Gujarat High Court
Ganesh Co-Operative Housing Society ... vs Ishwarbhai Keshavbhai Patel on 14 August, 2001
Equivalent citations: (2002)1GLR159, 2002 A I H C 534, (2002) 1 GUJ LR 159, (2002) 2 CIVLJ 700, (2002) 1 CURCC 565, (2001) 3 GUJ LH 702, (2002) 3 ICC 568
Author: J.R. Vora
Bench: J.R. Vora
JUDGMENT J.R. Vora, J.
1. Appeal From Order No. 291 of 2000 has been filed by the present appellants being aggrieved by the judgment and order dated 27th of July, 2000 rejecting the appellant's application Exh. 5 for temporary injunction in Spl. Civil Suit No. 184 of 1999 by the Court of Civil Judge (S.D.), Surai. Present appellants were the plaintiffs and suit was filed for specific performance of the contract and for declaration and for the permanent injunction. While Appeal From Order No. 292 of 2000 is filed by the appellants being aggrieved by the judgment and order dated 21st of July, 2000 rejecting the Appellants application Exh. 5 for temporary injunction in Spl. Civil Suit No. 183 of 1999 by the Court of Civil Judge (S.D.), at Surat. The said suit also was filed for declaration and injunction and for the specific performance of the contract. In both the Appeals From Orders, present appellants were the plaintiffs and present respondents were the defendants in the abovesaid suit. In Spl. Civil Suit No. 184 of 1999 the subject-matter of the suit is a property situated at Village Umra in Taluka Choryasi, Sub-district and District Surat, bearing Survey No. out of 155 and out of 156 and T. P. Scheme No. 4 (Umra south) Final plot No. 136 which is admeasuring 5261 sq. meters. While in Spl. Civil Suit No. 183 of 1999, the subject-matter of the suit i.e. suit property is a land situated at Village Umra, Taluka - Choryasi, Sub-district and District Surat, out of Survey No. 159, T. P. Scheme No. 4 (Umra South), Final Plot No. 141, admeasuring about 13282 sq. meters. In Spl. Civil Suit No. 184 of 1999, it is alleged that the defendant Nos. 1 and 2 had entered into an agreement dated 27-6-1996 for sale of the suit property with the plaintiffs and said agreement was registered on 7th November, 1996. While in Spl. Civil Suit No. 183 of 1999, defendant No. 1 had entered into an agreement with the plaintiffs on 27th July, 1996 to sell the above land and the agreement was registered on 7th of November, 1996.
2. In the abovesaid both the Appeals, Applications i.e. Civil Application No. 9914 of 2000 and Civil Application No. 10481 of 2000 in C. A. No. 9914 of 2000 and Civil Application No. 9911 of 2000 and Civil Application No. 10482 of 2000 in C. A. No. 9911 of 2000 are filed for joining parties in the main Appeals From Orders and Civil Applications filed for the interim injunction.
3. In Civil Application No. 9914 of 2000 and Civil Application No. 10481 of 2000 which are filed in Appeal From Order No. 292 of 2000, it is urged that the opponent No. 1 i.e., original respondent No. 1 in collusion with opponent Nos. 3 to 19 set up a case that opponent Nos. 3 to 19 had entered into an agreement dated 27th May, 1992 with respondent No. 1 and he agreed to sell the suit land to the opponent Nos. 3 to 19 at the rate of Rs. 251/- per sq. yard. On 24th April, 1997, opponent Nos. 3 to 18 of this Application filed a suit being Spl. Civil Suit No. 159' of 1997 in the Court of Civil Judge (S.D.), Surat against opponent No. 1 i.e., original respondent No. 1 and against the father of the opponent No. 1 Ishwarbhai Keshavbhai Patel and one Swetal Ratilal, son of opponent No. 1 for specific performance of the agreement dated 27th May, 1992. In the above said Civil Suit No. 159 of 1997, parties obtained collusive decree on 26th May, 1997. Under the said decree, it was provided that opponent Nos. 1 and 20 i.e. Ishwarbhai Keshavbhai Patel, father of opponent No. 1 and the said Swetal Ratilal had to sell the suit land to the opponent