Supreme Court of India
IL AND FS ENGINEERING AND CONSTRUCTIONS COMPANY LTD. versus M/S. BHARGAVARAMA CONSTRUCTIONS & ORS. on 16 December 2021
484
SUPREME COURT REPORTS
[2021] 9 S.C.R.
AIL AND FS ENGINEERING AND CONSTRUCTIONSCOMPANY LTD.
v.
M/S. BHARGAVARAMA CONSTRUCTIONS & ORS.
(Civil Appeal No. 7639 of 2021)
B
DECEMBER 16, 2021
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Code of Civil Procedure, 1908: s.96 and Or.XLI r.31 – Suitfor recovery filed by appellant-original plaintiff against respondentCno.1 and 2-original defendants – Trial court decreed the suit –Respondent no.1 and 2-original defendants filed appeal before HighCourt – In the said appeal, respondent no.1 and 2-originaldefendants filed a miscellaneous application seeking impleadmentof AP Transco as party respondents to the first appeal – High CourtDwithout assigning any reasons as to why the proposed respondentsshould be impleaded in the first appeal, allowed the said applicationand directed to implead A.P. Transco as party to the appeal as wellas to the original suit – Not only that, while allowing the saidapplication for impleadment, thereafter, without further enteringinto the merits and/or expressing anything on merits and solely onEthe ground that as the application for impleadment was allowed,the High Court set aside the judgment passed by the trial court andremanded the matter to the trial court with a direction to the trialcourt to decide the suit afresh after affording an opportunity to theimpleaded party to lead evidence in the suit – On appeal, held: ThisFis not the manner in which the High Court should deal with the firstappeal arising out of the judgment and decree passed by the trialcourt – Nothing was observed and/or decided on merits – Even noreasoning was given why A.P. Transco was required to be impleadedas a party to the appeal – High Court not only directed to impleadthe A.P. Transco as party to the appeal but has also directed toGimplead A.P. Transco in the original suit also – The suit was filed byappellant-original plaintiff and as per the settled proposition oflaw, the plaintiff is the dominus litis – No issue was raised beforethe trial court on non-joinder of parties – Therefore, as such whetherin the appeal preferred by the original defendants against the H
IL AND FS ENGINEERING AND CONSTRUCTIONS COM. LTD. v.M/S. BHARGAVARAMA CONSTRUCTIONS
judgment and decree passed by the trial court, such an applicationwould be maintainable or not, that itself is a question, which wasrequired to be first considered and decided by the High Court –Order of High Court set aside and matter remitted to High Court todecide the impleadment application and first appeal in accordancewith law and its own merits.
Allowing the appeal and remitting the matter to High Court,the Court HELD : 1. Nothing has been observed and/or decided onmerits. Even no reasoning has been given why the A.P. Transcowas required to be impleaded as a party to the appeal. The plaintiffis the dominus litis. No issue was raised before the trial court onnon-joinder of parties. Therefore, as such whether in the appealpreferred by the original defendants against the judgment anddecree passed by the trial court, such an application would bemaintainable or not, that itself is a question, which was requiredto be first considered and decided by the High Court.[Para 5][487-F-H]
2. Even otherwise, assuming that the application to impleadthe A.P. Transco as a party to the appeal on an application filed bythe respondent Nos.1 and 2 - original defendants was maintainableand was to be allowed is not discussed. There cannot be anautomatic allowing of the appeal and quashing and setting asidethe judgment and decree passed by the trial court without anyfurther entering into the merits of the appeal and/or expressinganything on merits in the appeal on an impleadment of a party inan appeal. How to deal with and decide a first appeal under Section96 and Order XLI Rule 31 of the CPC has been dealt with by thisCourt in a catena of decisions. As observed and held by this Courtin the case of K. Karuppuraj vs. M. Ganesan “without framingpoints for determination and considering both facts and law;without proper discussion and assigning the reasons, the FirstAppellate Court cannot dispose of the first appeal under Section96 CPC and that too without raising the points for determinationas provided under Order XLI Rule 31 CPC.” The order passedby the High Court impleading A.P. Transco as party to the appealas well as to the original suit is set aside. Consequently, impugned A
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Ajudgment and order passed by the High Court quashing andsetting aside the judgment and decree passed by the trial courtis also set aside. [Paras 6, 7][488-A-F]
K. Karuppuraj v. M. Ganesan 2021(10) JT 58 – reliedon B
Case Law Reference
2021(10) JT 58relied onPara 6
CIVIL APPELLATE JURISDICTION : Civil Appeal No.7639of 2021CFrom the Judgment and Order dated 11.09.2017 of the High Court From the Judgment and Order dated 11.09.2017 of the High Courtof Judicature at Hyderabad for the State of Telangana and the State ofAndhra Pradesh in C.C.A. No.99 of 2017.
R. V. Yogesh, Vishnu Shankar Jain, Advs. for the Appellant.
Ms. Mahalakshmi Pavani, Sr. Adv., G. Balaji, Advs. for theDRespondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
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1. Feeling aggrieved and dissatisfied with the impugned judgmentEand order dated 11.09.2017 passed by the High Court of Judicature atHyderabad for the State of Telangana and the State of Andhra Pradeshpassed in CCCA No.99 of 2017 by which the High Court has allowedthe said appeal and has quashed and set aside the judgment and decreepassed by the trial court and has remanded thematter to the trial court,Fthe original plaintiff has preferred the present appeal.
