Jaswant Vs. the Financial Commissioner and Others - Court Judgment

Excerpt:

.....b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable..........thus (at page 184):'whether an amendment of this type is made under the cover of o. 1,r.10(2) pf the code or in exercise of powers vested in the court under s. 153 would not in my opinion, make any material difference as the course to be adopted in either of the two cases would be the same and the relief to be granted would also not differ in any material particulars. what can be done in a case of this type is to strike out the name of the dead person which cannot possibly remain in the array of parties and if the law permits to substitute for the name of such dead person the name of any other person who is found to be the proper party to the suit in place of the dead person, whether it is done under o. 1, r. 10 which certainly appears to provide for such an eventuality or done under s. 153 which obviously covers such a situation, is of mere academic interest and need not detain us further.'6. the application filed under o. 1, r. 10 of the civil p.c, is, thus, competent. however, even if the matter falls within the provisions as contained in o. 22, r. 4 of thecivil p.c, the same in the facts and circumstances of the case would not make any difference because we have already.....

Judgment:

ORDER

V.K. Bali, J.

1. This order will dispose of Civil Miscellaneous No. 2454 of 1992 in Civil Writ Petition No. 13804 of 91 and Civil Miscellaneous No. 2457 of 1992 in Civil Writ Petition No. 13806 of 1991 as common questions of fact are involved in both the applications. The facts, however, have been extracted from Civil Misc. No. 2454 of 1992.

2. The petitioner in the main Writ Petition seeks quashing of the orders dt. Nov. 16, 1979, Mar. 3, 1981, Mar. 24, 1989 and Aug. 30, 1990 which have been passed by Assistant Collector 1st Grade Collector, Commissioner and the Financial Commissioner respectively vide which application of Ladhu Ram and Kansi Ram sons of Mam Raj for purchase of land of the petitioner who is stated to be a big land owner was allowed under the provisions of Punjab Security of Land Tenures Act, 1953: It is during the pendency of the Writ Petition challenging the orders aforesaid that the present application under 0.1, R. 10 of the Civil P.C, has been filed so as to implead Dalip Singh, Bhup Singh, Mahabir and Ram Chander sons of Kansi Ram as also Sruji Devi widow of Kansi Ram as also Simla, Parvati and Leela Wati daughters of Kansi Ram as party (respondents) to the Writ Petition. Inthe other Civil Miscellaneous, also, the prayer is to implead the same very persons as respondents. The case of the petitioner-applicant is that the legal representatives of Kansi Ram could not be brought on record earlier as their names did not appear in the copy of the order passed by the Financial Commissioner and as such the mistake was inadvertent and bona fide.

3. The applications have been hotly contested by respondents Nos. 5 to 8. By way of preliminary objection, it is stated that application for such a relief i.e, to add legal representatives of a person who had died prior to the institution of the Writ Petition is not permissible under O. 1, R. 10 of the Civil P.C, and that appropriate provision for bringing on record the legal representatives in 0. 22, R. 4 of the Civil P.C. It is stated that resort has not been made to 0.22 R. 4 of the Civil P.C, as the applicant knew it fully well that the same would be successfully contested on the plea of limitation. It is further stated that the purchase application was jointly filed by Ladhu Ram, since deceased, the father of answering respondents as also Kansi Ram deceased and that it is the joint order which has been challenged before the Collector, Commissioner and the Financial Commissioner as also this Court and inasmuch as the petition filed in this Court as against the heirs of Kansi Ram is a nullity, the same also cannot proceed against the contesting respondents. On merits, it has been pleaded that although the counsel for the answering respondents had brought the factum of death of Kansi Ram to the notice of this Court on Nov. 12, 1991 yet the application was filed after Feb. 27,1992 and that too by seeking an adjournment. It is also stated that the petitioner-applicant was well aware of the death of Kansi Ram having occurred during the pendency of the revision petition before the Commissioner as not only respondent No. 2 but the applicant himself had moved an application on July 25,1984 for permission to implead one of the sons of Kansi Ram as a party before the said Court. The obvious prayer of the respondents is to dismiss the application.

