(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. This application is made to recall the order dated 05.03.2001, whereby this Court had granted leave to delete opponents No.8 to 12 in the main L.P.A. and, in effect, to restore the names of opponents No.8 to 12 herein as respondents before final hearing of the L.P.A. takes place. The facts relevant for the present purpose are that opponents No.8 to 12 were all along parties to the original suit as well as the First Appeal and they were duly joined as respondents in the L.P.A. as well. Thereafter, according to the applicants, the parties proposed to negotiate for a settlement and the dispute was sought to be referred to Lok Adalat in the year 2001. Since no one was appearing for respondents No.8 to 12, the appeal could not be notified in the Lok Adalat held on 26.01.2001 and on subsequent date of 05.03.2001. The parties appearing before the Court had, at that time, agreed to go before the Lok Adalat for settlement of the dispute. In view of the perception that opponents No.1 to 7 and 13 and 14 were the real contesting parties, leave to delete names of opponents No.8 to 12 from the cause-title of the appeal was sought and granted. Even after prolonged pendency of the appeal, efforts to settle the dispute before the Lok Adalat and listing of the appeal for hearing from time to time, opponents No.8 to 12 were not formally deleted on record till the year 2008. Thereafter, when it was realized that settlement was not possible either by direct negotiation or through Lok Adalat and the matter was required to be decided on merits, the applicants have submitted that opponents No.8 to 12 herein are required to be joined again as parties to do complete justice and to avoid injustice to the opponents on any technical ground. The fact remained that opponents No.8 to 12 have never appeared in the First Appeal or the present appeal.
2. Relying upon observations of the Apex Court in Amit Kumar Shaw v. Farida Khatoon [(2005) 11 SCC 403], it was submitted by learned senior advocate Mr.K.S.Nanavati, appearing for the applicants, that the power of Court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Learned counsel also relied upon provisions of Order 41 Rule 20 of C.P.C. whereunder plenary powers are conferred upon the appellate court to direct joining of such person as a respondent who has been a party to the suit. It is, however, also provided in sub-rule (2) that no respondent shall be added under Rule 20 after expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it deems fit.
3. Arguing for the opponents, other than opponents No.8 to 12, learned senior counsel Mr.J.R.Nanavati and Mr.A.J.Patel vehemently argued that not only that the present application was grossly delayed, but the order granting leave to delete respondents No.8 to 12, present opponents No.8 to 12, was a final order affecting the parties and could not be recalled. It was pointed out that the applicants herein had chosen to delete the said opponents, insisted upon their deletion and obtained a positive order, while the appeal was pending since the year 2000. Learned counsel relied upon judgment of the Supreme Court in S.K.Saldi v. General Manager, U.P.State Sugar Corporation Ltd. [(1997) 9 SCC 661], which does not appear to be applicable as it is rendered in the context of Order 1 Rules 3 and 9. The other judgment of the Supreme Court in Ch. Surat Singh (dead) v. Manohar Lal [AIR 1971 SC 240], had the background of facts wherein son of the plaintiff was brought on record on death of the plaintiff during pendency of appeal before the High Court and he was represented by a counsel. However, he was not impleaded as a party in appeal before the Supreme Court and the appellants failed to show any good ground for not impleading him. Therefore, the appeal was held to be liable to be dismissed. The observations of the Apex Court in the context of such facts clearly appear to be against the objection raised by the opponents insofar as absence of opponents No.8 to 12 in the appeal may be pleaded to non-suit the applicants herein merely on technical grounds and in spite of the fact that those opponents were originally joined as opponents in the appeal. It appears from the record that opponents No.8 to 12 are stated to have assigned their right in the suit land in favour of the applicants herein and it being the basis of the suit and the claim of the applicants, they have been joined all throughout as necessary parties.
4. In the above facts and circumstances, we deem it proper and in the interest of justice to allow the application so as to reinstate opponents No.8 to 12 as opponents in the appeal. The application stands allowed accordingly with the direction that necessary amendment shall be carried out in the memo of L.P.A.No.657 of 2000 and fresh NOTICE of the L.P.A. shall be issued and served upon opponents No.8 to 12 so as to make the appeal ready for expeditious hearing. There is no order as to costs. It is clarified that the arguments and contentions of the opponents in the appeal on the basis of non-appearance of the opponents throughout will not be affected by the present order.
Sd/-
( D.H.Waghela, J.) Sd/-
( Smt.Abhilasha Kumari, J.) (KMG Thilake) Top