Judgment:
B.K. Somasekhara, J.
1. This appeal is directed against the judgment and decree of the learned Principal Subordinate Judge, Vijayawada in O.S.No. 21 of 1979, dated 1-7-1982. The appellant is the defendant and the respondent is the plaintiff in the suit. The reference to the parties as in the status they occupy in the trial Court would be convenient and therefore, it would be done accordingly. The facts and circumstances leading to this appeal may be stated in brief initially:
2. The plaintiff filed the suit against the defendant for recovery of Rs. 30,670/- and interest of Rs. 670/- with costs and such other reliefs as may be granted by the Court. The defendant resisted the suit. It appears that the defendant addressed a letter to the plaintiff dated 14-7-1976 requesting him to advance monies as he required it for payment to one Tammareddy Krishna Murthy for his tobacco cultivation in his village as he had no money with him to lend. It appears that subsequently he approached the plaintiff and collected Rs. 30,000/- from him in cash on 11-9-1976 and passed on a receipt in his favour evidencing the transaction. It is alleged that the defendant promised him to repay it by March, 1977 and that in spite of repeated demands, he did not pay it. After issuing a Registered notice dated 4-12-1978 without any response, or avail, the plaintiff had to file the present suit for the reliefs stated above.
3. The defendant in his written statement denied the loan transaction pleaded in the plaint inasmuch as his liability to pay the amount. While admitting that he has addressed a letter to the plaintiff dated 14-7-1976 the defendant pleaded that since Krishna Murthy, a relative of the plaintiff, needed money on his behalf, he approached the plaintiff to pay the money to the said person. He has contended that he never undertook any responsibility under the transaction for repayment of the said amount or for securing the payment of the money by Krishna Murthy. It appears that ultimately the plaintiff advanced Rs. 30,000/- to the defendant on his recommendation letter inasmuch as on the basis of the receipt executed by him on 11-9-1976. The defendant has pleaded that at the relevant time he was working as Assistant Engineer, R & Bat Gudivada and to avoid embarrassment to Krishna Murthy, who is a close relative of the plaintiff, he executed a receipt as stated above purporting to be the document evidencing the receipt of money for being paid to Krishna Murthy and for no other purpose. Therefore, it is contended that no pronote or any document came into existence evidencing the said transaction. It is also contended by the defendant that Krishna Murthy having taken the loan from the plaintiff as stated above, discharged it by transfer of his land measuring Acs.1-30 cents situated at Amalapuram in favour of the fostered son of the plaintiff and thus the said debt has been fully discharged. Therefore, the defendant pleaded for dismissal of the suit with costs.
4. The following issues were framed by the trial Court initially:
(1) Whether the defendant has not borrowed Rs. 30,000/- from the plaintiff?
(2) Whether the suit is bad for non-joinder of parties and
(3) To what relief ?
Finally, the issues were recast as follows:
(1) Whether the defendant borrowed the amount as pleaded by the plaintiff and passed receipt therefor?
(2) Whether the suit is bad for non-joinder of parties and
(3) To what relief ?
During the trial, the plaintiff examined himself as P.W.I and got marked as many as seven documents as per Exs. A-l to A-7, whereas the defendant examined himself as D.W.I and two more witnesses D.Ws. 2 and 3 in addition to the letting of three documents marked as Exs.X-1 to X-3. After hearing both sides and on the basis of the evidence produced before him, the learned Subordinate Judge pronounded the judgment and decreed the suit as prayed for.
5. The grounds of appeal can be recorded in brief as hereunder:
(1) The finding of the learned Subordinate Judge that the defendant himself has borrowed money from the plaintiff is not correct.
(2) The appreciation of evidence by the learned Subordinate Judge in regard to the nature of the transaction between the parties and the liability fastened thereunder is not correct.
(3) The finding of the learned Subordinate Judge that the said debt is not discharged by D.W.2 is not correct.
