IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.305 of 2008 MD. WASIM @ MD. WAIM Versus PEYARELAL CHOUDHARY & ORS ----------- 2 26/9/2008 Heard counsel for the parties. In the opinion of this Court, the approach of the court below is absolutely against the provisions of Order XLI Rule 20 of the Code of Civil Procedure which reads as follows:- “Power to adjourn hearing and direct persons appearing interested to be made respondents:- (1) Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent. (2) 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.” That being so, the appellate court only gets power to implead a person party to the suit who was originally a party in the court below in title suit if it is of the view that presence of such party will be necessary to decide the appeal. In the present case omitted defendant in the memo of appeal had neither filed written 2 statement nor had contested the suit and therefore there was no material for the court below to record its satisfaction that their presence was necessary for the disposal of the appeal. That being so, it would appear to this Court that the court below only by way of shirking of its duty and responsibility in disposing of the appeal had passed the impugned after the arguments in the appeal was completed and it was fixed for delivery of judgment. That being so, this Court would not find any justification in the impugned order which on the fact of it is vitiated by an apparent jurisdictional error. Accordingly, the impugned order is set aside and the Civil Revision Application is disposed of with a direction to the lower appellate Court in seisin of the appeal, to dispose of the appeal of the year 1999 within a period of six months from the date of receipt/production of a copy of this order. ( Mihir Kumar Jha, J.) Abhay