P L D 1961 Dacca 332 (PLP)

AMIN AHMED, C. J.‑This Rule was obtained by the defen dants against an order of the District Judge of Rajshahi in Miscellaneous Appeal No. 48 of 1956 dismissing an appeal and ''confirming an order of the Subordinate Judge of Rajshahi dismiss ing Miscellaneous Case No. 11 of 1956, the said miscellaneous case having arisen out of an application under Order IX, rule 13 of the Code of Civil Procedure filed by the present defendants petitioners.

2. The suit out of which these proceedings arise is one for declaration of title and recovery of possession. It was decreed ex parte on the 2nd of February 1956, by the Subordinate Judge, and the application for setting aside the ex parte decree as stated above was dismissed by the Subordinate Judge. On appeal the District Judge dismissed the appeal on the ground that the appeal was barred by limitation. On merits, he, however; found in favour of the petitioners, and held that the tadbirkar of the petitioners was really ill which prevented him from appearing in Court on the date fixed for the hearing of the suit. Against that decision this Court was moved in revision, viz., in Civil Revision Case No. 950 of 1957, and a Rule was issued on the 12th of November 1957, and the said Rule was made absolute on the 26th of March 1958. It may be stated here that the District Judge; though he registered the appeal on the 29th of November 1956, and recorded that the appeal was within time, at the time of the hearing of the appeal came to a finding that the appeal was out of time by one day, and so in disposing of the aforesaid revision case this Court observed as follows :‑ "It seems to us that if at the time of registering the appeal on the 29th of November 1956, the learned District Judge refused to register it on the ground that it was out of time, the peti tioners would have got an opportunity of explaining the circumstances which prevented them from filing the appeal one day before as now seems to have stated in paragraphs 9 and 10 of his petition before us. This aspect of the case, it seems, has not been considered by the lower Appellate Court." So the case was remanded to the lower Appellate Court for setting aside the above order holding that the appeal was barred by the law of limitation, and for giving the petitioners an opportunity to make an application for condonation of delay in filing the appeal.

3. It appears, however, from the record that ‑although the appeal was filed on the 29th of November 1956, on the 18th of February 1957, the petitioners filed an application for substitution of the heirs of respondent Jugesh Chandra Sanyal stating that the said Jugesh Chandra had died on the 11th of December 1956, and that application was allowed, and heirs of Jugesh Chandra were brought on record on the 19th of February 1957. The substituted heirs also appeared on the 26th of March 1957. But on the 25th of July 1957, the said substituted heirs filed a certified copy of the Death Register showing that the respondent Jugesh Chandra Sanyal had died on the 17th of November 1956. It seems that the judg ment against which the revision case was filed and Rule was obtained on the 12th of November 1957, refers to these events, and among other things it was stated in the judgment of the District Judge dated the 30th of July 1957, as follows :‑ "It is, therefore, impossible to say whether Jugesh Chandra died before or after the appeal was preferred. If he died before the appeal was preferred, then certainly no question of substi tution can arise. Be that as it may, since I have found the appeal as barred by limitation, no useful purpose will be served in probing into the question whether Jugesh Chandra died before or after the appeal was preferred."

4. After the appeal was remanded to the Court of appeal below by an order of this Court dated the 26th of March 1958, the peti tioners filed another application for substituting the heirs of the plaintiff‑respondent stating that the plaintiff had died on the 17th of November 1956, and that application was rejected by the District Judge on the 5th of November 1958, stating inter alia as follows:‑ "Now that it has been admitted that Jugesh Chandra Sanyal did before the appeal was filed, the question of substituting his heirs cannot arise at all. If the appellants did not know the fact of death till before the respondent filed objection, the appellants may either take back the memorandum of appeal and present it again after adding new parties who are the heirs of Jugesh Sanyal, or they may apply for adding new parties now by amending the memorandum of appeal by condoning the delay. In the circumstances, the petition is rejected, and the names of the substituted appellants be struck off."'

5. Thereafter, on the 10th of November 1958, the petitioners filed another petition for adding the heirs of the deceased respon dent, and also one for condoning the delay in filing the said petition, and the orders passed thereon were as follows:‑ "Prayer allowed. Let the parties be added subject to limitation. Amend the memorandum of appeal accordingly."