(4) The learned Subordinate Judge is in error in not appreciating that no decree could be passed in the absence of impleading Krishna Murthy, D.W.2 as a party to the suit he being the necessary party in law.
(5) The finding of the learned Subordinate Judge that the defendant is liable to pay the suit claim is wrong; and
(6) The judgment and decree of the learned Subordinate Judge are not legal and deserve to be set aside, thereby, dismissing the suit.
6. The learned Advocate for the defendant has contended that the whole judgment and decree of the learned Subordinate Judge become vitiated in view or the wrong approach to the facts and circumstances of the case wherein the defendant was not at all in the picture except obliging D.W.2 to borrow money on his Recommendation and that particularly in the absence of D.W.2 who is a necessary party to the suit it was not possible for the learned Subordinate Judge to decree the suit as a finality and to meet the ends of justice. The Seamed Advocate appearing for the respondent/plaintiff has contended that in the nature of pleadings and the evidence adduced, the learned Subordinate Judge was totally justified in coming to such a conclusion both in regard to the suit debt between the plaintiff and the defendant and the plea of discharge of the same by D.W.2. In substance, the learned Advocate for the respondent-plaintiff was to support the judgment totally.
7. On a consideration of the evidence in the case, the facts and circumstances of the case and the legal implications flowing therefrom, this Court has to approach the matter in a manner so as to render absolute justice to both the parties and to put an end to the matter without further scope for reopening it at any stage in any manner.
8. Admittedly, the money transaction in the suit is admitted wherein the defendant sent a recommendation letter Ex. A-l dated 14-7-1976 requesting the plaintiff to advance monies to D.W.2 as he had no money to lend and as D.W.2 required money for his tobacco cultivation. Ex.A-1 is in Telugu language and it reads as follows:
The English version of the said Ex.A-1 is as follows:
'To
Sri Chintapally Ramachandra Rao Garu,
We are safe here and hope the same with you.
This year also Krishna Murthy is raising tobacco. I have no money with me. Therefore, I request you to adjust money whenever asked by Krishna Murthy.
No more to pen.
Yours
Sd/- Chelasani Sitharama Swamy
14-7-1976'
The contents of Ex.A-1 are so clear that D.W.2 must have approached the defendant for lending money for tobacco cultivation whereas he was unable to oblige him since he had no money and therefore he approached the plaintiff to advance money to D.W.2. If that is the simple meaning which can be brought out from the contents of Ex.A-1, it is to be inferred that the transaction was initiated by the defendant through the plaintiff. The evidence also supports such an inference in the nature of the testimony of the plaintiff himself as P.W.I and the testimony of the defendant as D.W.1. It cannot be for gotton that D.W.2 is a close relative of the plaintiff and in such a situation, normally speaking, D.W.2 would have approached the plaintiff for the loan, but due to certain reasons, he could not have approached the plaintiff. Perhaps he prevailed upon the defendant to get him the loan. In view of the contents of Ex.A-1, D.W.2 appears to have prevailed upon the defendant to get the money from the plaintiff when he was unable to pay. There is one more strong circumstance which is in favour of the above inference. Ex.A-2 is the receipt under which the defendant has acknowledged the receipt of Rs. 30,000/- as a part of the transaction. The contents of Ex.A-2 are as follows:
'Received Rs. 30,000/- (Rupees Thirty thousand only) from C. Ramachandra Rao Garu towards payment to Sri Krishna Murthy.