Nos. 3 to 18 at a price of Rs. 301/- per. sq. yd. i.e., for a total consideration Rs. 66,75,277/-. The decree also provided that on the date of the decree, opponent Nos. 3 to 18 herein had already paid Rs. 32,01,000/- in cash and that the possession of the land was given to opponent Nos. 3 to 18 by the plaintiffs of that suit. In the said suit, opponent No. 1 herein falsely alleged that by an agreement Mark 23/13 dated 26th April, 1999 made between the opponent No. 1 and his father and the applicant herein banakhat dated 27th July, 1996 was cancelled. However, as per the averments made, till the date of filing of Spl. Civil Suit No. 183 of 1999 by the present applicants, no registered sale deed was executed in favour of the opponent Nos. 3 to 18 herein. The present applicants filed the above said Spl. Civil Suit No. 183 of 1999 for the specific performance of registered agreement dated 27th July, 1996 as aforesaid and application for the interim injunction at Exh. 5 was also filed which was rejected by the trial Court on 20th February, 2000 and this Appeal From Order No. 292 of 2000 came to be filed by the original plaintiffs i.e. present appellants. During the hearing of Appeal From Order No. 292 of 2000, learned Advocate for the respondent Shri B. M. Mangukia made a statement before the Court that opponent No. 1 herein i.e. Ratilal Ishwarlal Patel, his father and Swetal Ratilal, opponent No. 19 herein, had executed in favour of opponent Nos. 3 to 18 several sale deed in respect of several parcels of the suit land and the deeds are lodged for regisiration before the Sub-Registrar, Conveyances, Surat. Learned Advocate Mr. Mangukia for the respondents further submitted that grant of any injunction restraining opponent No. 1 i.e., original respondent No. 1, his father and Swetal Ratilal from transferring the suit land would become infructuous. Copies of such sale deeds, according to applicants, are not furnished to the Advocate for the applicants. Thereupon, applicant Advocate i.e. original plaintiffs Advocate in the trial Court made an application seeking information of the said sale deeds, but the Advocate for the opponent No. 1 herein pleaded ignorance of the same. The applicants herein has also made an application before the trial Court at Exh. 64 in Spl. Civil Suit No. 183 of 1999 for adding opponent Nos. 3 to 19 herein as defendant Nos. 3 to 19 in the above said suit and the trial Court has placed this application for hearing. Though the applicants attempted to obtain more information regarding the sale, but he could not. However, according to the applicants, the fact remains that the suit lands stood (ransferred to Opponent Nos. 3 to 18 herein by opponent No. 1 herein and his father and Swetal Ratilal. Under these circumstances, the applicants original Appellants plaintiffs of Spt. Civil Suit No. 183 of 1999 preferred this Application No. 9914 of 2000 to permit the applicants to add opponent Nos. 3 to 19 herein as a party respondents in the Appeal From Order No. 292 of 2000. It is submitted that opponent Nos. 3 to 19 herein claim under the opponent Nos. 1, 2 and 3 and, therefore it is competent to the applicants to take proceedings against these opponents and to make this application. It is, therefore, prayed by Civil Application No. 9914 of 2000 to permit the applicants to add the opponent Nos. 3 to 19 as respondent Nos. 3 to 19 10 the Appeal From Order No. 292 of 2000 and vide Civil Application No. 10481 in Civil Application No. 9914 of 2000 on similar facis, it is prayed that opponent No. 20 i.e. Tarjan Co-operative Housing Society Limited and opponent No. 21 Sub-Registrar, Conveyances, Surat, be also permitted to be added as Respondent Nos. 20 and 21 to the Appeal From Order No. 292 of 2000. It is also urged that such parties be added in the Civil Application for interim injunction.