6. On the.2nd of January 1959, the respondent filed a peti tion stating that the appeal was time‑barred, and should be dismissed on that ground. The learned District Judge heard the appeal both on the point of limitation and on merits, and he decided two points, (1) whether the findings of the learned Subor dinate Judge were warranted by the evidence on record, and (2) whether the delay in adding the heirs of the deceased respon dent should be condoned. As to the first point he negatived the finding of the Subordinate Judge, and decided in favour of the present petitioners. But on the second point he held against the petitioners, and after going through the history of the proceedings as regards the substitution and addition of the heirs of the deceased respondent Jugesh Sanyal he came to the finding that plaintiff -respondent No. 1, i.e., Jugesh Chandra Sanyal, had died before the appeal was filed, and he refused to condone the delay, and held that the appeal was out of time against the said heirs, i.e., the added respondents, and as the added respondent were the only heirs of the sole deceased plaintiff, he dismissed the appeal, and confirmed the order of the Subordinate Judge. Hence the present application in revision.

7. Mr. Khan, who appears for the petitioners, contends that inasmuch as by his order dated the 10th of November 1958, the learned District Judge allowed the applications for addition of parties, and also for condonation of delay in filing the said petition The application having been made as directed by the Court on the 5th of November 1958, it was not open to the learned Judge to go into the merits of these applications once again at the time of hearing of the appeal, and to hold that the said applications for addition of parties and for condonation of delay were not bona fide applications, and to dismiss the entire appeal on the ground of limitation.

8. Mr. Chowdhury, who appears for the opposite‑parties, argues that the order dated the 10th of November 1958, passed by the District Judge was without jurisdiction inasmuch as after the appeal had abated against the plaintiff respondent's heirs neither the petitioners nor the Court could rely on the provisions of Order XLI, rule 20 of the Code of Civil Procedure. The learned Advocate has taken us through the relevant portion of the judg ment of the learned District Judge relating to this point of limita tion arising out of the application for addition of parties, and claims that as by the order dated the 10th of November 1958, the application for addition of parties and condonation of delay were allowed subject to limitation, the learned Judge was right in going into the question whether the petitioners made the applica tions for condonation of delay and addition parties mala fide.

9. Mr. Khan, on the other hand, contends that as the order dated the 10th November 1958, was not challenged in any superior Court, and the order was made subject to limitation, it must be taken that the learned Judge accepted the version of the petitioners as regards the facts and circumstances mentioned in the said petition, and also that the two applications were bona fide, and only the question as to the prescribed period of limitation was left open to be argued at the time of hearing of the appeal. In any event, it is urged, it was not open to the learned District Judge to go back on his own order dated the 10th of November 1958, and say that the appeal was barred as the application for addition of parties was time‑barred.

10. Mr. Chowdhury, however, maintains that Order XLI, rule 20 of the Code of Civil Procedure is not meant for addition of a party against whom the appeal has already abated, nor can the aid of section 151 of the said Code be invoked in case Order XLI, rule 20 has no application. The learned advocate points out the order of the 10th of November 1958,. being an order without Juris diction, it was open to the oppd ite‑parties to take the point of limitation, and question the bona fecte of ene petitioners at the time of hearing the appeal In support of his contention, the learned Advocate has relied on the case of Labhu Ram and others v. Ram Pratap and others (A I R 1944 Lah. 76), and Chockalingam Chetty v. Seethai Ache and others (AIR 1927 P C 252), to which reference has been made in Labhu Ram's case: The learned Advocate has also referred to the case of Kai' Dayal Bhattacharjee and others v. Nagendra Nath Pakrashi and others (24 C W N 44), and Order XLI, rule

20. The said rule 20 runs as follows:‑ "Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal is interested to the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court, and direct that such person be made a respondent." The learned Advocate for the opposite‑parties has argued that the party against whom the appeal has abated cannot be taken as a party who is interested in the result of the appeal as stated in rule 20 quoted above.