4. After hearing the learned counsel for the parties, we are of the view that in preparing the memo of parties by filing the present Writ Petition, a bona fide mistake has been made by the one who drafted the petition for filing in this Court as it is apparent from the order passed by the Financial Commissioner that even though the name of Kansi Rum was substituted by one of his sons namely Dalip Singh as is the case of the respondents themselves, yet in the array of parties as reflected in the order of Financial Commissioner, the name of Kansi Ram who had died since long finds mention. It is true that Kansi Ram died way back in the year 1983 and this fact was known to the applicant as he himself made an application for substituting his name with one of his legal representatives before the Commissioner. It is, however a matter of common knowledge that while preparing memo of parties, the names are picked up from the array of parties as shown in the orders that are to be impugned. We, by no means, want to hold that such a practice should be invariably adopted and no effort should be made to ascertain the latest position but the question for determination is as to whether it can come under the protection of bona fide mistake or not. It can certainly be termed as an act of carelessness but the same is not of the type which should result in refusing the relief and denying a citizen decision on merits which is a guaranteed right, be it a statutory appeal or writ under Art. 226 of the Constitution of India. Once the mistake made by one who drafted the petition is held to be a bona fide mistake then immediately proviso to S. 21(1) of Limitation Act 1963 would come into play. Section 21 runs as follows: --

(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) Nothing in sub-sec. (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.'

5. In the light of what has been stated above, the contention of learned counsel for the respondents that an application for impleading legal representatives of a person who had died prior to the institution of the Writ Petition would not be competent under O. 1,R. 10 of the Civil P.C, and that such an application being permissible only under 0.22, R. 4 of the Civil P.C, will be barred by time would have no substance. The learned counsel for his afore stated contention has relied upon 'Joginder Singh v. Krishan Lal, AIR 1977 Punjab and Haryana 180, but in our view the judgment rendered by R.S. Narula, the then Chief Justice in the aforesaid report does not support the case of the respondents. On the precise question that has been raised before us, the Chief Justice held thus (at page 184):

'Whether an amendment of this type is made under the cover of O. 1,R.10(2) pf the Code or in exercise of powers vested in the Court under S. 153 would not in my opinion, make any material difference as the course to be adopted in either of the two cases would be the same and the relief to be granted would also not differ in any material particulars. What can be done in a case of this type is to strike out the name of the dead person which cannot possibly remain in the array of parties and if the law permits to substitute for the name of such dead person the name of any other person who is found to be the proper party to the suit in place of the dead person, whether it is done under O. 1, R. 10 which certainly appears to provide for such an eventuality or done under S. 153 which obviously covers such a situation, is of mere academic interest and need not detain us further.'

6. The application filed under O. 1, R. 10 of the Civil P.C, is, thus, competent. However, even if the matter falls within the provisions as contained in O. 22, R. 4 of theCivil P.C, the same in the facts and circumstances of the case would not make any difference because we have already held that the mistake so as not to implead the legal representatives of Kansi Ram was on account of bona fide mistake and if that be so then proviso to S. 21(1) of the Limitation Act would be attracted. The Apex Court in 'Ramprasad Dagaduram v. Vijay Kumar Motilal, AIR 1967 SC 278, observed as follows (at page 284):

'The Court has power to add a new plaintiff at any stage of the suit, and in the absence of a statutory provision like S. 22 the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted. But the policy of S. 22 is to prevent this result, and the effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party, see Ramsebuk v. Ramlal Koondoo, (1881) ILR 6 Cal 815. The rigour of this law has been mitigated by the provision to S. 21(1) of the Indian Limitation Act, 1963, which enables the Court on being satisfied that the omission to include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.'

7. Before parting with this order, we would, however, observe that carelessness that has been indulged while drafting the petition should not be totally excused particularly when Kansi Ram died way back in the year 1983 and this fact was in the notice of the applicant at least in 1984 as he himself made an application for impleading one of the legal representatives of Kansi Ram as party (respondent) before the Commissioner. The carelessness has resulted into unnecessarily prolonging the case which is an obvious harassment to an adversary. The applications are, thus, allowed subject to payment of Rs. 300/- as costs in each case. The case would now come up for motion hearing on 20-7-1992.

8. Applications allowed.