4. While in Civil Application No. 9911 of 2000 it is urged that the applicants have filed Appeal From Order No. 291 of 2000 being aggrieved by the judgment and order dated 21st July, 2000 of the learned Civil Judge (S.D.), Surat, rejecting the applicants Application Exh. 5 for temporary injunction in Spl. Civil Suit No. 184 of 1999. Temporary injunction was sought by the applicants - plaintiffs restraining respondent Nos. 1, 2 and 3 of the Appeal From Order from dealing with or causing to be dealt with any other person, from selling, mortgaging, gifting or transferring of the suit property. However, the opponent Nos. 1, 2 i.e., original respondent Nos. 1, 2 in Appeal From Order No. 291 of 2000 in collusion with opponents Nos. 4 to 20 herein set up a case that opponent Nos. 1 and 2 i.e. original respondents No. 1 and 2 herein entered into an agreement on 27th May, 1992 and agreed to sell the suit land to opponent Nos. 4 to 20 herein at a price of Rs. 251/- per sq. yard. On 24th of April, 1997, opponent Nos. 4 to 20 herein filed Suit being Spl. Civil Suit No. 159 of 1997 in the Court of Civil Judge (S.D.), Surat, against opponent Nos. 1 and 2 herein i.e. respondent No. 1 and 2 in the Appeal From Order and against one Swetal Ratilal, son of opponent No. 2 for the specific performance of the alleged agreement dated 27th May, 1992. It is averred that on 26th May, 1997 a collusive consent decree was obtained in the suit No. 159 of 1997 and under which it was provided that the opponent Nos. 1 and 2 herein original respondent Nos. 1 and 2 and Swetal Ratilal opponent No. 20 herein had to sell the suit land to opponent Nos. 4 to 19 herein at the price of Rs. 301/- per sq. yard i.e. for the total consideration of Rs. 66,75,277/-. It was also provided that the opponents Nos. 4 to 19 herein had already paid Rs. 32,01,000/- in cash and that the possession of the suit land was given to opponent Nos. 4 to 19 herein and the vendors i.e. defendants had to obtain necessary permission for sale under the law. Opponent Nos. 1 and 2 herein i.e. original respondent Nos. 1 and 2 i.e., defendant Nos. 1 and 2 also falsely alleged that by an agreement Mark 23/13 dated 26-4-1999 made between the said opponents and the applicants herein, the Banakhat dated 27th July, 1996, which is the basis of the Spl. Civil Suit No. 184 of 1999 was cancelled. Till the date of filing of the Spl. Civil Suit No. 184 of 1999, no registered sale deeds were executed in favour of opponent Nos. 4 to 19 herein. On 20th May, 1999 the present applicants filed the above Spl. Civil Suit No. 184 of 1999 for specific performance of registered agreement dated 27th July, 1996 wherein temporary injunction was sought for as aforesaid and on rejection of Exh. 5, this Appeal From Order No. 291 of 2000 was filed by the present applicants appellants.
5. During the hearing of this Appeal From Order No. 291 of 2000, learned Advocate Mr. B. M. Mangukia, for the respondents made a statement before the Court that respondent Nos. 1 and 2 i.e. opponent Nos. 1 and 2 herein and said Swetal Ratilal executed in favour of opponent Nos. 4 to 19 herein several sale deeds in respect to several parcels of suit land and the same were lodged before the concerned Registrar for registration. Learned Advocate Mr. Mangukia also submitted, therefore the grant of any injunction restraining respondents opponent Nos. 1, 2 and 3 of this Appeal from transferring the suit land would be infructuous. However, no copies of the sale deeds were furnished to the learned Advocate for the applicants. In trial Court also in Spl. Civil Suit No. 184 of 1999, learned Advocate for the applicants - original plaintiffs filed an application seeking information of the said sale deeds, but the learned Advocate for the opponents No. 1 and 2 herein (original defendants) pleaded ignorance of the same. The applicants herein in the above said Spl. Civil Suit filed an application as Exh. 64 for adding Opponent Nos. 4 to 20 herein as defendant Nos. 4 to 20 and the same is fixed for hearing by the trial Court. Thereafter, applicants attempted to obtain information regarding the above said sale in pursuance of alleged consent decree, but could not obtain further information. However the fact remains that opponent Nos. 1 and 2 and 20 herein have sold the suit land by the purported sale deed to opponent Nos. 4 to 20 herein, and therefore, this application is filed for permitting the present applicants - original appellants to add the opponent Nos. 4 to 20 herein as respondent Nos. 4 to 20 to the Appeal From Order No. 291 of 2000 and as opponent Nos. 4 to 20 in Civil Application No. 7031 of 2000, which is filed for temporary injunction.
6. In this Civil Application No. 9911 of 2000 further application being Civil Application No. 10482 of 2000 has been also filed on the same ground for impleading opponent No. 21 - Tarang Co-operative Housing Society Limited and opponent No. 22 Sub-Registrar of Conveyances, Surat as party respondents in the Appeal and opponents in Civil Application for interim injunciion.
7. So, Civil Application No. 9914 in A.O. No. 292 of 2000 along with C. A. No. 10481 of 2000 in C.A. No. 9914 has been filed for adding parties in Appeal From Order No. 292 of 2000 and Civil Application, as aforesaid. In Appeal From Order No. 291 of 2000 also Civil Application No. 9911 of 2000 and further Civil Applicaiion No. 10482 of 2000 have been filed for adding party respondents in Appeal From Order and opponents in Civil Application for the interim stay.
