Preparation of memo of appeal is not duty of a litigant but is a technical job must be undertaken by skilled lawyers

RAJASTHAN HIGH COURT (JAIPUR BENCH)

SINGLE BENCH

( Before : Bapna, J. )

GIRWARLAL — Appellant

Vs.

JAGROOP — Respondent

Civil Second Appeal No. 263 of 1955

Decided on : 20-03-1958

Cases Referred

Shangara Singh Vs. Imam Din, AIR 1940 Lahore, 314

Counsel for Appearing Parties

R. P. Goyal, Advocate, for the Appellant; Umrao Lal, Advocate, for the Respondent Nos. 1 and 2

JUDGMENT

Bapna, J.—This is an application for entering the names of Arjun and Godha as respondents in place of Rai Bhan, respondent No. 5, mentioned in the memorandum of appeal, on the ground that a mistake had been made in entering Rai Bhan as respondent No. 5. He had died during the pendency of the case in the lower court, and his two sons Arjun and Godha had been brought on record in the lower court, but as it happened, the certified copy of the judgment and decree, which was prepared by the lower court, continued to mention Rai Bhan as respondent, and the names of Arjun and Godha were not entered in the judgment and decree in place of Rai Bhan. It is said that the mistake is bonafide and Arjun and Godha may now be entered in place of Rai Bhan.

2. Notices were given to the respondents. Mr. Umrao Lal contends on behalf of Arjun and Godha that they should not now he brought on record, as the appellant had failed to implead them as respondents within the period of limitation allowed for the appeal, and they had obtained a valuable right, according to the judgment of the lower court, which should not be put in jeopardy by their being made respondents after the period of limitation. He relies on Shangara Singh v. Imam Din, A.I.R. 1940 Lahore, 314. With great respect I am unable to agree with the decision in the said case of the Lahore High Court. When Arjun and Godha had been brought on record in the lower court, it was the duty of the court to prepare a correct record, and to issue the copy showing the correct names of the parties. It is no doubt the duty of the litigants to instruct their lawyers as to who should be made parties in the case. The preparation of the memorandum of appeal is, however, not the duty of a litigant, but is a technical job, which is to be undertaken by the persons who are skilled in law, and they are the lawyers. If on the face of the judgment and decree the names of the appellants and respondents are given, the lawyer would not apparently be making any mistake in entering those names in the memorandum of appeal. He cannot be expected to make an enquiry whether any person mentioned in the array of parties has died in the meanwhile or not. If any person has died after the judgment, then it may be the duty of the litigant to inform his lawyer. But if nothing has happened after the judgment and decree of the lower court, a party cannot be penalised for the mistake of the lower court. It may be a case of adding a new party in the appeal, but then the only result would be that the appeal would be treated as one filed against him on the date when he was sought to be made a party. If that date is beyond limitation, the party can request for being given the benefit of Section 5 of the Limitation Act. I do nor agree with the reasoning in the Lahore case(Supra), that Section 5 of the Limitation Act is only applicable when the appeal is first presented. So far as the new respondent is concerned, the appeal against him can only be said to be presented when the application is made to make him a party. If that is the date when the appeal can be said to be presented against him, Section 5 of the Limitation Act comes into play.

3. In the present case, I consider that there were good grounds for not impleading Arjun and Godha. Their father Rai Bhan was made a respondent already, and it showed that the appellant had no desire to give up the claim against Arjun and Godha.

4. The application for bringing on record Arjun and Godha is allowed. They will be entered as respondents, and the name of Rai Bhan will be struck off.

Dated : 20-03-1958


(1959) RLW 308