1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER
: S.B.CIVIL FIRs.APPEAL NO.174/2005 LRs of late Shri Annda Ram versus Shri Munnalal & ORS.Date of Order :: 21st May, 2014 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.M.C.Bhoot, Senior Advocate assisted by Mr.Surendra Singh, for the appellants.
Mr.Jagdish Vyas ) for the respondents.
Mr.S.N.Bhatt ) Mr.Sushant Daga for ) Mr.Ramit Mehta ) ---- Two applications (I.A.No.5242/2013 and I.A.No.6149/2013) under Order I, Rule 10(2) read with Section 151 CPC have been filed by the appellants seeking impleadment of (i) Shri Chain Singh S/o Late Shri Babu Lal Gehlot and (ii) Smt.
Asha Mukul Agrawal W/o Shri Mukul Mahavir Agrawal as party respondents in the fiRs.appeal.
It is, inter alia, indicated in the application that late Shri Annda Ram filed an original civil suit on 14.08.2000 for cancellation of the sale deed dated 30.05.1990 executed by the respondent No.1 in favour of the respondent Nos.2 to 50; during pendency of the suit Shri Annda Ram expired and his legal representatives were taken on record; the suit was dismissed by the judgment and decree dated 28.04.2005 and 2 the present fiRs.appeal is pending final hearing; it is further indicated that respondent No.44 Shri J.T.Bopat S/o Shri Shriram sold the plot Nos.107 and 108 to Smt.
Puni Bai and plot Nos.106 and 109 to Smt.
Seema Gehlot W/o Shri Chain Singh; Smt.
Puni Bai on the basis of the sale deeds applied for conversion of the land as Abadi and got Patta of the plot Nos.107 and 108; however, on appellants' interjection Smt.
Seema Gehlot could not get the Patta; Smt.
Puni Bai expired in August, 2012 and her son Shri Chain Singh on the basis of Will, executed by Smt.
Puni Bai, wanted to transfer the plot Nos.107 and 108 to one Shri Mukul Mahavir Agrawal and plot Nos.106 and 109 as husband of Smt.
Seema Gehlot to said Shri Mukul Mahavir Agrawal and, in this regard, a notice seeking objections was published in the newspaper, which was replied by the counsel of the appellants, to which, a further reply was given by counsel for Shri Mukul Mahavir Agrawal; it is alleged in the application that inspite of the notice and the fact that Shri Chain Singh is well aware of the present litigation and the status quo order passed by this Court from the very beginning being nephew of the appellant No.1, he started raising construction on plot Nos.106 and 109 and when he was told not to do so, on the pretext that since he is not a party in the appeal he is not bound by the interim order, refused to follow the same and, therefore, it is necessary to implead Shri Chain Singh as party; it is, inter alia, submitted that Shri Chain Singh is necessary and proper party in the present fiRs.appeal, otherwise, multiplicity of proceedings may arise and, therefore, in the interest of justice, he may be impleaded as a party.
3 A detailed reply has been filed on behalf of said Shri Chain Singh Gehlot opposing the applications; it is, inter alia, submitted that before filing the suit on 14.08.2000 it was well within the knowledge of the plaintiffs that late Smt.
Puni Bai, who was daughter of late Shri Annda Ram, had purchased plot Nos.106 and 109 through four registered sale deeds from defendant No.44 Shri J.T.Bopat, which sale deeds were registered on 17.04.1996, 15.11.1995, 22.02.1996 and 17.04.1996 respectively and, after purchasing these plots, Smt.
Puni Bai mother of non-applicant Shri Chain Singh covered the same by stone patties and also got electricity and water connections; it was well within the knowledge of late Shri Annda Ram that Smt.
Puni Bai was in possession of the aforesaid plots much prior to the date of filing of the suit and, despite such knowledge, Smt.
Puni Bai was not made a party to the suit and, therefore, the appellants cannot be permitted to implead Shri Chain Singh, who is legal heir of Smt.
Puni Bai, as party; in respect of plot Nos.107 and 108, which were converted and lease deeds were duly registered on 25.01.2003, the appellants were well aware about the fact of issuance of Patta in favour of Smt.
Puni Bai on 25.01.2003, however, no efforts were made by the appellants to implead Smt.