8. All the four Civil Applications contain almost similar facts and common question of law, were heard together and being decided by this common order.
9. Learned Sr. Counsel Mr. S. B. Vakil on behalf of the applicants in all the applications, while learned Sr. Counsel Mr. S. N. Shelat for original respondents in both the Appeals From Order, learned Sr. Counsel Mr. M. C. Bhatt for opponent Nos. 4 to 19 in C. A. No. 9911 of 2000 and for opponent Nos. 3 to 18 in C. A. No. 9914 of 2000, learned Advocate Mr. F. B. Brambhatt on behalf of opponent No. 20 in C. A. No. 9911 of 2000 and 19 in C. A. No. 9914 of 2000 were heard. Opponent No. 3 in C. A. No. 9911 of 2000 is served. None appears. While in C. A. No. 10482 of 2000 in C. A. No. 9911 of 2000 for opponent Nos. 21 and 20 in C. A. No. 10481 of 2000 in C. A. No. 9914 of 2000 learned Advocate Mr. M. C. Bhatt appears. While on behalf opponent No. 22 in C. A. No. 10482 of 2000 in C. A. No. 9911 of 2000 and opponent No. 21 in C. A. No. 10481 of 2000 in C. A. No. 9914 of 2000 Mr. Pandya, A.G.P.
10. Learned Advocaie Mr. Vakil on behalf of the applicants - original appellants has forcefully urged that devolution of interest is assigned to the proposed parlies during pendency of Appeal, and therefore, they are required to be added as parties in the Appeals, so proper interim measures can be taken against them. Though the alleged consent decree was passed as aforesaid, but the documents were executed only during pendency of the appeals, and therefore, as per Order 22, Rule 10 of the Civil Procedure Code, on assignment or of devolution of interest, they are necessary parties. Heavy reliance is placed by learned Sr. Counsel Mr. S. B. Vakil on a decision of this Court in the matter of Gujarat State Fertilizer Co. Ltd. v. Sikka Digvijaygram Joint Nagar Panchayat, reported in 1989 (2) GLR 725. The attention of this Court is drawn on Section 146 of the Civil Procedure Code, and it is urged that it is the case of devolution of interest assignment to the proposed parties and there cannot be any reason why the Court should not join the parties in the Appeals. Even the trial Court cannot say that the proposed parties are not deemed proper or necessary parties. A relief is claimed against assignor in interest. With reference to the scope of Appeal From Order, learned Advocate Mr. S. B. Vakil argued that the Appeal is rehearing of Exh. 5 and in Exh. 5 (an application for temporary injunction), the proposed parties can be joined and application for interim injunction, according to Mr. Vakil, can be decided on affidavits and those affidavits also can be filed in the Appeal as well. In turn, it is urged that that will be rehearing of an application Exh. 5 for temporary injunction in the Appeal From Order. In these Appeals as well as in the Civil application for injunction, the proposed parties can defend their case by filing affidavits. It is urged that none of the decisions cited by the opposite sides has taken into consideration Section 146 of the Civil Procedure Code. It is, therefore, urged that the application for adding the proposed parties in both the Appeals From Order be allowed.
11. As against mat learned Sr. Counsel Mr. S. N. Shelat, who appears for original respondents/defendants submitted that the present suits are filed on 20-5-1999 and the original defendants - present respondents filed written submission on 27th May, 1999 wherein it was mentioned that in Spl. Civil Suit No. 159 of 1997 there was a consent decree and the same was produced before the Court by the original defendanis. Mr. Shelat urged that the consent decree is dated 25-5-1999 and the present applicants-appellants did not take any action till then to join the proposed parties in the suit instead these applications are filed in these Appeals From Order. It is urged that the applications for adding the parties in Appeals From Order are not maintainable.
