JUDGMENT
Tatia, J.
1. Heard learned counsel for the parties on the application dated 7.4.2000 submitted by the appellant with a prayer that the legal representatives of Sohanlal be taken on record as their names were inadvertently not mentioned in the appeal and instead of name of legal representatives of Sohanlal, name of Sohanlal himself has been shown in the array of parties. It is submitted by learned counsel for the appellant that the suit was originally filed in the year 1983 and the suit was dismissed on 22.2.1991. The. appeal was preferred against the above judgment and decree dated 22.2.1991. The appeal was transferred to the Court of Civil Judge (Sr. Div.), Nathdawara and during the pendency of the appeal defendant-Sohanlal expired and an application Under Order 22 Rule 4 CPC was submitted by the appellant- plaintiff himself on 22.5.1995 and the legal representatives of deceased-Sohanlal were taken on record. According to appellant inadvertently, Sohanlal has been impleaded as party respondent No. 1 in this appeal despite all above fact and this mistake occurred due to the fact that a judgment and decree of the First Appellate Court dated 28.2.1997, the respondent No. 1 has been shown as Sohanlal, though the legal representatives of Sohanlal were taken on record in the ear 1995. According to learned counsel, when the mistake can be committed by the Court itself, and which misled the counsel for appellant as appeal was drafted by the Advocates and not by parties, the party cannot be punished. The name of Sohanlal has been shown as respondent No. 1-defendant in this appeal and this is a bona fide mistake in framing the cause title only, which has nothing to do with the merit of the case. In these circumstances, the appellant prayed that the legal representatives of deceased-Sohanlal be impleaded as party in place of Sohanlal-respondent No. 1.
2. Learned counsel for the legal representatives of deceased- Sohanlal vehemently opposed the application and submitted that the application filed by the appellant is barred by time as per Sub-clause (2) of the Order 41 Rule 20 CPC as the limitation for filing appeal has already expired. Learned counsel for the respondent also submitted that this was a clear case of negligence of the appellant and appellant himself moved application for bringing legal representatives of deceased-Sohanlal before the First Appellate Court. Therefore, appellant-plaintiff cannot say that he had no knowledge of the fact that Sohanlal was died at the time of filing of the appeal. It was also submitted by learned counsel for legal representatives of Sohanlal that their is no application Under Section 5 of the Limitation Act filed by the appellant alongwith this application. Learned counsel for the legal representatives of deceased-Sohanlal relied upon the judgment of the Hon’ble Apex Court delivered in the case of Ch. Surat Singh (dead) and Ors. v. Manohar Lal and Ors. (1).
3. Heard learned counsel for the parties and it is clear from the certified copy of the judgment and decree dated 28.2.1997 that Sohanlal has been shown as respondent No. 1, who, admittedly, expired before the decision of the appeal by the First Appellate Court and Sohanlal’s legal representatives were taken on record is an admitted fact. Therefore, it is clear that even the First Appellate Court has committed a mistake as fact of death of Sohanlal was already on record of the First Appellate Court. The First Appellate Court’s order was already on record for taking on record the legal representatives of Sohanlal. Despite all these facts, if the Court has committed mistake, which continued in the memo of appeal by describing Sohanlal as the respondent-defendant No. 1 and when the appellant submitted that because of this reason only respondent No. 1 -Sohanlal has been impleaded as party, there is no reason to disbelieve this fact alleged by the appellant.
4. Sub-clause (2) of Order 41 Rule 20 CPC provides that no respondent shall be added under this rule, after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit. Therefore, it is clear from the above provision itself that discretion has been given to the Court to implead the respondent even after expiry of period of limitation provided for appeal. The Sub-clause (1) of the Rule 20 of Order 41 CPC empowers the Court, while hearing the appeal, that if Court found that one of the party to the suit has not been impleaded in the appeal then the Court can adjourn the hearing of the appeal to implead the that person as party in appeal. The harmonious constructions of above two provisions of Sub-clauses (1) & (2) Rule 20 of Order 41 CPC provide that if Court thinks proper to implead the party in the appeal even after expiry of period of limitation, it can implead the respondent. But here in this case, this is not a case of impleading the party for the first time in the appeal but this is a case of correction of mis-description of the party as Shri Sohanlal was impleaded as respondent and, admittedly, who was not alive at the time of filing of the appeal. Therefore, it is not a case of mere not impleading a party but this is a case of correcting a mis-description of the party by impleading the legal representatives of respondent-Sohanlal. It is not a case that defendant-Sohanlal (original defendant) and Municipal Board, Nathdawara (present respondents) were parties in the suit and one of the respondent was totally left out.
5. I considered the judgment cited by learned counsel for the legal representatives of Sohanlal delivered by the Apex Court in the case of Ch. Surat Singh (supra). The facts of above case clearly show that during the pendency of the appeal one Surat Singh expired and his legal representatives were taken on record including Lt. Col. Yadav, who was the son of Surat Singh. @But this Lt. Col. Yadav was not impleaded as party in the appeal. The explanation given for not impending legal representative Lt. Col. Yadav as party, was that in the judgment of the High Court it was not clearly mentioned that Lt. Col. Yadav was party to the appeal, but Hon’ble Apex Court found from the certified copy of the order of the High Court that name of Lt. Col. Yadav was shown and he was represented by counsel and, therefore, the Hon’ble Apex Court held that ground shown by the appellant is not a good ground for not impleading Lt. Col. Yadav as a party in the appeal and, therefore, held that the appeal cannot be entertained in absence of necessary party. But here in this case, as mentioned above, there is a clear mention of a dead person as a respondent in the certified copy of the judgment and decree passed by the First Appellate Court and, therefore, there appears to be reason for mistake and this mistake can be corrected and in view of the above reasons the delay in filing application for bringing legal representatives on record of Sohanlal is condoned. The appellant is directed to file amended cause title.
6. No need to issue notice to the legal representatives of deceased-Sohanlal as they are being represented by learned counsel Shri Kawadia. It is admitted position that wife of Sohanlal Smt. Sohani Bai already expired and her legal representatives are already on record, therefore, appellant is directed to file amended cause title without impleading Sohani Bai as legal representative of Sohanlal.
