S.M. Iqbal Vs. Firdous Ahmad Shah and ors. - Court Judgment

S.N. Jha, C.J.

1. The dispute in this civil revision relates to impleadment of party. By the order impugned, at the instance of the plaintiff-respondent, the petitioner has been added as defendant. He has moved this Court for setting aside the order.

2. To appreciate the controversy, the factual background of the case may briefly be stated. On 16th April, 1981 Srinagar Municipality (also known as Srinagar Municipal Committee) allotted a shop to the plaintiff, Firdous Ahmad Shah, (hereinafter referred to as respondent). Soon after, on the ground of violations of the terms of allotment, on 21st April, 1981 the allotment was cancelled. On 6th May, 1981 respondent filed suit for perpetual injunction against the Municipality and obtained order of statusquo. Complaining that despite the statusquo order the shop was demolished and the goods were taken away, the respondent filed application for contempt against the Municipality and its Executive Officer. On 22nd May, 1981, he filed application for recovery of the goods and debris of the shop. On 18th April, 1983 the respondent, with leave of the court, filed amended plaint seeking relief of mandatory injunction and compensation for the loss of goods and demolition of the shop. On 16th April, 1984, he filed another application seeking return of the goods from Srinagar Municipality/Development Authority which had been impleaded as a party defendant in the amended plaint. On 16th August, 1984 the Municipality took a stand that it had no knowledge about the goods. The respondent contested the stand of the Municipality and produced certain documents in support of his case. On 19th November, 1988 he filed application seeking direction to the petitioner for return of the goods alleging that it was he who had taken away the goods after demolition of the shop. It may he mentioned that the petitioner at the relevant time was holding the post of Collector under Srinagar Municipality. On 13th March, 1989, the court passed an order to that effect. The petitioner challenged the order in this Court in civil revision No. 29/1989 which was dismissed as not maintainable on 18th August, 1989. Application seeking review of the said order was rejected on 23rd October, 1989. The petitioner, thereafter, moved the Supreme Court in SLP (civil) No. 13455 of 1989 which was dismissed on 17th July, 1990, observing that the petitioner may pursue such remedy as available to him in law in the appropriate court. The petitioner, thereafter, filed appeal against the aforesaid order dated 13th March, 1989 alongwith application for condonation of delay as the appeal had become time barred by then. On 18th February, 1993 the condonation application was rejected by the District Judge, Srinagar. The petitioner approached this Court in civil revision No. 8/1993 which was dismissed on 5th July, 1994. The petitioner again moved the Supreme Court in SLP(Civil) No. 21243-44 of 1994 which was disposed of on 27th July, 1995 with certain observations. I shall refer to the said observations later at the appropriate place in this judgment. On 16th December, 1995 the respondent filed application for impleadment of the petitioner which was allowed by order date 5th July, 1997 -- giving rise to this revision.

3. Mr. Z.A. Shah, learned counsel for the petitioner, submitted that the suit was initially filed against the municipality for mandatory injunction in the wake of the apprehended demolition of the shop, and even as per the amended plaint, the respondent sought the relief of mandatory injunction to restore the demolished shop alongwith the site, and the stocks in trade comprising of cosmetics and hosiery articles. No relief was sought against the petitioner and he was no made party. In the light of the stand of the Municipality/ Srinagar Development Authority on an interlocutory application filed by the respondent, order was passed directing the petitioner to return the goods allegedly taken away by him after demolition of the shop; even though he was not party to the proceedings. He was, in fact, cited as a witness in support of the application seeking recovery of goods from the Municipality/Development Authority. This Court dismissed the civil revision against the said order on a technical ground that the revision was not maintainable. Though the Supreme Court at that stage declined to interfere and dismissed the SLP, in the second SLP preferred by the petitioner the Supreme Court vide order dated 27th July, 1995 observed that 'this is a proper case where the order impugned herein and the proceedings concerning it are stayed pending disposal of the suit' and thus protected the interest of the petitioner. The application for impleadment of the petitioner at this stage was not only mala fide but also time barred as in view of the provisions of Sub-rule (5) of Rule 10 of Order I of the Code of Civil Procedure read with Section 22 of the Jammu and Kashmir Limitation Act, a person cannot be added as party to the suit beyond the period of limitation, and the suit is deemed to have been instituted against him from the date he is added as party to the suit. Mr. Shah submitted that in any view of the matter, the petitioner is neither a necessary party nor a proper party to warrant his impleadment in terms of Order I Rule 10(2) of the Code. In support of the submission, he placed reliance on Ramprasad Dagaduram v. Vijaykumar Motilal Hirakhanwala, AIR 1967 SC 278.

