Punjab-Haryana High Court
Punjab State Ware Housing Corporation ... vs Janak Raj And Ors. on 7 June, 1994
Equivalent citations: (1994)108PLR160
JUDGMENT S.K. Jain, J.
1. Janak Raj-respondent herein was working as Ware Housing Manager in the Punjab State Ware Housing Corporation, Punjab, Chandigarh in 1973 and was posted at Amritsar. In 1977, he was potted at Jaintipur (Amritsar). A theft of 5675 empty gunny bags was committed in godown No. 2 of that office. A First Information Report was lodged by the plaintiff at the instance of the District Manager. An enquiry was. held against the plaintiff. He was held guilty and dismissed from service vide order dated 19.5.1981. His appeal before the Chairman of the Corporation was dismissed but in civil writ petition, the order of the appellate authority was quashed on 5.3.1982 by this Court. When the Corporation did not give effect to the said judgment of this Court, the plaintiff served a notice under Section 80 of the CM Procedure Code upon the Corporation and thus, filed civil suit No. 181 of 1983 on 12.8.1983/5.9.1985 for a decree of declaration that the order dated 19.5.1981 of the Managing Director of Punjab State Ware housing Corporation, Chandigarh, dismissing him form the service was unconstitutional, illegal and void and that he continues to be in service and entitle to all benefits. This suit was fifed by the plaintiff against the State of Punjab through the Secretary, Ministry of Agriculture, the Chairman, Punjab State Ware Housing Corporation, Punjab Chandigarh, and the Managing Director, Punjab State Ware Housing Corporation, Chandigarh. Issues were struck and the parties led evidence. After hearing the learned counsel for the parties, the learned Sub Judge I Class, Amritsar, vide his judgment and decree dated 7.6.1988 decreed the suit of the plaintiff. Feeling aggrieved, one of the respondent, namely, the Punjab State Ware Housing Corporation preferred civil appeal No. 115 of 1988 on 27.7.1988 without impleading the State of Punjab and the Managing Director of the Corporation either appellants or respondents. The said appeal was heard and dismissed by the Additional District Judge, Amritsar vide his judgment and decree dated 17.1.1992. It is that judgment and decree of the lower appellate Court which has been challenged by the defendant-appellant in the this regular second appeal and which requires my examination of its sustainability.
2. I have seen the pleadings of the parties in the suit, the evidence led by the parties and the judgments of both the courts below.
3. The operative part of the impugned judgment of the lower appellate court reads as under :-
"At the very outset the learned counsel for the plaintiff/respondent raised preliminary objection that in this case the decree was passed against three defendants whereas the present appeal has been filed only by defendant No. 3. The defendants No. 1 and 2 have neither filed any appeal nor have been added as respondents in this appeal. So, the decree against the remaining defendants has become final and for want of impleading them as parties in this appeal, the appeal is not competent because if appeal is allowed of the present appellant, there would be two inconsistent decree. The contention of the learned counsel for the respondents finds support from the authority of the Hon'ble Delhi High Court cited as AIR 1978 N.O.C. 213 in Invest Import v.
Watkin Mayur & Co. Certainly in the instant case defendants No. 1 and 2 have not been impleaded either as appellants or as respondents so, qua them the decree of the learned tower court has become final. The present appeal is incompetent as two inconsistent decrees can not be passed. Relying upon the said authority I hold that the appeal is incompetent as inconsistent decrees can not be passed. Hence, on this preliminary objection the appeal fails and the same is dismissed with costs.
4. I have heard the learned counsel for the parties and gone through the above cited judgment.
5. As a matter of fact, it is not a detailed judgment and it is only a head note which is reproduced below:-
"Civil P.C. (5 of 1908), 041, R.20-Decree against two joint tort feasors-Appeal by one alone without impleading other-Decree against other having become final appeal is incompetent because if appeals were allowed there would be two inconsistent decrees. Case law discussed."
6. From the above head note, the facts of that case can not be deciphered. Only one thing is clear that in that case, there was a decree against two joint tort feasors whereas herein the respondent was an employee of the Punjab State Ware Housing Corporation, Chandigarh. The decree passed by the Civil Court could only be executed against the Punjab State Ware Housing Corporation and State of Punjab and the Chairman of the Corporation, had only been arrayed as proforma respondents and no relief was claimed against the said proforma-respondent. The effect of the decree was that after having declared the two orders null and void, the plaintiff-respondent had been treated to be in service and entitled to all resultant benefits. These reliefs could not be enforced either against the State of Punjab or against the Chairman of the Corporation (defendants No. 1 and 2). These reliefs are to be enforced against respondent No. 3. Rule 1 of Order 41, Civil Procedure Code, provides that whether there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. Therefore, it can not be said that the appeal filed by one of the defendants was incompetent and thus, can not be sustained. Otherwise also, if the lower Appellate Court was of the opinion that the defendants No. 1 and 2, who had not been arrayed as a party to the appeal, was interested in the result of the appeal, the Court could have adjourned the appeal to a future date to be fixed by it and directed that such person be made a respondent as provided under Order 41 Rule 4 of the Code of Civil Procedure. But it seems that these provisions have missed notice of the learned first appellate court. In Paras Ram and Ors. v. Kumari Nirmal and Ors.,1 (1981)83 P.L.R. 298 it was held that' the power of Court of appeal to give relief under Order 41 Rule 4, Civil Procedure Code, was there even when a party jointly interested had not been impleaded in the appeal and that being so, the judgment and decree of the lower appellate Court dismissing the appeal of the defendant-vendees on the ground that it was incompetent was set aside and the case was remanded to the said Court for deciding it on merits.
7. In view of the above discussion, the judgment and decree dated 17.1.1992 passed by Shri J.C. Aggarwal, Additional District Judge, Amritsar, which is appealed against in this, regular second appeal, is set aside. The case is remanded back to the lower appellate Court for a fresh decision on merits after hearing the parties. The parties through their counsel are directed to appear before the lower appellate Court (successor of Shri J.C. Aggarwal, Additional District Judge, Amritsar) on 25.7.1994 and the lower appellate Court is directed to hear the appeal and pronounce the judgment on or before 30.8.1994. Parties, are, however, left to bear their own costs. The lower court records be transmitted backwards forthwith.