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Judgment
Lingaraja Rath, J.—This appeal has been directed against the order of the learned Single Judge setting aside the judgment and decree in O.S.No. 296 of 1982 on the file of the learned Additional Chief Judge, City Civil Court, Hyderabad and remanding the matter to the trial Court with directions to allow the present Respondent No. 8 to come on record, permitting her to file written statement, frame an additional issue and directing the trial Court to proceed with and dispose of the entire suit on merits afresh. The order is purported to be passed under Order VDI Rule 10 C.P.C.
The plaintiff-1st respondent (sic. appellant) brought the suit claiming certain reliefs concerning the alleged misdeeds and frauds committed by one Late Mr. Seshachalapathi impleading his son Krishna Sarma and two daughters - Indira and Hymavathi as the Defendants. Later on, the widow of Seshachalapathi was impleaded as the Defendant No. 4. Thereafter, I.A.No.189 of 1983 was filed by the plaintiff on 13-4-1983 seeking to implead defendants 5 to 7 viz., the other sons and daughters of late Seshachalapathi. In the petition, a prayer was also made to implead another daughter Smt. A. Annapurna, the present Respondent No.8 as the defendant. The petition was allowed. But, while the others were impleaded as defendants, Respondent No.8 was not so impleaded as no batta was paid for her. As such, the petition to implead was dismissed so far as she was concerned. The suit having been decreed, Defendant Nos. 1, 2 and 4 viz., the son, one daughter (Indira) and Mrs. Seshchalapathi, Defendant No.4 preferred the appeal C.CC.A.No.94 of 1987. During the pendency of the appeal, Appellant No.3 (Defendant No.4) died on 4-12-1993. An application registered as C.M.P.No.18720 of 1995 was filed to bring her legal representatives on record. In that application, a prayer was made to bring Smt. A. Annapurna, the present Respondent No. 8 on record as the legal heir of defendant No.4 and also to declare the existing Respondent Nos.2, 3, 4, 5 and 6 as the legal heirs of Appellant No.3. Subsequently C.M.P. Nos.1962 and 1963 of 1996 were filed to condone the delay in filing the petition for setting aside the abatement and to set aside the abatement on 21-12-1995. Orders were passed on 25-3-1996 by the learned Single Judge allowing C.M.P.No.18720 of 1995 and directing the appellants to take out notice on the legal representative i.e. present Respondent No.8 as she is their own sister. Thus, Respondent No.8 was permitted to be impleaded as a party to the appeal, which order was carried out as appears from the endorsement on the memorandum of the appeal in A.S.No.94 of 1987 (C.C.CA.No.94 of 1987). In the same order a direction was also there that unless the appellants file proof of service of notice on the newly added legal representative within thirty days from the date of the. order, the L.R. petition shall stand dismissed which obviously meant that the petition to implead Smt. A. Annapurna would stand dismissed. Subsequently, a note was put up by the Assistant Registrar that the condition of filing proof of service had not been complied with and hence submitted for orders as to whether the default clause is to be worked out. Under the orders of the Deputy Registrar on 18-2-1997, the default clause was worked out and as such the petition stood dismissed. Consequently, the impleading of respondent A. Annapurna as legal representative was not allowed. Orders were passed on 25-3-1996 by the learned Single Judge dismissing the C.M.P.No. 1962 and 1963 of 1996 saying that the two petitions were not necessary as respondents 3, 4 and Appellant No. 1 who are the sons of the deceased (Appellant No. 3) were representing her estate.
It is submitted by the learned Counsel for the appellant that the order was factually incorrect as apart from the legal representatives of Appellant No. 3 who were already on record, the present Respondent No. 8 was not on record by then and the application to implead her as a party to the appeal had been only allowed on that day conditionally. The very application to implead her had been made in the year 1995 and as such condoning the delay and setting aside the abatement petitions were necessary and had to be disposed of. We find substance in the submission.
While the things stood thus, an application was filed by the present Respondent No. 8 on 27-9-1996 of her having received notice from the High Court and praying to transpose her as Appellant No. 3 in C.CC.A.No. 94 of 1987. Considering such petition, the learned Single Judge passed orders on 28-3-1997, which are presently impugned, taking the view that although Respondent No. 8 had been originally sought for to be impleaded as a defendant in the suit at the instance of the present Respondent No. 1 which application had been allowed, she was not impleaded as the plaintiff-respondent failed to pay batta and that hence the decree itself got vitiated in her absence. He accordingly set aside the judgment and the decree and remanded the matter for fresh trial as indicated earlier.
It is always in the discretion of the plaintiff as to whom to implead as defendant. If the plaintiff thought that Respondent No. 8 is a necessary party and wanted her as a defendant but ultimately did not pursue to implead her as a party, the suit has to be decided in her absence with the consequences flowing therefrom. Order VIII Rule 10 C.P.C. has no application to such facts which provision only deals with the procedure when a party fails to present the written statement called for by the Court. If the plaintiff had obtained a decree in the absence of a necessary party, the Court has to consider the implications of such a decree and the decree may be set aside for non-joinder of necessary party. Such a fact has not been found in the impugned order.
After hearing the learned Counsel for the parties, we are convinced that this is a case where Smt. A. Annapurna has to be allowed to be brought in as an appellant in the case. Impleactmg her as a party to the appeal had been allowed on condition of filing the proof of service, In her petition presented on 27-9-1996 she herself stated that she had received the notice. She had appeared through Counsel and prayed for to be transposed as an appellant. As a matter of fact, the respondents themselves wanted her to be impleaded as a defendant to the suit.
As it is found that C.M.P.Nos. 1962 and 1963 of 1996 had been erroneously dismissed as not being necessary and not on merits, we reverse the dismissals and allow the petitions. Smt. A. Annapurna had also been directed in C.M.P.No. 18720 of 1995 to be impleaded as Respondent No. 8 to that appeal. But the orders stood retracted as the appellant in the appeal did not file proof of service on her. Hence, as Smt. Annapurna was not impleaded as party-respondent due to a technical defect and she only filed an application of having received the notice and to transpose her as appellant No. 3, it is in fitness of things that she should be taken to have been impleaded as Respondent No. 8, for having herself admitted to have received notice and also to transpose her as Appellant No. 3. The judgment of the learned Single Judge dated 28-3-1997 is set aside. The appeal has now to be heard afresh with Respondent No. 8 as the Appellant No. 3 and the validity of the decree obtained in her absence has to be decided amongst the other matters on merit.
The L.P.A. is ordered accordingly.