Puni Bai as party to the suit; it was further indicated that the non-applicant was not bound by any order passed in the appeal and was free to transfer the plots and, therefore, he has executed three separate registered sale deeds in favour of Smt.
Asha Mukul Agrawal on 25.10.2013 in respect of plot Nos.106, 108 and 109, which sale deeds were registered on 28.10.2013 and sale regarding one plot could not 4 be executed as the same was mortgaged with financial institution; however, possession of the four plots has already been handed over to the purchaser on 17.10.2013 at the time of agreement to sale; several averments relating to the conduct of the appellants and seeking to raise plea of estoppel have also been made, inter alia, indicating the instances where the appellants and/or other close relatives have purchased the plots from several of the transferees, who have been impeaded as party defendants in the suit; it is also alleged that plot Nos.106 to 109 are situated just in front of appellant No.1 Jugraj's house and appellants are well aware about the fact that Smt.
Puni Bai purchased these plots in the year 1995-96; it is further submitted that no explanation on behalf of the appellants as to why Smt.
Puni Bai was not made a party to the suit has been indicated; ultimately, it is submitted that the appellants cannot be permitted to implead the non-applicant as a party at such a belated stage without any proper explanation for not impleading his mother as a party to the suit, whereas, the fact of purchase of aforesaid plots was well within the knowledge of the appellants since beginning and much prior to the date of filing of the suit.
On filing of the said reply, the second application for impleadment of Smt.
Asha Mukul Agrawal, transferee from non- applicant Shri Chain Singh has been filed.
Notice was issued to Smt.
Asha Mukul Agrawal, who has appeared through the common counsel appearing for Chain Singh and Smt.
Asha Mukul Agrawal adopted the reply filed on behalf of the predecessor Shri Chain Singh.
5 Though no rejoinder to the reply has been filed by the appellants, an additional affidavit has been filed, inter alia, with the averments that appellants' father late Shri Annda Ram was a illiterate person and he was cheated by his younger son, so he challenged the action of his younger son by filing the present suit; since appellant No.1 Jugraj is only matriculate, as such, he was not aware of the fact that besides the purchaseRs.name in the sale deeds under challenge, his transferee may also be made as party and so they never disclosed the fact of purchase of disputed plots by Smt.
Puni Bai from the purchasers and non- impleadment of Smt.
Puni Bai was in good faith and not intentional; non-impleadment was due to illiteracy and ignorance about the law and due to a mistake made in good faith, in the interest of justice, indulgence may be granted in terms of proviso to Section 21 of the Limitation Act, 1963 ('the Act of 1963').It is submitted by learned counsel for the appellants that the appellants were not aware of the transfer made in favour of Smt.
Puni Bai and in any case her paramount title, which she derives from the sale in favour of Shri J.T.Bopat, is already under challenge and if a decree is passed in this appeal, the non-applicants would be affected and, therefore, their impleadment as necessary/proper party is in fitness of things and, therefore, the applications deserve to be allowed and further this Court needs to exercise powers under proviso to Section 21(1) of the Act of 1963 so as to deem the impleadment with effect from the date of filing of the suit.
Strongly opposing the submissions made by learned 6 counsel for the appellants, learned counsel for the respondents submitted that the application filed by the appellants is wholly baseless and in fact mala fide; the appellants were well aware of the fact of transfer in favour of Smt.
Puni Bai way back in the year 1995-96; the suit was filed in the year 2000, wherein, she was not impleaded as a party and whereafter when the conversion by the UIT took place in the year 2003, again despite being aware, no action was taken; the applications filed are highly belated and, therefore, the same deserve to be dismissed; it is submitted that not only from the date of filing of the present application, the suit itself against Smt.
Puni Bai was barred by limitation and, therefore, the applications cannot be entertained.
Reliance was placed on Ramprasad Dagaduram v.
Vijaykumar Motilal Hirakhanwala & ORS.: AIR1967SC278 Vidur Impex & Traders PVT.LTD.& Ors.v.Tosh Apartments PVT.LTD.& ORS.: (2012) 8 SCC384 Munshi Ram v.
NaRs.Ram & Anr.
: AIR1983SC271 Mumbai International Airport PVT.Ltd.v.Regency Convention Centre & Hotels PVT.LTD.& ORS.: 2010 (10) CCC295and Seenivasan v.
Peter Jabaraj & Anr.