12. While, learned Sr. Counsel Mr. M. C. Bhatt has urged that unless and until the proposed parties are made parties in the suit itself, on devolution of interest or assignment, they cannot be made parties in these Appeals for the simple reason that the scope of Appeal From Order under Order 43, Rule 1 of the C.P.C., is limited to the orders of the trial Court mentioned therein. Therefore, what is to be examined in this Appeal is whether an order passed below an Application Exh. 5 is correct or not. The application for the temporary injunction has been dismissed by the trial Court, and hence, the appellants have preferred these Appeals. There is, therefore, no judgment and order of the trial Court as against the present opponents who are proposed parties which is subject-matter of these Appeals. Adding the party without adding them in original suit would cause prejudice to the parties proposed to be added. There may be a situation wherein this Court may allow the application for adding of the parties and the trial Court where the application is filed, may reject it. In that situation, the complication may arise which may ensue multiplicity of proceedings. Unless and until, the trial Court is capable of passing any final relief against the party proposed to be added, no interim relief can be granted against proposed party because as per established law, interim relief for temporary injunction is connected with the final relief. It is urged that the suit is pending before the trial Court and the appellants may first get the parties added in the suit itself whereupon the parties can be added in the Appeal From Orders. It is urged that the decision of this Court in the matter of G.S.F.C. v. S. D. Joint Nagar Panchayat (supra) will have no application to the facts of the present case and that decision was given on the peculiar facts of the case. Against the proposed parties, allegation of fraud and collusion have been levelled and parties must be given full opportunity to meet with these allegations in the trial Court. With reference to the scope of Appeal From Order, learned Advocate Mr. M. C. Bhatt has relied upon a decision in the case of Firm Shiam Lal Joti Prasad v. Dhanpat Rai and Anr., reported in AIR 1926 Allahabad 768 and in the case of Kailash Nath Singh v. The District Judge, Mirzapur, reported in AIR 1993 Allahabad 67 and it is urged that these applications for adding of the parties in Appeal From Order deserve to be rejected.
13. Having regard to the rival contentions, the crucial question which is required to be decided in these Applications is whether parties can be added in Appeal From Order when they are not parties in the original suit. On behalf of the applicants, heavy reliance is placed on the above said decision of this Court in the matter of Gujarat State Fertilizer Co, Ltd. v. Sikka Digvijaygram, Joint Nagar Panchayat (supra).
14. The scope of the Appeal From Order is undoubtedly very limited. The Court has to examine the impugned order passed by the trial Court at interim stage. Here in this case, the plaintiffs - present applicants appellants filed an application under Order 39, Rules 1 & 2 of C.P.C which was dismissed as against the present respondents. As facts stand as stated above, during the pendency of the proceedings, several parcels of suit land came to be sold by the present respondents to the proposed parties and hence while filing an application before the trial Court for adding them as parties, present applications have also been filed in these two Appeals From Order. The basic principle for granting or non-granting the relief under Order 39, Rules 1 and 2 of the Civil Procedure Code is whether the plaintiffs are entitled to ultimate relief claimed against the opponents. There remains prima facie case of the defendants. If there is no relief ultimately claimed, then there will be no relief consequently at the interim stage also. Appeal is provided under Order 43, Rule 1 of the Civil Procedure Code against the order passed by the trial Court under Order 39, Rules 1 and 2 of C.P.C. The scope of this appeal, as said above, is limited only to the order impugned below an application for the temporary injunction, and to that extent only Section 146 of the Civil Procedure Code is applicable, but beyond that the appellate Court in Appeal From Order cannot exercise the powers, which the appellate Court could exercise in pursuance of Section 146 of the Civil Procedure Code in a regular appeal from the decree because that appeal would be continuation of the suit. While in case of Appeal From Order, the appellate Court will have to examine only one miscellaneous order passed by the trial Court and that Appeal From Order could not be said by any stretch of reasoning that the same in continuation of the suit so as to exercise all powers of the trial Court by the appellate Court similar to the powers to be exercised in regular appeal because in Appeal From Order the decision of a suit as a whole is not placed and the suit is undoubtedly pending with the trial Court and only a miscellaneous order is examined by the appellate Court. Therefore, unless and until a party is not a party in a suit, cannot be joined as party in Appeal From Order even the appellate Court cannot exercise the power of the trial Court under Section 146 of the Civil Procedure Code while dealing with the Appeals From Order beyond the scope of order which is under challenge. This is so because there is no order which can be examined by the appellate Court against such proposed party and secondly unless and until final relief is claimed against any party in the suit, no interim relief can be asked for. In fact, there is no order at all of the trial Court as between the original plaintiffs
- appellants and this proposed parties, which can be examined by the appellate Court in these Appeals From Orders. Learned Advocate Mr. S. B. Vakil has urged that the opponents have adopted a delay techniques and insisting to join the parties in the suit. Mr. Vakil urges that if the proposed parties are so joined in the suit, then the opponents will say that since there is no relief or interim injunction asked for against the proposed parties, they cannot be joined in the Appeals From Order. The contention of Mr. Vakil may be true on factual aspects but that cannot overrule the legal principles that unless and until the party is joined as a party in a suit and if any interim order is passed or rejected against such party, no such party can be joined in the Appeal From Order because basically there will be no order at all against such party which can be examined by the appellate Court in Appeal From Order.