2. That the appellant herein – original plaintiff filed a suit forrecovery of Rs.47,90,088/-, along with interest of 18% from the respondentNos. 1 and 2 herein original defendants. The said suit came to be decreedby the trial court. The judgment and decree passed by the trial courtGcame to be challenged by the original defendants – respondent Nos. 1and 2 before the High Court by way of CCCA No. 99 of 2017. In thesaid appeal, respondent Nos. 1 and 2 herein – original defendants moveda miscellaneous application seeking impleadment of A.P. Transco andMAYTAS Infra Pvt. Ltd. as party respondents to the first appeal on theground that the subject work, which was given to the defendant No.1 byH
IL AND FS ENGINEERING AND CONSTRUCTIONS COM. LTD. v.M/S. BHARGAVARAMA CONSTRUCTIONS [M. R. SHAH, J.]
the appellant, was originally given by A.P. Transco to the appellant. TheHigh Court by the impugned order without assigning any reasons as towhy the proposed respondents have to be impleaded in the first appeal,allowed the said applicationand directed to implead A.P. Transco as partyto the appeal as well as to the original suit. Not only that, while allowingthe said application for impleadment, thereafter,without further enteringinto the merits and/or expressing anything on merits and solely on theground that as the application for impleadment was allowed, the HighCourt set aside the judgment and decree passed by the trial court andremanded the matter to the trial court with a direction to the trial court todecide the suit afresh after affording an opportunity to the impleadedparty to lead evidence in the suit.
3. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the original plaintiff has preferredthe present appeal.
4. We have heard the learned Advocates appearing for therespective parties at length.
5. We have gone through the impugned order passed by the HighCourt. By the impugned judgment and order, the High Court has setaside the judgment and decree passed by the trial court, which was infavour of the appellant herein – original plaintiff, solely on the groundthat the application for impleadment filed by the respondent Nos. 1 and2 – original defendants –appellants before the High Court to impleadA.P. Transco has been allowed and, therefore, the judgment and decreeis set aside. This is not the manner in which the High Court was requiredto deal with the first appeal arising out of the judgment and decree passedby the trial court. Nothing has been observed and/or decided on merits.Even no reasoning has been given why the A.P. Transco was requiredto be impleaded as a party to the appeal. The High Court has not onlydirected to implead the A.P. Transco as party to the appeal but has alsodirected to implead the A.P. Transco in the original suit also. It is requiredto be noted that as such the suit was filed by the appellant – originalplaintiff and asper the settled proposition of law, the plaintiff is the dominuslitis. No issue was raised before the trial court on non-joinder of parties.Therefore, as such whether in the appeal preferred by the originaldefendants 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.
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A6. Even otherwise,assuming that the application to implead theA.P. Transco as a party to the appeal on an application filed by therespondent Nos.1 and 2– original defendants was maintainable and wasto be allowed is not discussed. There cannot be an automatic allowing ofthe appeal and quashing and setting aside the judgment and decree passedby the trial court without any further entering into the merits of the appealBand/or expressing anything on merits in the appeal on an impleadment ofa party in an appeal. We strongly disapprove the manner in which theHigh Court has disposed of the appeal. How to deal with and decide afirst appeal under Section 96 and Order XLI Rule 31 of the CPC hasbeen dealt with by this Court in a catena of decisions.As observed andCheld by this Court in the case of K. Karuppuraj vs. M. Ganesan,Civil Appeal Nos.6014-6015 of 2021 decided on 04.10.2021"withoutframing points for determination and considering both facts and law;without proper discussion and assigning the reasons, the First AppellateCourt cannot dispose of the first appeal under Section 96 CPC and thattoo without raising the points for determination as provided under OrderDXLI Rule 31 CPC.”
7. In view of the above discussion and for the reasons statedabove, the present appeal is allowed. We set aside the order passed bythe High Court in CCCAMP No.246 of 2017 impleading the A.P. Transcoas party to the appeal as well as to the original suit. Consequently, weEalso set aside the impugned judgment and order passed by the HighCourt quashing and setting aside the judgment and decree passed by thetrial court. We remand the matter to the High Court to decide and disposeof the CCCAMP No. 246 of 2017 and the first appeal in accordancewith law and on its own merits. While deciding the CCCAMP No.246 ofF2017 filed by the original appellants – respondent Nos. 1 and 2 herein –original defendants to implead the A.P. Transco in the appeal as well asthe original suit.The High Court shall consider whether such an applicationin the appeal preferred by the original defendants would be maintainableor not and if so under which provision of Code of Civil Procedure itwould be maintainable.G
Present Appeal is Allowed accordingly with exemplary cost, whichis quantified at Rs.25,000/- to be deposited by respondent Nos. 1 and 2herein with the State Legal Services Authority of the concerned HighCourt within a period of four weeks from today.
HDevika Gujral