Imtiaz Ali and Others vs Mihin Lal and Others

John Edge, Kt., C.J. and Blennerhassett, J.—The plaintiffs brought their suit for possession and for damages. They made certain persons defendants. The plaintiffs obtained a decree. The defendants to the suit appealed. In the appellate Court the Judge, considering that one Mihin Lal should be a party to the appeal, made him a party to the appeal as a defendant-appellant. He had not before been a party to the suit. The Judge delivered a judgment if which he found all the issues against the defendants-appellants including Mihin Lal. This appeal is from the decree founded upon that judgment. Mihin Lal is one of the appellants. It turns out on examination of the record that no decree was made as against Mihin Lal in the Court below. He consequently had no right of appeal from the decree below, and his appeal must be dismissed. There is nothing in the appeal of the other appellants. The fact of Mihin Lal being made a party in the Court below did not prejudice them. The appeal so far as it concerns the other appellants must be dismissed.

Before disposing of this appeal, we think it right to say that a person who has been a stranger to the suit in the Court of First Instance ought not to be brought on to the record of an appeal, unless he is brought on as a representative under the sections applying to the bringing on to the record of a representative in case of the death of a party to the suit or the devolution of title. When an appellate Court thinks it is necessary to have as a party before it in appeal, a person not appearing in a representative capacity and who is not a party to the suit in the Court of First Instance, the appellate Court should, in our opinion, remand the case to the Court of First Instance, direct that Court to bring on the particular person as a defendant, or as a plaintiff if he consented, give him time to file his statement and opportunity to produce his evidence and try the issues raised between him and the opposite side. It was the intention of the Legislature that in cases which might go in second appeal to the High Court, or which might go to Her Majesty in Council the parties to the suit should have the benefit of their issues of fact and of law being tried by two Courts. In the present case, if the decree below had been made against Mihin Lal, he would have had the benefit of the decision of only one Court on the facts, as by reason of Section 584 and Section 585 of the CPC this Court could not in second appeal try the issues of fact.

This appeal is dismissed with costs.