Devki Durrani vs Abdul Rashid Bakshi and another

(1) This revision is directed against the order dated 2361978 of the District Judge, Srinagar, dismissing the application of the petitioners under

order 41 R. 2 of the Code of Civil Procedure.

(2) Briefly speaking the facts of the case are that Abdul Rashid the respondent brought a suit for ejectment in respect of the suit premises against

the three defendants namely Shrimati Devki Durrani, Smt. Brij Mohni Durrani describing them as his tenants. That suit has been decreed by the trial

court. Against the judgment and decree of the trial court an appeal has been filed which is pending in the court of District Judge, Srinagar. Durirg

the pendency of the appeal an application under order 41 R. 2 C. P. C. was filed by Shrimati Devki Durrani and Shrimati Brij Mohani Durrani in

which they sought leave to raise additional grounds in the memo of appeal. The grounds sought to be raised are as follows:

(1) That Shri B. L. Durrani defendant No. 3 is only an attorney holder of the appellants and at present is acting as Manager of the said property.

(2) The appellants are the tanents of the suit property and Mr. B. L. Durrani has wrongly been impleaded as one of the tenants of the suit property.

The trial court has appreciated the evidence on the assumption that Mr. B. L. Durrani is one of the tenants and therefore has misdirected itself and

has fallen into a grave error of law.

(3) The trial court has not at all considered the comparative advantage and disadvantage of all the appellants who are the actual tanants visavis the

respondent plaintiff.

(4) That family arrangement which has been relied upon by the trial court is illegal and void. There could be no family arrangement between the two

coowners of the property. In that view of the matter the plaintiff does not hold the property in his own right. One of the executants of the family

arrangement is admittedly a minor. The family arrangement was therefore null and void and was also collusive, and this document did not authorise

the respondent to bring a suit for ejectment against the tenants.

(5) The trial court has not struck all the issues which expressly emerge from pleadings of the parties.

(3) The appellants also sought permission to implead Shri B.L. Durrani as respondent in the memo of appeal as according to them he was not a

party to the appeal but being a party to the decision given by the trial court, he was a necessary party and therefore it was necessary to implead

him as respondent.

(4) Objections to this application were invited from the plaintiff respondent. The learned appellate court on consideration of the matter rejected the

application on the following groundsill) Shri B. L. Durrani while submitting a joint amended written statement on 11.10.1976 on his own behalf and

on behalf of the other appellants as their attorney, admitted in most unequivocal terms that he along with the other defendants was the tenant of the

suit property. In his sworn testimony before the trial court also he admitted that he is the tenant of the suit property. In view of these facts the

appellants cannot be now permitted to change their stand to the manifest disadvantage of the plaintiff respondent and make out a new case by this

denial. The ground which is sought to be introduced in the memo of appeal was available to the appellants even 'at the time of filing the written

statement. Now after a period of 8 years they cannot be permitted to introduce a case totally inconsistent with the original stand as that would

certainly necessitate a fresh trial and also leading fresh evidence.

(2) The learned trial Judge also did not accede to the contention of the petitioner to be impleaded as respondent in the memo of appeal as the

petitioner already figured as a coappellant in the memo of appeal. .

(5) Appearing for the petitioner Mr. Z. A. Shah has contended that there were reasonable and cogent grounds on which was founded the

application of the appellants under order 41 R 2 of the Code of Civil Procedure. He has submitted that it was the duty of the appellate court to

adjucate upon the real controversies between the parties and it was with a view to meet this requirement that Rule 2. O. 41 has been engrafted in

order to allow an appellant to raise additional grounds in the memo of appeal. The additional grounds which the petitioners sought to raise in the

appeal were germane to the case and the appellate court could not refuse leave to add those grounds. The appellants could show that Mr. B. L.

Durrani was only the Manager of concern and an attorney holder on behalf of Shrimati Devki Durrani and Shrimati Brij Mohani Durrani The

appellants were also within their rights to urge before the court that the family arrangement was a sham transaction and had no legal basis and

because of this the respondent derived no title in the suit premises. He could not, therefore, maintain suit for ejectment against the appellants. As

the trial court had failed to consider and determine the important question of comparative advantage and disadvantage visavis all the three

defendants and it being an important question of law the appellants were within their rights to press this question and argue it on its legal merits. The

lower appellate court could not refuse leave to add Shri B. L. Durrani as respondent in the case as he very much figured as party at the trial stage.

The appellants had omitted to implead him as a party in the memo of appeal. The application made by the appellants for this purpose was within

time. The lower appellate court after acceding to the contention of the petitioners had wrongly ordered the impleadment of the petitioner as a

coappellant which was indeed a legal error. The appellate court could not force a coappellant to be added without the consent of other applicants.

Shri B. L. Durrani should therefore have been arrayed as respondent and not as coappellant. In support of his arguments Mr. Shah has relied upon

A. I. R. 1965 SC 1325, and A.I.R. 1958 SC 512.

(6) Shri M. L. Bhat learned counsel for the respondent has repudiated the arguments of Mr. Shah by enunciating the view that the scope of O. 41

R. 2 is limited. An appellant can be allowed to add these grounds of appeal which arise from the judgment itself. An appellant cannot be allowed to

introduce a new case which was not the subject matter of litigation between the parties at the stage of trial What the petitioners want to achieve by

moving an application under O. 41 R 2 is that they want to carve out a new case altogether which is quite inconsistent with the pleadings of the

parties and with the issues raised at the trial court stage. The learned counsel has admitted that only pure question of law can be allowed to be

raised at the appellate stage and the appellants can be allowed to add this ground in the memo of appeal.

