 553 it was observed that once a client proves that he acted bonafide and with reasonable care in approaching a particular lawyer who gave him wrong advice with the result that the period of limitation expired before any step was taken, he is not precluded from showing that it was owing to the reliance placed on such advice that he could not present an appeal within limitation. In A. I. R. 1954 Calcutta 283 it was observed that a case for delay which a party could have avoided by the exercise of the care and attention cannot be a sufficient case. In other words the court must be able to say that delay was reasonable and a cause arising from the negligence of the party cannot be a sufficient cause within the meaning of sec. 5. In 1955 Mysore - 64 where the delay in obtaining copies was due to a bonafide default on the part of the counsel's clerk it was held that the delay may be condoned on the principle that the party should not suffer on account of negligence of counsel or counsels clerk. In the present case the application before the lower appellate court was that the appellant came to know subsequently that Rang Bahadur was not the sole plaintiffs and that there were two others joint with him. It has not been stated in this application that the counsel which he engaged for presenting the appeal gave him any wrong advice or that the clerk of the counsel did not reveal full names to him. The certified copy of the decree contains clearly the names of the 3 plaintiffs and the certified copy of the judgment as well, if its first sentence is read, would also show that the plaintiffs in whose favour the suit was decreed were three. It was not at all argued before us as to what were the reasons which led the appellant or his counsel to presume that there was only one plaintiff in the case. In the absence of any explanation in this behalf the irresistible inference is that sheer negligence and carelessness was responsible for creating this impression and even if it be assumed that sec. 5 has application to the present case it would appear that there is no sufficient cause within the meaning of sec. 5. We may now refer to some of the decisions cited by the respondent which have a direct bearing upon this appeal. In AIR 1954 Lahore 75, which is a Full Bench decision, it was clearly laid down that when once time for an appeal has ran out it is not possible for an appellant subsequently to implead those defendants who were not originally impleaded as respondents in the appeal. In a case in which a necessary party to an appeal has been omitted, the court cannot exercise any power vested in it under Order 41 Rule 20 to cover the omission. No question of sec. 5 Limitation Act arises in such cases. No right vests in any appellant to make an application under Order 41 Rule 20. The discretion to add a party who is interested in the result of the appeal is vested in the court alone and it is the court that can make that order suo moto. In AIR 1954 Punjab - 20, it was held that where the rights of parties are joint the appeal in a case of abatement by reason of non-joinder of a necessary party abates in toto and not in part.
(3.) IN AIR 1958 Andhra Pradesh 743 it was observed that Order 41 Rule 20 is not specific terms made subject to sec. 22 of the Limitation Act as in the case of Order 1 Rule 10 CPC. But the clause "interested in the result of the appeal" introduces a restriction on the power of the appellate courts namely that the persons ought to be added should be affected by the result of the appeal. The plain meaning of this clause cannot leave any room for doubt that before a party to a suit could be introduced as a supplemental respondent his interest in the appeal must be made out, i. e. it should be shown as to how he would be affected by the decision in the appeal if he does not appear and contest the matter. Prima facie if the time for filing the appeal had expired against a person who was exempted by the trial court a valuable right, viz holding a decree in this favour is acquired by the person and there is no reason why this right should be destroyed. It was also pointed out that Order 41 Rule 33 does not enable a court to add a party for the purpose of giving a decree against him if it could not be done by virtue of Order 41 Rule 20 CPC. In AIR 1959 Madhya Pradesh 52, it was held that a joint decree-holder who has not been joined as a respondent within time is not a person interested in the result of the appeal within the meaning of Order 41 Rule 20. In that case A and B, members of a joint Hindu Family sued C for possession and obtained a decree. C appealed against the decree joining only A as respondent. After several months C applied under Order 41 Rule 20 for making B as respondent. Except for over-sight and inadvertence, as in the present case before us, no other ground had been mentioned in that application to explain the omission of B's name from the array of respondents. Reviewing the entire case law it was held that B was a necessary party to the appeal and the decree in his favour had become final. We find ourselves in respectful agreement with these views. It is evident that the omission of the names of two of the respondents in whose favour a decree was passed by the trial court was due entirely to negligence or inadvertence and after the expiry of the period of an appeal those persons cannot be held to be interested in the result of the appeal within the meaning of Order 41 Rule 20 CPC. The lower appellate court, therefore, came to a correct conclusion in the case. There is no substance in this appeal which is hereby rejected. .;