IL AND FS ENGINEERING AND CONSTRUCTIONS COMPANY LTD. versus M/S. BHARGAVARAMA CONSTRUCTIONS & ORS.

Citation: [2021] 9 S.C.R. 484 · Decided: 16-12-2021 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 9 S.C.R.
   [2021] 9 S.C.R. 484
484
IL AND FS ENGINEERING AND CONSTRUCTIONS
COMPANY LTD.
v.
M/S. BHARGAVARAMA CONSTRUCTIONS & ORS.
(Civil Appeal No. 7639 of 2021)
DECEMBER 16, 2021
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Code of Civil Procedure, 1908: s.96 and Or.XLI r.31 – Suit
for recovery filed by appellant-original plaintiff against respondent
no.1 and 2-original defendants – Trial court decreed the suit –
Respondent no.1 and 2-original defendants filed appeal before High
Court – In the said appeal, respondent no.1 and 2-original
defendants filed a miscellaneous application seeking impleadment
of AP Transco as party respondents to the first appeal – High Court
without assigning any reasons as to why the proposed respondents
should be impleaded in the first appeal, allowed the said application
and directed to implead A.P. Transco as party to the appeal as well
as to the original suit – Not only that, while allowing the said
application for impleadment, thereafter, without further entering
into the merits and/or expressing anything on merits and solely on
the ground that as the application for impleadment was allowed,
the High Court set aside the judgment passed by the trial court and
remanded the matter to the trial court with a direction to the trial
court to decide the suit afresh after affording an opportunity to the
impleaded party to lead evidence in the suit – On appeal, held: This
is not the manner in which the High Court should deal with the first
appeal arising out of the judgment and decree passed by the trial
court – Nothing was observed and/or decided on merits – Even no
reasoning was given why A.P. Transco was required to be impleaded
as a party to the appeal – High Court not only directed to implead
the A.P. Transco as party to the appeal but has also directed to
implead A.P. Transco in the original suit also – The suit was filed by
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 non-joinder of parties – Therefore, as such whether
in the appeal preferred by the original defendants against the
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485
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 –
Order of High Court set aside and matter remitted to High Court to
decide the impleadment application and first appeal in accordance
with 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 on
merits. Even no reasoning has been given why the A.P. Transco
was required to be impleaded as a party to the appeal. The plaintiff
is the dominus litis. No issue was raised before the trial court on
non-joinder 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.
[Para 5][487-F-H]
2. Even otherwise, assuming that the application to implead
the A.P. Transco as a party to the appeal on an application filed by
the respondent Nos.1 and 2 - original defendants was maintainable
and was to be allowed is not discussed. 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. How to deal with and decide a first appeal under Section
96 and Order XLI Rule 31 of the CPC has been dealt with by this
Court in a catena of decisions. As observed and held by this Court
in the case of K. Karuppuraj vs. M. Ganesan “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 determination
as provided under Order XLI Rule 31 CPC.” The order passed
by the High Court impleading A.P. Transco as party to the appeal
as well as to the original suit is set aside. Consequently, impugned
IL AND FS ENGINEERING AND CONSTRUCTIONS COM. LTD. v

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