15. So far as the decision of the Gujarat State Fertilizer Co. Ltd, (supra) is concerned, that decision is on the peculiar facts of the case. There are more than one reasons on facts to say that the said decision of this Court is not applicable to the facts of the present case. The facts of the said case narrated in para 2 of the above said decision is as under :
"The appellant has filed the aforesaid suit before the Civil Judge (S.D.), Jamnagar, seeking relief of declaration that it is entitled to exemption from payment of octroi duty and also for a permanent injunction restraining the Sikka Digvijaygram Joint Nagar Panchayat, Sikka and its agents or the Ijardars to whom the contract for recovery of octroi is given by the Panchayat from recovering the octroi. The plaintiff-Company has started a project to put up the plant for manufacturing Di-Ammonium Phosphate Fertilizer. The project envisages putting up a plant for manufacture of the said product and a part of this project, namely. Ammonia Storage Tank and storage facilities for phosphates, etc. which are to be imported is to be located near Fisheries Office, within the limits of Sikka Nagar Panchayat. It is further stated that the plant is being put up entirely as a new industry. The plaintiff has obtained lands from the Government of Gujarat for this part of the project within the limits of village Sikka. Foundation stone was laid on July 16, 1985 and the construction on the said lands at Sikka has commenced on or around October 20, 1985. It has been further stated that the plaintiff has awarded a contract for erection of the Tank and other civil structures on the land to one M/s National Builders. Hence, it is contended by the plaintiff that under Rule 36 of the Gujarat Gram and Nagar Panchayats (Taxes and Fees) Rules, 1964 (hereinafter referred to as the "Taxes and Fees Rules"), the plaintiff is entitled to have exemption from octroi duty. In spite of this position, the defendant No. 1 or their agents were threatening to detain the goods of the plaintiff for non-payment of octroi duty. Therefore, the suit was filed for declaration and permanent injunction.
In that suit application Exh. 5 for temporary injunction against the defendants restraining them, their servants, agents, employees, etc. from claiming and/or recovering any octroi for any goods brought for the purpose of new industry of the plaintiff, was filed on 19th November, 1985. The learned Judge has rejected the said application as stated above, by his judgment and order dated 23rd March, 1986."
16. Respondent No. 3 therein was made a party in Appeal From Order even if respondent No. 3 was not party in the suit pending between the panics because mainly respondent No. 3 acted an agent of respondent No. 1-Panchayat. In Para 19 of the above said decision, this Court has categorically observed that "secondly, respondent No. 3 is acting as an agent of the respondent No. 1-Panchayat. Therefore, once the direction is given to respondent No. 1-Panchayat not to collect the octroi from the appellant, then the said direction would be binding to the respondent No. 3." This clearly indicates that if any order could have been passed against the Panchayat, then the same was binding on respondent No. 3 being an agent of the respondent No. 1. Therefore, it is crystal clear that there was an order between the appellant - original plaintiff and respondent No. 3 (through respondent No. 2) to be examined by the appellate Court in Appeal From Order, and hence, under the provisions of Section 146 of the Civil Procedure Code, the Court observed that respondent No. 3 could be joined as party respondent even if he was not a party in suit. Not only that, but relief was claimed in the suit against the agent of defendant No. 1-Panchayat and respondent No. 3 was agent of Panchayat and was bound by the relief if the same would have granted by the Court. As stated above, therefore, main reason for joining the respondent No. 3 as a party in Appeal From Order was that because respondent No. 3 was agent of respondent No. I and was bound by the above order of the Court. But, this is not only the reasons for joining respondent No. 3 as a party which the Court has given in the above said decision. That was not the case wherein party was sought to be added during pendency of the appeal, but the respondent No. 3 in the above case was made party while appeal was filed in the High Court. The party i.e., respondent No. 3 did not take objection for adding him as a party at that stage. Not only that but in Civil Application for the stay, as per Para 5 of the above decision, the order was passed that "the interim relief was refused on condition that the respondent Nos. 1 and 3 to file undertaking in this High Court within 2 weeks from today to the effect that in the event of the appellant succeeding in this Appeal or in the suit the amount of octroi recovered from the appellant shall be refunded within such time as may be granted by this Court". Even after passing of this order by the High Court for stay, respondent No. 3 did not raise any objections, but filed an undertaking in terms of order. Only that when appeal came up for hearing at the final stage, respondent No. 3 raised objection that since he is not party to the suit he cannot be joined as party in the Appeal From Order. Court in the above said peculiar facts and circumstances of the case negatived the contention of respondent No. 3. It was also stated by the Court that the plea such of respondent No. 3 not only was dishonest but the same was taken at very belated stage. Therefore, the Court observed that Court cannot allow to take such dishonest plea at this late stage of respondent No. 3 after recovery of large amount of Rs. 12 lacs and obtaining benefit of interim order in the Appeal. The Court further observed, also that "if it had objected at the time of admission that it cannot be joined as party-respondent, then Court would have passed appropriate order".
