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Supreme Court of India
Il And Fs Engineering And … vs M/S Bhargavarama Constructions on 16 December, 2021Author: M.R. Shah

Bench: M.R. Shah, Sanjiv Khanna

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7639 OF 2021

IL and FS Engineering and
Constructions Company Ltd. …Appellant(s)

Versus

M/s. Bhargavarama Constructions & Ors. …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 11.09.2017 passed by the High Court of Judicature at

Hyderabad for the State of Telangana and the State of Andhra Pradesh

passed in CCCA No.99 of 2017 by which the High Court has allowed the

said appeal and has quashed and set aside the judgment and decree

passed by the trial court and has remanded the matter to the trial court,

the original plaintiff has preferred the present appeal.

2. That the appellant herein – original plaintiff filed a suit for recovery

of Rs.47,90,088/-, along with interest of 18% from the respondent Nos. 1

and 2 herein original defendants. The said suit came to be decreed by
Signature Not Verified

Digitally signed by R
Natarajan
Date: 2021.12.16
16:40:29 IST
Reason:

the trial court. The judgment and decree passed by the trial court came

to be challenged by the original defendants – respondent Nos. 1 and 2
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before the High Court by way of CCCA No. 99 of 2017. In the said

appeal, respondent Nos. 1 and 2 herein – original defendants moved a

miscellaneous application seeking impleadment of A.P. Transco and

MAYTAS Infra Pvt. Ltd. as party respondents to the first appeal on the

ground that the subject work, which was given to the defendant No.1 by

the appellant, was originally given by A.P. Transco to the appellant. The

High Court by the impugned order without assigning any reasons as to

why the proposed respondents have to 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 and decree 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.

3. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, the original plaintiff has preferred

the present appeal.

4. We have heard the learned Advocates appearing for the respective

parties at length.

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5. We have gone through the impugned order passed by the High

Court. By the impugned judgment and order, the High Court has set

aside the judgment and decree passed by the trial court, which was in

favour of the appellant herein – original plaintiff, solely on the ground that

the application for impleadment filed by the respondent Nos. 1 and 2 –

original defendants –appellants before the High Court to implead A.P.

Transco has been allowed and, therefore, the judgment and decree is

set aside. This is not the manner in which the High Court was required

to deal with the first appeal arising out of the judgment and decree

passed by the trial court. 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 High Court has

not only directed to implead the A.P. Transco as party to the appeal but

has also directed to implead the A.P. Transco in the original suit also. It

is required to be noted that as such the suit was filed by the 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 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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6. 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. We strongly disapprove the

manner in which the High Court has disposed of the 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, Civil Appeal Nos.6014-6015 of 2021 decided on 04.10.2021

“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.”

7. In view of the above discussion and for the reasons stated above,

the present appeal is allowed. We set aside the order passed by the

High Court in CCCAMP No.246 of 2017 impleading the A.P. Transco as

party to the appeal as well as to the original suit. Consequently, we also
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set aside the impugned judgment and order passed by the High Court

quashing and setting aside the judgment and decree passed by the trial

court. We remand the matter to the High Court to decide and dispose of

the CCCAMP No. 246 of 2017 and the first appeal in accordance with

law and on its own merits. While deciding the CCCAMP No.246 of 2017

filed by the original appellants – respondent Nos. 1 and 2 herein –

original defendants to implead the A.P. Transco in the appeal as well as

the original suit. The High Court shall consider whether such an

application in the appeal preferred by the original defendants would be

maintainable or not and if so under which provision of Code of Civil

Procedure it would be maintainable.

Present Appeal is Allowed accordingly with exemplary cost, which

is quantified at Rs.25,000/- to be deposited by respondent Nos. 1 and 2

herein with the State Legal Services Authority of the concerned High

Court within a period of four weeks from today.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J.
DECEMBER 16, 2021. [B.V. NAGARATHNA]

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