Ch. Seetharama Swamy
11/9/1976'
It means that an amount of Rs. 30,000/- was received by the defendant from the plaintiff for being paid to Krishna Murthy, D.W.2. Another circumstance that may be probable in this situation is that the defendant has acknowledged the payment of Rs. 30,000/- for the benefit of D.W.2 or that he received the said money for being paid to D.W.2. Any amount of explanation in the testimony of the defendant as D.W.1 and D.W.2 or the plaintiff may not improve the contents of Exs.A-1 and A-2 as above. This Court apprehends whether the parties to a document can repudiate its contents which would represent the contract between them, but for certain circumstances enumerated under Section 92 of the Evidence Act. No such circumstances are pleaded by the parties to Exs.A-1 and A-2 and in particular the defendant. Therefore, this Court is bound to give effect to the true meaning of the contents of Exs.A-1 and A-2. That meaning can never be construed to say that the defendant collected the money of Rs. 30,000/- from the plaintiff since he wanted to oblige D.W.2 under the circumstances stated above.
9. The learned Subordinate Judge appears to have taken that the whole transaction under Ex.A-1 and A-2 or in particular Ex.A-2 was in between the plaintiff and the defendant only. His reasoning totally conflicts with the evidence and circumstances in the case as detailed above. The surmise that under any circumstances the pronote would not have come into existence will not appeal to reason. Here is a simple transaction between two persons known to each other and who wanted to oblige each other. In such a situation, only a chit like Ex.A-2 came into existence to make a record of the transaction and to enforce if need be, as in the present case. The only question which the learned Subordinate Judge ought to have examined was whether Exs.A-1 and A-2 created any legal relationship or contractual relationship between the parties called 'vinculum juris' for the purpose of legal enforcement or whether the defendant and D.W.2 in such a capacity were jointly and severally liable to pay the amount to the plaintiff. The learned Subordinate Judge has not at all examined these aspects. The learned advocates appearing for both sides also feel that such an important legal position is not at all examined by the learned Subordinate Judge who has put the matter in a suspended animation not to result in finality in the litigation. Therefore, there is a serious omission on the part of the learned Subordinate Judge in coming to the conclusion and thereby the final decision in the suit appears to have been not correctly and properly rendered so as to affect full and complete justice to the parties.
10. The defendant has taken a plea that the suit loan has been discharged by D.W.2 by selling his lands and paying the amount to the plaintiff. Both the defendant and D.W.2 came out with such version in their evidence also. However, the learned Subordinate Judge did not believe such a theory in due regard to several circumstances emanated from the evidence of the case. Notwithstanding such evidence before the Court and the inferences which are permissible from such evidence, the Court in such a situation was very much obliged to seriously examine whether the loan was discharged by D.W.2 either on his own account or on account of the defendant or to the knowledge of both the plaintiff and the defendant. There is a serious omission to consider such an aspect which leads to probe into the matter in the right perspective so as to render finality in the matter. It is true that the learned Subordinate has given number of reasons as to how the plea of the defendant muchless the theory of D.W.2 could not be accepted in such a situation. But this Court having examined the evidence and the circumstances stated above, feels that the reasons given by the learned Subordinate Judge cannot be supported.
11. In such a situation, this Court examines the position if D.W.2 was before the Court, either as a necessary or proper party. It is fundamental that the Courts can render justice to bind the parties to the suit or the persons legally claiming through them. Notwithstanding the clear evidence of the defendant and the stand of D.W.2 and notwithstanding the findings of the learned Subordinate Judge as above, the decree against the defendant cannot bind D.W.2, although D.W.2 himself has undertaken the liability to discharge the debt. In the normal circumstances, the decree should be in favour of the defendant and muchless against D.W.2. If the legal implications flowing therefrom, from the manner in which the defendant acted and D.W.2 reacted, would have raised a serious question whether the defendant and D.W.2 were jointly and severally liable to pay the suit debt and if there was such a debt, the plaintiff really would have chosen either to enforce the decree against both or against one of them. That is how the absence of D.W.2 before the Court has affected the final result in the suit.
12. Then comes the question whether D.W.2 would be a necessary party whom the plaintiff ought to have impleaded in the circumstances. Order 1 Rule 1 CPC reads as follows:
'All persons may be joined in one suit as plaintiffs where -
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law or fact would arise.