17. Therefore, for the above reasons, since the decision of this Court cited by Mr. Vakil deals with the peculiar situation arose in the facts and circumstances of the case, the same cannot be made applicable to the facts of the present case. The ratio of the above decision of this Court is not when the party is not a party to the suit must be impleaded as party in Appeal From Order, but the ratio of the decision is when the party is a party in the Appeal right from the beginning till final disposal of the appeal, never objects it being made party at any stage even at the admission stage, and on solemn affirmation gave undertaking to this Court and obtains benefit of the interim order passed by the Court in Appeal, cannot take this dishonest plea that the Appeal is not maintainable as against it, because on the ground that it was not a party to the suit particularly in the circumstances, when the party respondent No. 3 was an agent of respondent No. 1 and was within the scope of the order passed against the respondent No. 1. This Court in the above decision discussed Section 146 of the Civil Procedure Code and the power of the Appellate Court in the above mentioned backdrop of facts.
18. The established law is otherwise. In case of Firm Shiam Lat Joti Prasad v. Dhanpat Rai and Anr.. reported in AIR 1926 Allahabad 768, the High Court of Allahabad pleased to observe as under :
"We are of opinion that the trouble has arisen owing to the irregular way in which Chhitar Mal was impleaded. Under Order 41, Rule 20, Civil Procedure Code, the appellate Court has power to the suit, but who has not been made a party to the appeal; but under that rule a Court has no power to implead a person who was no party to implead a person who was no party to the original suit at all, vide Pachkauri Raut v. Ram Khilawan, reported in AIR 1915 (37) All. 57. The learned Judge seems to have invoked the aid of the general Section 107 (Civil Procedure Code), but that gives an appellate Court powers, generally speaking, as a trial Court. In our opinion, if the learned District Judge was of opinion that Chhitar Mal, was a necessary party and ought to have been impleaded, the proper procedure for him was to remand the case to the Court of first instance with a direction that Court should iinplead Chhitar Mal and then proceed to dispose of the case. It is obvious that by impleading Chhitar Mal in the appeal the inevitable result was that the case had to be tried de novo as Chhitar Mal had never had an opportunity to contest the claim."
19. The High Court of Orissa, in the matter of Radhakrushna Choudhury v. Radhakrushna Mohaprabhu, reported in AIR 1971 Orissa 274, in para 6 observed as under :
"6. The short question raised by Mr. Roy in this Court is as to whether the appointment made by Jamuna under Ext. 2 is valid and even if such an appointment was initially valid, would it enure beyond the lifetime of Jamuna who admittedly died sometime in March or April, 1965 during the pendency of the suit. In this Court, there is an application by Nadiachand, the third son of Ganapati @ Gourchandra, to be impleaded as a party, and by order No. 10 dated 4-11-1968 that application has been directed to be taken up at the final hearing of the appeal. To implead Nadiachand as a party at this stage would not only prejudice him, but would also prejudice the parties. The right of management of the plaintiff was interfered with by Radhakrushna, the defendant alone, and therefore, the plaintiff had sued for permanent injunction as against Radhakrushna only. Such a suit was maintainable without Nadiachand being a party. Therefore, for the purpose of this suit Nadiachand need not necessarily be impleaded. It is a settled rule of law that a person who is not a party in the original forum would not be a party to the appeal and to add such a person who was not known to the record earlier as a party to the appeal for the first time would certainly prejudice either the newly added party or the person already on record and might necessarily involve the need of reopening the matter. In the facts of the present case, Nadiachand is not bound by the decree passed in this action and if he is really aggrieved, it is open to him to bring comprehensive suit for title. At any rate, 1 would, therefore, reject this petition and not permit him to come on the record of the appeal."