: (2008) 12 SCC316 Learned counsel for the other respondents also opposed the prayer made by appellants in this regard and placed reliance on Naba Kumar Hazra & Anr.v.Radhashyam Mahish & ORS.: AIR1931Privy Council 229, Radhakrushna Choudhary v.
Radhakrushna Mohaprabhu & Anr.
: AIR1971Orissa 274 and Palacherla Anandu & Anr.v.Mallipudi Acharyulu & Anr.
: AIR1958Andhra Pradesh 743.
7 I have considered the rival submissions.
The provisions relevant for consideration of the present applications read as under:- “10.
Suit in name of wrong plaintiff.
- (1)...(2) Court may strike out or add parties.
- 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.
(3) ....(4) ....(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877).section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.”
.
Section 21(1) of the Act of 1963 reads as under:- “21.
Effect of substituting or adding new plaintiff or defendant – (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.
(2).......”
.
From the bare reading of the above provisions, it is apparent that the Court may at any stage of the proceedings, order 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, can be added.
However, subject to 8 provisions of the Act of 1963, the proceedings as against any person added as defendant is deemed to have begun only on the service of the summons.
The provisions of Section 21(1) of the Act of 1963 indicate a slight variation and provide that 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.
However, the proviso to Sub-section (1) of Section 21 of the Act of 1963 provides that where the Court is satisfied about 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.
In the present case, the dates are not in dispute.
The sale in favour of Shri J.T.Bopat was executed on 23.06.1990, Smt.
Puni Bai purchased the same from said Shri J.T.Bopat on 17.04.1996, 15.11.1995, 22.02.1996 and 17.04.1996 respectively and got two plots converted and the lease deeds were registered on 25.01.2003, whereafter due to death of Smt.
Puni Bai the plots vested in non-applicant Shri Chain Singh, who executed sale deeds in favour of Smt.
Asha Mukul Agrawal.
The non-applicant Shri Chain Singh in his reply has repeatedly made specific allegations against the appellants regarding their knowledge of the transfer in favour of Smt.
Puni Bai, their real sister and the appellants themselves have indicated about awareness of conversion proceedings, which took place in the year 2003 and the present application seeking 9 impleadment has been filed on 21.10.2013.
No rejoinder to the reply disputing the awareness about transfer in favour of Smt.
Puni Bai has been filed.
On the other hand, an additional affidavit has been filed indicating that late Shri Annda Ram and the appellants were not aware of the fact that besides the purchasers named in the sale deeds, transferees may also be made party and so the fact was not disclosed and the non- impleadment was in good faith and not intentional.
In view of the state of pleadings regarding the fact about the appellants' awareness about transfer in favour of Smt.
Puni Bai, it cannot be said that the present applications filed by the appellants are bona fide and the non-impleadment is in good faith.
The fact that appellants were aware about the transfer in favour of Smt.
Puni Bai and chose not to question the same either while filing the suit and/or during pendency of the suit, when at the time of conversion by the local authority they further became aware of her status qua the said plots and filed the applications in the present appeal after passage of almost 19 years and 10 years respectively from the date of transfer in favour of Smt.
Puni Bai and conversion in her favour respectively cannot be said to be bona fide and the applications filed by the appellants are highly belated.
Hon'ble Supreme Court in the case of Mumbai International Airport (supra) while dealing with the discretion with the Court under Order I, Rule 10(2) CPC, inter alia, gave the following illustration:- “12.1) If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him 10 having regard to the provisions of Rules 9 and 10(2) of Order I.
If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party.”
.
Further, Hon'ble Supreme Court in the case of Vidur Impex (supra) upheld declining of prayer for impleadment as party on account of delay of seven years and held that the same constituted a valid ground.
So far as the prayer made by the appellants in terms of proviso to Sub-section (1) of Section 21 of the Act of 1963 is concerned, in view of the foregoing discussion regarding the fact that the appellants were well aware of the transfer in favour of Smt.
Puni Bai at the time of transfer and further again when the conversion issues arose in the year 2003 during the pendency of the suit, the plea about illiteracy etc.when the appellants were already under active legal advise cannot be countenanced and the non-impleadment cannot be said to be mistake made in good faith.
In view of the above discussion, the applications filed by the appellants have no substance and the same are, therefore, dismissed.
(ARUN BHANSALI).J.
A.K.Chouhan/-