Kulwant Singh vs Kuldip Singh Bhattal and Others

Swatanter Kumar, J.—This o revision is directed against the order dated 18.4,1998. The facts though failing in a narrow compass but gives rise to two different revisions one RSA which have been filed by the same petitioner in relation to the same dispute.

Plaintiff Kuldip Singh Bhattal filed a suit for declaration challenging the seniority list prepared by the department. He raised a claim that he was senior to defendants No. 4 to 6. Defendants No. 3, 4 and 6 were proceeded against ex-parte in the suit while name of defendant No. 5 was deleted. Kulwant Singh was one of the defendants in the suit. The suit was decreed in favour of the plaintiff in the suit. The State of Punjab, impleading all other six defendants as proforma parties, filed an appeal and impleaded Kuldip Singh Bhattal (Plaintiff)as the contesting respondent. This appeal is pending before the Court of competent jurisdiction i.e. the learned Additional District Judge, Chandigarh.

In the meanwhile Kulwant Singh, present petitioner, filed his own appeal but the said appeal was barred by time and was, therefore, accompanied by an application u/s 5 of the Limitation Act. The application u/s 5 was dismissed by the learned first Appellate Court on 25.1.1997. While the application u/s 5 was dismissed, it appears that no effective order was passed on the appeal. Against dismissal of the application u/s 5 of the Limitation Act, the present petitioner filed another revision being civil revision No. 2514 of 1998 before this Court. In that revision petition it was contended by the present petitioner that the order dated 25.1.1997 is liable to be set aside as the learned First Appellate Court ought to have condoned the delay of 300 days in filling the appeal. No notice was issued on this civil revision No. 2514 of 1998 but the same was being heard along with the present civil revision.

The present petitioner then filed an application u/s 151 C.P.C. requesting the learned first Appellate Court to pass a formal order of dismissing the appeal on the appeal preferred by Kulwant Singh. This application was allowed and a decree of dismissal was passed by the learned First Appellate Court on 18.4.1998. The Court held that as the application u/s 5 of the Limitation Act was dismissed vide order dated 25.1.1997, the appeal did not survive for consideration and in fact the order dated 25.1.1997 amounted to dismissal of appeal as well. Against this judgment and order Regular Second Appeal No. 1897 of 1998 has been preferred by the present petitioner. No notice on the said Regular Second Appeal was also issued and the same was being heard along with this revision.

Coming to the merits of the present revision it is a fact that the memorandum of appeal before the learned First Appellate Court was neither signed by Kulwant Singh nor was signed by the attorney on his behalf. In these circumstances, the appeal could not be said to have been preferred by Mr. Kulwant Singh or on his behalf by the State. Under the provisions of the Civil Procedure Code, a memorandum of appeal not signed by the appellant or a counsel on his behalf is even liable to be rejected. Be that as it may, the State had preferred an appeal and termed the present petitioner Kulwant Singh as a proforma party. This itself amounts to incorrect description of a party because Kulwant Singh was a defendant in the suit and his seniority stood effected by the decree passed by the learned trial Court. As such he ought to have been impleaded as a proper respondent. The said appeal preferred by the State is admittedly pending for hearing.

In view of the stand taken by the counsel for the parties. I do not consider it necessary to deal with these revisions and appeal in any greater details. Mr. Chopra, the learned counsel appearing for the contesting respondent in this revision and learned counsel appearing for the State both have conceded that the respondent is an effected party and ought to have been served in the appeal in face of the fact that Memorandum of Appeal No. 53 of 1995 was neither signed by the present petitioner nor by his authorised counsel. As such he would be entitled to a hearing. They further conceded and said that they would have no objection if said Kulwant Singh puts in appearance in the appeal and is given the status of a contesting respondent.

In view of the stand taken by the learned counsel for the parties, the order dated 18.4.1998 is modified to the extent that Kulwant Singh shall be treated and transposed as a contesting respondent and not as a proforma party. Further, upon putting in appearance, he shall be entitled to the status of such a party and would be entitled to the benefits accruing therefrom in accordance with law. The parties to appear before the learned First Appellate Court i.e. Additional District Judge, Chandigarh on 26.12.1998. If any of the parties do not appear before othat Court on that date, the learned Additional District Judge would be free to proceed in accordance with law and as he deems fit in the facts and circumstances of the case. In view of the above facts, Civil Revision No. 2514 of 1998 and Regular Second Appeal No. 1897 of 1998 have become infructuous and are dismissed as such, while Civil Revision No. 2451 is disposed of as per the afore stated directions.