20. The scope of Appeal From Order is well explained by the High Court of Allahabad in the matter of Kailash Nath Singli v. The District Judge, Mirzapur, reported in AIR 1993 All. 67. In Paras 8 & 9, it is observed as under :
"According the scope of such appeals is limited. The challenge is only regarding the grant of an interim injunction as such, the District Judge was exercising the power or jurisdiction over the suit. He was caused to have any jurisdiction for granting a temporary injunction in a suit and the power of amendment will only be with the Court where the suit is pending. When a regular appeal is filed after decision by the trial Court the appellate Court exercises all the powers and the trial Court ceases to have any concern with such a suit which has already been decided. Accordingly, the District Judge, while hearing as miscellaneous Court may not entertain the application for the amendment of the plaint submitted before him by the plaintiff petitioner and if such an application is made in appeal, the only course which is to be adopted by the District Judge is to direct the plaintiff to file the said amendment application before the trial Court for deciding it in accordance with law after disposing of the miscellaneous appeal on merits. The view of the District Judge that he has no jurisdiction to decide the application for amendment of the plaint appears to be correct. Reliance was placed by the petitioner on the provisions of Section 108 read with Section 107 Sub-clause (2), Order 43, Rule 2 read with Rule 1 and Order 6, Rule 17, C.P.C., and he contended that the order allowing an amendment of a plaint was exercisable and the District Judge has failed to exercise jurisdiction vested, in him in refusing to consider the amendment in the plaint. It was further urged that the appeal was in continuance of the suit and the District Judge hearing a miscellaneous appeal has a right to permit amendment in the plaint while hearing a miscellaneous appeal. It was also contended that unless there is a specific bar restricting a Court not to permit amendment, the jurisdiction of allowing or rejecting an amendment will be presumed. In support of this contention, he placed on a Full Bench decision reported in ILR-V, ALD as well as some other cases.
9. The powers of appellate Courts are the same as are conferred by this Code to the trial Court. By virtue of Order 43, Rule 2, C.P.C., the provisions of Order 41, C.P.C., shall apply to the appeals from orders. In spite of this the scope of the appeal under Order 43, Rule l(r) is restricted as has already been stated above. The distinction must be kept in mind regarding the scope of a regular appeal and miscellaneous one. In the case of a regular appeal, the same is continuation of a suit. Power to allow or reject the amendment in the pleadings is always there; but in an appeal of miscellaneous nature, it will be the jurisdiction of appellate Court to decide the correctness or otherwise in the matter of interim injunction. As such, the powers of miscellaneous appellate Court appears to be quite different than an appellate Court as the miscellaneous Court has no concern with the suit, but it is only an appellate authority to decide the correctness of the grant or refusal of injunction application. Accordingly, I hold that the view taken by the District Judge in the present case refusing to permit an amendment in the plaint is absolutely correct. The contention of the learned Counsel for the petitioner that unless there is a specific bar restricting a Court not to permit an amendment, there will always be a presumption of jurisdiction is not tenable in law. A perusal of Sections 107 and 108, C.P.C., read with Order 43, Rule 1, C.P.C., reveals that there is implied bar on such an exercise of jurisdiction."
Therefore, the scope of the appellate Court in the Appeal From Order is limited only to the extent of the order impugned and not beyond that. Even Section 146 of the C.P.C., would be applicable only to that extent so far as the same is applicable to the order impugned.
21. Therefore, in view of the above said discussion, the law which is established is that the scope of the appellate Court in Appeal From Order is upto the order impugned and in any case these powers under Section 146 of the Civil Procedure Code would not be so pervasive as to exercise the jurisdiction over the whole suit which remains pending with the trial Court. This is the difference between the regular appeal against the decree and the Appeal From Order and unless there is an appealable order against any party, the same cannot be forced to face the Appeal even if the Appeal From Order may be continuation or re-hearing of application for temporary injunction. This is so because unless and until the ultimate relief is claimed against a party in the suit, no interim relief can be asked for or granted by the Court.
22. For the above reasons, all the 4 Civil Applications for adding of parties are hereby stand rejected. However, trial Court is directed to expedite the hearing of applications to implead parties filed in both the suits and dispose of the same as expeditiously as possible but not later than within one month in any case from the date of the receipt of writ of this order. No order as to costs. Office is directed to transmit the writ to the trial Court immediately.
23. Applications dismissed.