In its true implication, the plaintiff was bound to implead D.W.2 if either he had the knowledge when he filed the suit or he got the confirmed knowledge thereafter that in the nature of the suit transaction both the defendant and D.W.2 would have been either jointly and severally liable to pay the suit amount. He has not done it so far. The plaintiff has not expressed any thing at any stage that he can get the relief or redressal even without impleading D.W.2 or the defendant and D.W.2. The plaintiff and D.W.2 being close relatives, a serious element of interest or collusion in each other cannot be over-looked. The learned Advocate for the appellant-defendant has seriously raised such a doubt that D.W.2 is not made a party so as to defeat the interests of the defendant in the suit, thereby the plaintiff obliging his relative D.W.2 by not enforcing the suit transaction against him. Then comes the real and true implication of Order 1 Rule 9 CPC, which may be totally repeated for convenience. To read thus:
'No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
(Provided that nothing in this rule shall apply to non-joinder of a necessary party)'
In the normal circumstances, the law has to protect the interests of the plaintiff that the suit will not be defeated by reason of mis-joinder or non-joinder of the parties and the adjudication of rights and interests in the suit will bind the parties or it can be rendered as between the parties. The proviso added by the, Amendment Act of 1976 has made it mandatory that nothing in the said rule shall apply to non-joinder of a necessary party. If D.W.2 is a necessary party as stated above, even if a judgment is rendered in the suit to benefit or not to benefit the parties, it will not be as against D.W.2 nor in favour of the plaintiff to get his remedy from the proper party. Therefore, in that sense of the matter, D.W.2 ought to have been impleaded as a party so as to bind him with the decree and so as to enable the plaintiff to get back the money either from one of them or from both of them. In such a situation it is absolutely necessary for the Court to examine the legal implication of the same. No such application of mind appears to have been made by the learned Subordinate Judge.
13. The learned Advocate for the respondent-plaintiff took time on the last occasion to contact his party and to examine whether he would be advised to make an application to bring D.W.2 on record as a party. Today he has submitted that he was unable to do it and he has left the matter to the Court to render full justice. This Court after having examined the legal implications as above, feels that the plaintiff may not get his remedy in this suit unless D.W.2 is impleaded as a party. The learned Advocate for the appellant-defendant has fairly submitted that in such a situation, the Court may exercise its discretionary powers to examine whether D.W.2 could be impleaded as a party even at this stage, so that the party will be able to relieve of his so called liability under the said transaction and so that the plaintiff may sue the real party. Apart from that, we can examine the legal position in this regard. Order 1 Rule 10 (1) & (2) CPC reads;
'(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
Court may strike out or add parties (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.'
Order 1 Rule 10 (1) is silent whether any application is necessary to get such a relief. However, it appears from a reading of the provision that it is for the Court at any stage under the circumstances to pass such order. Even then no application or motion is needed by the parties for the Court to enable it to pass any such order. On the other hand, sub-clause (sic. sub-rule) (2) of Order 1, Rule 10 is very emphatic that the Court either upon or without the application of either party may pass such an order either impleading the party or striking the name of the plaintiff or defendant etc., in the circumstances enumerated therein. It is true that it is for the parties normally to exhaust their remedies and it is not for the Court to evince any (sic) interest to maintain the objectivity in the matter. But the true intention of the legislature appears to be that where the parties failed to do it either due to ignorance or due to any other reason, it is for the Court to exercise its discretion under the said provision, so as to render full justice to the parties without expressing anything as to why it has not been done either by the parties or by the learned Advocates as well. Now having examined the matter above, this Court feels that an order under Order 1 Rule 10(2) may be passed so as to implead D.W-2 as one of the defendants. Even a reading of the evidence of D.W.2 in its correct perspective brings out the truth that D.W.2 has acted fairly and has whole hearedly come forward to take the liability in regard to the suit debt inasmuch as to pay it, but has pleaded that he has discharged it. This Court has no inhibitions, reservations or limitations to accept the evidence of D.W.2. This is one of the circumstances to invoke the powers of the C.P.C. Added to this, the learned Advocate for the appellant - defendant has also approved such a measure, as already stated, and therefore, this Court feels that D.W.2 should be impleaded as defendant No. 2 in the suit. This view is amply supported by a Division Bench Judgment of this Court in Khaja Abdul Khader v. Mahabub Saheb, 1979 (2) An.W.R. 277 wherein it was held as follows:
'The crucial test for the addition or otherwise of a particular party as defendant or plaintiff is whether the, presence of such party is necessary or atleast proper without whom there can be no effective and final adjudication of all issues involved in the suit with regard to the same subject-matter. The intendment and object of the provision as could be gathered from the language used therein appears to us to adopt a liberal construction to enable the Court to determine all the questions relating to the subject-matter of the suit arising not only between the parties to the suit but once and for all in the presence of all those parties whose presence is necessary or proper for an effective and final adjudication.'
