Appeals against a judgment or decree are a major right of the parties to the suit. The rules to deal with and decide the first appeal has been enunciated in order XLI rule 31 of the Code of Civil Procedure, 1908. Any judgment or decree which flout the provisions of Order XLI Rule 31 CPC is ultra vires. There cannot be an automatic allowing of the appeal and quashing and setting aside the judgment and decree passed by the trial court without any further entering into the merits of the appeal and/or expressing anything on merits in the appeal on an impleadment of a party in an appeal. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice M.R. SHAH & Hon’ble Justice B.V. NAGARATHNA in the matter of IL and FS Engineering and Constructions Company Ltd vs M/s. Bhargavarama Constructions & Ors [CIVIL APPEAL NO.7639 OF 2021].
The facts that gave rise present case were that the appellate instituted a suit for the recovery of Rs. 47,90,088/- along with 18% from the respondent 1 & 2. The said suit came to be decreed by the trial court in favor of the appellate. Aggrieved by the said judgment the defendants preferred an appeal before the High Court. In the meanwhile, the respondents also moved a miscellaneous application seeking impleadment of A.P. Transco and MAYTAS Infra Pvt. Ltd. as party respondents to the first appeal on the ground that the subject work, which was given to defendant No.1 by the appellant, was originally given by A.P. Transco to the appellant. The High court by the impugned order without assigning any reasons allowed the said application for the impleadment of A.P. Transco and also directed to implead A.P. Transco in the original suit. By virtue of the said order of impleadment, the High Court set aside and quashed the judgment and order of the Trial Court. Aggrieved by the said order of the High Court the appellate had preferred the instant appeal.
The Hon’ble Supreme Court observed that nothing has been observed and/or decided on merits. Even no reasoning has been given why the A.P. Transco was required to be impleaded as a party to the appeal. This is not the manner in which the High Court was required to deal with the first appeal arising out of the judgment and decree passed by the trial court.
Additionally, the Hon’ble Supreme Court held that “The High Court has not only directed to implead the A.P. Transco as a party to the appeal but has also directed to implead the A.P. Transco in the original suit also. It is required to be noted that as such the suit was filed by the appellant – original plaintiff and as per the settled proposition of law, the plaintiff is the dominus litis. No issue was raised before the trial court on the nonjoinder of parties. Therefore, as such whether in the appeal preferred by the original defendants against the judgment and decree passed by the trial court, such an application would be maintainable or not, that itself is a question, which was required to be first considered and decided by the High Court. ”
Furthermore, the Hon’ble Supreme Court referred to the case of K. Karuppuraj Vs. M. Ganesan, Civil Appeal Nos.6014-6015 of 2021 wherein it was held that “without framing points for determination and considering both facts and law; without proper discussion and assigning the reasons, the First Appellate Court cannot dispose of the first appeal under Section 96 CPC and that too without raising the points for a determination as provided under Order XLI Rule 31 CPC”
Finally, the Hon’ble Supreme Court allowed the instant appeal consecutively setting aside the impugned orders and remanded the matter back to the High Court to dispose of according to law and merits. Additionally, an exemplary cost of Rs. 25000/- was levied on respondents no. 1 & 2.
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Judgment Reviewed by: Rohan Kumar Thakur