11. It is true that in Labhu Ram's case, it has been laid down that Order XLI, rule 20 of the Code of Civil Procedure expressly provides for addition of parties by the Court in certain cases, and it is left to the discretion of the Court, and the Court cannot m the exercise of its discretion invoke the aid of section 151 of the. Code or Any other provisions under the Code, but with great respect we cannot agree with the view taken so far as the observations relating to section 151 of the Code in that case is concerned, for, Order XL1, rule 20 of the Code provides only for addition of party where that) party was a party to the suit in the Court from whose decree the appeal has been preferred, and who has not been made a party to the appeal, and in a proper case power is given to the Court to exercise the discretion in favour of the appellant to add such a party. But where a person who was a party to the suit and has 't been made a party to the appeal, but at the time of hearing the appeal it is discovered that such a person died before the appeal was preferred, as in the present case, it cannot be said that the Court is precluded from adding the heirs of the deceased as parties if the Court is satisfied that the ends of justice require it. We have gone through Labhu Ram's case and Chockalingam Chetty's case, and we do not find anywhere in the judgment of their Lordships of the Privy Council that a Court cannot invoke the aid of section 151 of the Code in a case like the present one. Where Order XLI, rule 20 does not apply in toto, that is all the reason why section 151 of the Code will apply in such cases. We may also point out that the case of Kali Dayal also relied upon by Mr. Chowdhury is distinguishable from the present case, for, in that case the appellants made an application to add the heirs and legal representatives of certain plaintiff respondent as parties to the appeal as the said respondent had died during the pendency of the appeal, anal the appellants wanted to proceed under Order XLI, rules 20 and 33 of the Code, and, therefore, the Court refused to exercise its discretion and allow the application holding that the appellants obtained an ex parte order against some of the respon dents on a misrepresentation of fact, that order was cancelled, and that, therefore, the powers given under the above provisions of Order XLI should not be exercised for the benefit of the appellants to the detriment of the heirs and legal representatives of the deceased respondent, the omission to proceed against some of the respondents being due solely to negligence. But, here admittedly the plaintiff‑respondent died before the institution, of the appeal and that was also known to the present opposite-parties as it will appear from the proceedings which we have set out above, and the objection as to either abatement or the appeal being 'barred by limitation was not taken during the entire period between the 12th of November 1957, and the 26th of March 1958, during which the revision case, i.e., Civil Revision Case No. 950 of 1957, was pend ing, the latter having been disposed of on the 26th of March 1958, though the petition for substitution was made on the 18th of February 1957, and other steps in that connection were taken on different dates mentioned above. Mr. Chowdhury at one stage claimed that it was not necessary for the opposite‑parties to do so as the Judge threw out the appeal against which the first revision case was filed on the ground that the appeal could not be registered, and, therefore, the opposite‑parties in the present Rule, though they appeared in the former Rule of 1957, did not take any objection on the ground of the plaintiff=respondent's heirs not being substituted within time. But it seems Mr. Chowdhury has overlooked the judgment then under revision against which a Rule was issued on the 12th of November 1957. That judgment will show as already indicated that the appeal was heard on merits, and on merits the learned Judge found in favour of the present petitioners, but dismissed it on the ground of limitation as it was filed out of time by one day after contest against the. petitioners.

12. We find from the case of The United Provinces v. Mst. Atiqa Begum and others (45 C W N 27 (F C)), that Sulaiman, J., after referring to a number of cases of the Allahabad High Court has taken the same view as we have as regards the application under section 151 in a case of the present nature, and has observed as follows :‑ "It is contended before us that the powers of an Appellate Court are restricted within the limits imposed by Order XLI, rule 20, and that the same restriction is imposed on a Court hearing the second appeal under Order XLI, C. P. C. That rule no doubt permits of making a person respondent, who was a party to the suit in the original Court, and who has not been made a party to the appeal, but is interested in the result of the appeal. Obviously, this rule would not apply to the present case. But the language of the rule does not show that it is exclusive or exhaustive so to deprive a Court of any inherent power which it may possess, and can exercise in special circumstances, and which has been saved by section 151, C. P. C."

13. For the reasons stated above, we cannot accept the argument of the learned Advocate for the opposite‑parties, and hold that the learned District Judge acted illegally and in the material irregularity in holding that appeal was time‑barred. So as the petitioners succeed on this point, and the District Judge has decided on merits that the petitioners tadbirkar was prevented by sufficient cause of illness from being present in Court on the date when the suit was decreed ex parte, the case must be allowed.

14. In the result, the Rule is made absolute without any order as to cost ; the judgment and order of the Court of appeal below are modified to this extent that the appeal before it is held to be not time‑barred, and rest of the finding of the learned District Judge as to merits is upheld ; and, therefore, the miscel laneous case will be allowed, and the application under Order IX, rule 13 of the Code of Civil Procedure will be granted with such costs to the opposite‑parties as they would have been entitled to if their said application has been allowed by the trial Court. ASIR, J.‑I agree with my lord the Chief Justice. K. B. A. Rule made absolute.