14. Then comes the question whether the period of limitation would be affected under the provisions of the Limitation Act, for the plaintiff so as to reap the benefit of impleading D.W.2 as one of the parties to the suit sub-section (1) of Section 21 of the Act reads as follows:
'21 (1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:
Provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date'.
Therefore, the law makes it mandatory that the period of limitation insofar as D.W.2 would commence from the day he is impleaded as a party to the suit. The above provision makes it clear that the Court has power to make the suit as if it was instituted on an earlier date including the impleaded party, mother words, if the Court is satisfied that the omission to include the plaintiff or defendant was due to a mistake made in good faith, it may issue such directions. That may pose a serious question whether the circumstances would demonstrate that non-impleading of D.W.2 as a party by the plaintiff was due to a mistake made in good faith and that such a benefit could be given to the plaintiff in the case. The learned Advocate for the appellant-defendant has fairly submitted that under the circumstances of the case and in view of the conduct of the parties including D.W.2, such a benefit may be given that non- impleading of D.W.2 to the suit was due to a bona fide mistake. In the nature of Exs.A-1 and A-2, perhaps the plaintiff might have thought that it would be sufficient if the defendant alone is made a party to the suit to get back his money. No mala fides or bad faith are canvassed against the plaintiff in this regard. Therefore, this Court is satisfied that D.W.2 was not impleaded as a party to the suit due to a mistake made in good faith. Therefore, it is directed that the impleading of D.W-2 as defendant No. 2 shall be deemed to be from the date of the suit. In other words, the total effect and benefit of proviso to sub-section (1) of Section 21 is given to the plaintiff in the suit so far as to implead D.W.2 as defendant No. 2 in the suit is concerned.
15. Having held that D.W.2 has to be impleaded as Defendant No. 2 in the suit, the whole matter opens up for reconsideration both on the materials already on record and the materials which may be produced by both the parties during further trial so as to examine the legal implication and to dispose of the matter in the light of. the observations made above. When D;W.2 is impleaded as a party, he will be given an opportunity for filing his written statement. Then the plaintiff and the 1st defendant will be entitled to file their rejoinder or reply. All the parties to the suit thereafter will be given an opportunity to adduce further evidence.
16. In the result, the appeal is allowed. The judgment and decree passed by the learned Subordinate Judge are set aside. The matter is remitted back to the file of Subordinate Judge, Vijayawada for fresh disposal according to law in the light of the observations made above.
17. The observations made above in regard to the impleading of D.W.2 as defendant No. 2 and the opportunity to be given to the parties shall be categorically incorporated in the judgment and decree. Having regard to the facts and circumstances stated above, both the parties are directed to bear their respective costs in this appeal.
18. In regard to the costs of the trial Court, it shall be decided at the stage of final disposal of the suit.
19. The learned Advocate for the appellant-defendant prays for refund of the Court fee. Office shall examine the relevant Rules and the particular provision in this regard and shall refund the Court fee to the appellant to the extent permissible thereunder.