Patna High Court
Padarath Mahton vs Hitan Singh And Ors. on 3 July, 1924
Equivalent citations: 82IND. CAS.600, AIR 1924 PATNA 773
JUDGMENT Dawson Miller, C.J.
1. These are appeals on behalf of the plaintiff from a decision of the Subordinate Judge of Gaya. The plaintiff and the defendant second party were the 16-annas proprietors in Mauza Bharkur Sohagia in the Gaya District at the time when this suit was instituted, the plaintiff being interested in, an 8-annas share and the defendant second party in the remaining 8-annas share, The plaintiff instituted a suit for rent against a large number of tenants claiming the total rent for the year 1323 F or in the alternative his proportionate rent if it should turn out that his co-sharer landlord, the defendant second party, had been paid the proportionate rent due to him. There was a further claim against the co-sharer landlord in the event of the whole rent having been paid to him by the tenants.
2. The landlord defendant by his written statement set up the case that the whole of the rents had been paid by division of the produce to him and to the plaintiff and that was also the case of some of the tenants who were the principal defendants in this suit. Others of the tenants contended that they had paid the whole of the rent to the defendants second party.
3. When the case came before the Munsif he dismissed the suit as against the tenants but gave judgment as against the co-sharer defendant accepting some of the evidence given by two of the tenants and considering that there was an admission by the co-sharer defendant to the effect that he had received the whole of the rents payable for that year. It would appear that the learned Munsif had not properly appreciated what the case was set out in the written statement of the co-proprietor defendant. There was in fact no admission that he himself had received the whole of the rents of the year in question. His allegation was that all the tenants had divided and paid the landlords' share of the grain for 1323 F. to that defendant and the plaintiff on a division.
4. From that decision the co-sharer landlord, appealed to the Subordinate Judge making the plaintiff-respondent but not adding the tenant defendants as respondents in the appeal. The learned Subordinate Judge after considering the evidence at some length arrived at the conclusion that the evidence as to payment to the co-sharer landlord was very meagre and altogether unsatisfactory and he disbelieved it and in the result he allowed the appeal. It seems fairly clear from the course, which the case took that the plaintiff was entitled to the rent either from the tenants or from the co-sharer landlord, the defendant second party, because both the Trial Court and the Subordinate Judge on appeal had decided that he at all events had not received the rent and the only question for decision was whether he was entitled to receive it from the tenants or entitled to receive it from his co-sharer landlord on the ground that the tenants had paid him and not the plaintiff. In these circumstances it seems to me that in order to do justice between the parties when the matter came on appeal to the Subordinate Judge it was necessary to have before the Court not only the plaintiff and the co-sharer landlord but also the tenant defendants, because if the Court of Appeal should find that the plaintiff's proportion of rent had not been paid to his co-sharer and had not in fact been paid to him then it was clear that he would be entitled to a decree against the tenants, but the result of not having the tenants upon the record was that although the Judge was apparently under the impression that the tenants had not paid this rent at all he was bound in the circumstances to dismiss the suit altogether because the tenants were not before him as parties to the appeal and he could not pass a decree against any party who was not before him. If the tenants had been before him in that appeal even though there was no appeal by the plaintiff against that part of the decree which dismissed the suit as against them the Court could, under the provisions of Order XLI, Rule 33 of the Civil Procedure Code, if it should come to the conclusion that the tenants had not paid the plaintiff's proportion of the rent, nevertheless have passed a decree against them in order that justice might be done between the parties. The question then arose as to whether the. Subordinate Judge could bring them upon the record as parties to the appeal and the conclusion at which he arrived was that they could not be made parties at that time as the question of limitation would arise. In that respect I think he was entirely wrong. It would appear that had the learned Judge been of opinion that the tenant defendants could be brought upon the record without contravening the law relating to limitation he would have made them parties. The question whether the rules of limitation apply to the powers of the Court to bring parties on the record in the appeal under the provisions of Order XLI, Rule 20 has been one of some controversy but the better opinion appears to be that there is no period of limitation provided for bringing parties to the suit upon the record in an appeal from a decision in that suit and one of the latest cases on the subject is that of Girish Chunder Lahiri v. Sasi Sekhareshwar Roy 33 C. 329. It seems to be clear that in a case of this description the ordinary rules of limitation relating to appeals ought not to apply where in the course of an appeal the Court finds that in order to do justice between the parties it is necessary to bring one of them who was a party to the suit upon the record in the appeal and I entirely agree with the decision come to in the case just cited. The question which we have to determine is whether in second appeal to this Court we have power to add a party who was not a party to the appeal in the lower Court. This question again has been considered and in the most recent cases the High Court, at Calcutta and the Lower Burma Chief Court have both held that the Court in second appeal has power under Order XLI, Rule 20 to bring parties upon the record in order to carry out the powers granted to the Court under Rule 33 of that Order. The decision of the Lower Burma Chief Court was that in Yoosof Osman Bros. & Co. v. Win Ne Ya 59 Ind. CAS. 798 : 10 L.B.R. 191. The head-note is "An Appellate Court has power in second appeal to add as respondents to the appeal persons who were parties to the suit in the original Court but were not impleaded as respondents in the lower Appellate Court although the lime within which an appeal might have been preferred as against them has expired." That case was decided in the year 1920., The decision of the Calcutta High Court is that of Durga Charan Bose v. Lakhi Narain Bera 47 Ind. Cas. 917. In that case it was held that although no provisions of the Civil Procedure Code dealt with such a case yet the Appellate Court should restore the appeal and re-hear it in the presence of the co-defendant after adding him as a party. The learned Judges who decided that case were of opinion that two courses were open. They might either remand the case for re-hearing in the presence of the party whom they added, or they might themselves pass a final decree such as in their opinion ought to have been passed by the Courts below. As they entertained no manner of doubt as to what the decree should be they adopted the latter course. In the present case it seems to me that it would be a miscarriage of justice if the case should be left where it now stands. The plaintiff was not appellant in this case. He was merely respondent and he had a decree in his favour. He could not foretell the result of the appeal to the Subordinate Judge but it was open to the Court if it were going to decide the appeal in favour of the appellant in circumstances which would indicate that it was not the appellant but the other defendants who were liable for the sum claimed, to add them as parties and pass judgment. This course was not adopted and I think it was only because the learned Subordinate Judge considered that he had no power by reason of the Limitation Act-to add these parties that he refrained from doing so. In this Court although the tenant defendants have been made respondents we are not in possession of all the facts to enable us to decide as between the parties who are now before us. I think the proper course is to set aside the decision of the Subordinate Judge and to remand the whole case to him for re-hearing of the appeal in the presence of all the parties. I hardly think that the appellants can be altogether exonerated from blame for the situation that has arisen and although it would be unjust to deprive them if their right to a decree against the unsuccessful defendants I think so far as the costs of this appeal are concerned that justice will be done if we order each party to bear their own costs.
5. This judgment will govern Appeals Nos. 73 to 94 of 1922.
Foster, J.
6. I agree.