Case Note & Summary
The dispute concerned title and possession of a suit house. The original plaintiff, Sonuji Maharuji Raut, filed Regular Civil Suit No. 295 of 1982 against the original defendants (respondents 6 to 8) seeking a decree for possession. The trial court decreed the suit in his favour on 29-08-1985. During the pendency of the first appeal filed by the defendants, the original plaintiff sold the suit property to the appellants (two sale deeds in 1984-85, and the appellants further transferred the property to the third appellant in 1991). The original defendants, upon learning of these transfers, filed an application (Exhibit 40) in the pending appeal to add the purchasers as necessary parties, alleging the transfers were illegal and void. The first appellate court allowed the application on 07-08-1995, and the purchasers were joined as respondent nos. 2, 3 and 4 in Regular Civil Appeal No. 24 of 1987. Subsequently, the first appellate court allowed the appeal on 28-08-1996, dismissing the suit and holding that the defendant Mankuwar had a legal right to remain in possession. The original plaintiff did not prefer a second appeal; instead, the purchasers filed the present second appeal. During the pendency of this second appeal, the original plaintiff died and his legal heirs were brought on record as respondent nos. 1 to 4. The appeal against respondent no. 5 was dismissed on 15-02-2003. The primary question before the High Court was whether the second appeal at the instance of the purchasers, who were not original parties to the suit but were added as proforma respondents in the first appeal, was maintainable under Section 100 read with Order XXII Rule 10 of the Code of Civil Procedure, 1908. The respondents argued that the appeal was not maintainable because the purchasers were merely proforma respondents, the original plaintiff had accepted the appellate decree, and no leave had been obtained. The appellants contended that they had stepped into the shoes of the original plaintiff as his representatives-in-interest and that the admission of the appeal by the High Court impliedly granted leave. The Court rejected the respondents' preliminary objection, holding that Section 100(1) confers a right of appeal on any aggrieved person, not just original parties. The appellants, as representatives-in-interest of the original plaintiff, were covered by Order XXII Rule 10, and the admission of the second appeal satisfied the leave requirement. The decisions cited by the respondents were distinguished. After deciding the preliminary objection, the Court turned to the merits of the case, noting that the first appellate court had not properly addressed the issues decided by the trial court. However, the extracted judgment ends at this point, and the final outcome on the merits is not available.
Headnote
A) Civil Procedure - Second Appeal - Maintainability - Section 100(1), Code of Civil Procedure, 1908 - The right to prefer a second appeal is not limited to original parties to the suit; any person aggrieved by a decree passed in an appeal may file a second appeal if a substantial question of law is involved. The Court held that the appellants, as purchasers pendente lite who stepped into the shoes of the original plaintiff, were entitled to maintain the second appeal (Paras 11-12). B) Civil Procedure - Pendente Lite Transfer and Right of Appeal - Order XXII Rule 10, Code of Civil Procedure, 1908 - A purchaser of suit property during the pendency of a suit or appeal, who is added as a necessary party, is a representative-in-interest of the original plaintiff and can continue the proceedings. The admission of the second appeal by the High Court impliedly grants leave under Order XXII Rule 10, satisfying the requirement for such a party to appeal (Paras 12-13). C) Civil Procedure - Joinder in Appeal and Preclusion of Right to Appeal - Order XXII Rule 10, Code of Civil Procedure, 1908 - The fact that a pendente lite purchaser was added as a necessary party in the first appeal at the instance of the adverse party does not preclude such purchaser from filing a second appeal. The Court rejected the argument that because the original plaintiff did not appeal, the purchaser could not appeal independently (Paras 13-14).
Issue of Consideration
Whether a second appeal under Section 100 of the Code of Civil Procedure, 1908 is maintainable by a person who was not an original party to the suit but was later impleaded as a respondent in the first appeal as a pendente lite purchaser, when the original plaintiff has not appealed.
Final Decision
Decision not clearly stated
Law Points
- Legal points not extracted
- Right of appeal under Section 100 CPC not confined to original parties
- but available to any aggrieved person
- Leave granted by admitting second appeal satisfies requirement under Order XXII Rule 10 CPC
- Pendente lite purchasers stepping into shoes of original plaintiff are entitled to maintain second appeal
- Joinder as necessary party in first appeal does not preclude right to appeal further