(7) It is further submitted that the petitioners along with the respondent has acknowledged the plaintiff as their landlord. The story which is sought

to be introduced now as regards the character of Shri B. L. Durrani is an innovation which is without foundation. The name of Mr. B. L. Durrani is

shown in the memo of appeal as a coappellant. The memo has been signed by him How can Mr. Durrani now urge that he be impleaded as

respondent against his own stand and admission? Learned counsel has relied upon the observations made in A. I. R. 1971 SC 97 On a study of

the pleadings of the parties, the issues raked and the judgment rendered in the case as also on a comparative study at the memo of appeal and the

application under order 41 R. 2 of the Code of Civil Procedure, it appears to me that the grievance of the petitioners is wholly unfounded and the

arguments advanced at the bar are without any substance. In fact it is a case of much about nothing. In the application under O. 41 R. 2., the

appellants have submitted that defendant No: 3 Shri B. L. Durrani is only an attorney holder of the appellants and actually is the Manager of the

suit property. Now this additional ground is already a ground taken in the memo of appeal vide para 5 subpara (v). Although this was not the case

of the defendants at the trial stage that Shri Brij Lal Durrani was only a Manager and not a tenant yet this plea has been taken in the memo of

appeal. So there is no question of granting any leave to the appellants to incorporate this plea when it is very much in the original memo.

(8) Another ground which the appellants want to add is that the trial court has not raised all the issues in the case and the appellants should be

allowed to raise this ground. Vide Para 3 of the memo of appeal this plea has been raised by the appellants that the issues framed in the case were

not according to the pleadings of the parties and this has resulted in the miscarriage of justice.

(9) Great stress has been laid on the fact that the family arrangement was not a valid document and that it was a sham transaction, and it was also

illegal insmuch as one of the parties to the transaction was a minor. Vide para 4 of the memo of appeal the appellants have raised the plea that the

document purporting to be a family arrangement on the face of it is a sham one executed between the father, sons and the wife of respondent No.

1 with a view to harass the tenants, more specially the appellants into coercing them to raise rent in violation of the statutory provisions in this

regard. The fact of the minority of the respondent has also been mentioned in the same para. There is also an issue raised in the case the subject

matter of which is whether the plaintiff has become the sole owner of the suit property, by virtue of family arrangement. As regards this issue and

the averment made in the memo of appeal the petitioners can address arguments before the appellants seek incorporation of this so called

additional ground in the memo of appeal is any body's guess.

(10) Vide para 5 of the memo of appeal the appellants have taken a definite plea that Brij Lal Durrani is not a tenant but only a Manager. The

court has not assessed the comparative advantages and disadvantages of the parties on the rational basis, but has mixed up the whole thing in a

contused manner. The words 'of the parties used in the para do indicate that question of comparative advantage, and disadvantage has been raised

in relation to all the defendants in the case.

(11) For all these reasons, I therefore fail to comprehend as to why the petitioners seek leave of the court to raise additional grounds which are

already in the memo of appeal and on which they can address arguments on their respective merits if legally permissible. This is not the end of the

matter. As a matter of fact what I find is that by seeking leave to raise additional grounds in the memo of appeal, the appellants want to give a new

complexion to their defence and want to carve out a case different from that which the parties litigated in the court below. They have made certain

admissions of fact in the written statement and their attempt is to get over those admissions by these tactics I may not, however, be construed to

express any opinion on the merits of the cause and I refrain from doing so. But nevertheless it cannot escape our notice that the appellants want the

appellate court to overlook some dominant features in the case by moving this application.

(12) The petitioners had the advantage of the assistance of a senior counsel both at the trial stage, and at the time of the presentation of memo of

appeal. In fact the memo is signed by a senior advocate. The appellants should have realised that as a matter of fact they had raised all the grounds

in the memo of appeal for which they sought leave to introduce the present application. There can be no dispute with regard to the proposition that

where a plea sought to be raised is a pure question of law it can be allowed to de raised with the leave of the court even though that does not form

the subject, but the court will surely decline to grant leave to raise a ground which has got no bearing on the pleadings and on the judgment, and

which is wholly extraneous to the case, and is also a mixed question of fact and law. Viewed as such the appellants can urge before the lower

appellate court all the legal grounds taken by them in the memo of appeal e. g. the legal character and the validity of the family arrangement, and its

effect on the suit (regarding which an issue is already there), the question of comparative advantages and disadvantages visavis all the defendants

and other matters in issue arising out of the pleadings, but surely they shall have to confine themselves to the material extant on the record and

cannot travel beyond that, Under the garb of seeking leave to raise additional grounds, they cannot be allowed to plead an altogether inconsistent

case different from that what was their defence in the court below.

(13) The learned appellate Judge has considered the application under O. 41 R. 2 on its merits. He has exercised his discretion properly. Unless it

is found that the has not been exercised for valid and good reasons the High Court will not interfere.

(14) The result is that I feel loathe to accede to the contention! advanced on behalf of the petitioners. I also do not find any substance in. the

argument that Shri B. L Durrani be arrayed as a respondent in the case Shri B. L. Durrani, as observed above, figures in the appeal as an attorney

for the appellants In fact the appeal has been filed through him and he has also signed the memo. It bears the signature of a senior counsel How can

Shri Durrani now turn round and urge the court by making an application that he be made a respondent when he already figures as appellant in the

case. To me it appears that the intention of the petitioners is nothing but to gain time and delay the disposal of the appeal.

(15) For the foregoing reasons, the revision petition is hereby dismissed. Costs will fellow the event. Parties are directed to appear before the

lower court on 12 9.1978.