4. Mr. R.A. Jan, learned counsel for the respondent, submitted that for a complete and final adjudication of the controversy involved in the suit, the impleadment of the petitioner is necessary and in accordance with Order I Rule 10(2) of the Code. According to the counsel, this would also avoid multiplicity of suits. As regards the question of limitation, he submitted that the plea can be taken as defence in the suit. He relied on decisions in Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar, AIR 1963 SC 786, Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336 and Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (1992)2 SCC 524.

5. Mr. B.A. Dar and Mr. G. J. Balla appearing for Srinagar Municipality and Srinagar Development Authority respectively supported the stand of Mr. Jan.

6. The provisions relating to 'parties to suits' are contained in Order I of the Code of Civil Procedure. Rule 3 provides that more than one person may be joined in one person may be joined in one suit as defendants where.--

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and

(b) if separate suits were brought against such persons, any question of law or fact would arise.

Sub-rule (2) of Rule 10 provides for striking out or addition of parties. Being material for disposal of this revision, it would be appropriate to quote the provision in extenso as under:

'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 at 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 been necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.'

7. As the instant case relates to addition of parties, we are not concerned with the first part which deals with striking of the names of unnecessary parties. The second part, as would appear from a plain reading, refers to necessary parties and proper parties.

8. Before I deal with the question of limitation, which was the thrust of argument of Mr. Shah, I will consider the question as to whether the petitioner can be added either as a necessary party or a proper party under Order I Rule 10(2) of the Code. As succinctly stated in Udit Narain Singh Malpaharia v. Additional member Board of Revenue, Bihar (supra) necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in proceedings'. This was reiterated in Ramesh Hirackand Kundanmal v. Municipal Corporation of Greater Bombay (supra). Thus a person can be added in terms of Order I Rule 10(2) of the Code if he is either a necessary party or a proper party.

9. Mr. Shah tried to make capital out of order of the Supreme Court dated 27th July, 1995. The order undoubtedly came to the rescue of the petitioner as it put the order of the court below dated 13th March, 1989 (supra) directing the petitioner to return the goods in abeyance till disposal of the suit. This, indeed, came as a great reprieve to him. However, in the present context, instead of lending help, the order, taken to its logical conclusion, reflects the desirability of impleadment of the petitioner in the pending suit. The order runs as under:

'Having heard the counsel or the appellant and Mr. R. A. Jan counsel for the respondents, we are of the opinion that this is a proper case where the order impugned herein and the proceedings concerning it are stayed pending disposal of the suit. The suit may be tried and disposed of in accordance with law.'

10. As seen above, the order impugned in the SLP was an order by which this Court had declined to interfere with order dated 13th March, 1989. The words 'and the proceedings concerning it' clearly refer to the proceedings initiated against the petitioner on an interlocutory application for recovery of goods from him. That was also the submission of Mr. Z. A. Shah. The said proceedings having been stayed till disposal of the suit, it would follow that the application seeking recovery of the goods from him cannot be pursued till disposal of the suit. If the petitioner is not added as a party to the suit, it is doubtful if the said proceeding for recovery of goods without any adjudication can be continued and final order can be passed. The proceeding, apparently, is an off-shoot of the suit. Any finding on the relevant issues relating to taking of the goods- by the petitioner and/or other functionaries of Srinagar Municipality or Srinagar Development Authority -- can be recorded only in presence of the petitioner. In other words, depending on the finding as may be recorded on such issues, the proceeding can be continued and taken to its logical end. Thus, if the said proceeding has any significance and is to be revived and continued till its logical end, it is but proper that the petitioner is made party so that findings are recorded in his presence. Keeping in mind the distinction between the necessary party and proper party, though the suit can be effectively decided and an effective order can be made even without the presence of the petitioner, for a complete and final decision on the controversy involved it is proper to implead him as a party defendant to the suit. In other words, he appears to be a proper party, if not a necessary party.

11. As observed in the leading case on the point, Razia Begum v. Anwar Begum, AIR 1958 SC 886, the addition of parties 'is generally not a question of initial jurisdiction but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case'. It was pointed out that the courts in India have not treated the matter of addition of parties as raising question of initial jurisdiction of the court. In order that a person may be added as a party to the suit, he should have some interest in the subject matter of litigation whether it be questions relating to movable or immovable property.

12. Coming to the question as to whether the petitioner can be impleaded as defendant after over seventeen years of the institution of the suit, the petitioner's objection rests on Sub-rule (5) of Rule 10 of Order I of the Code of Civil Procedure. The provision runs as under:

'(5) Subject to the provisions of the Limitation Act, 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 22 of the Limitation Act (J&K; Limitation Act, 1938 AD corresponding to Section 21 of the Indian Limitation Act, 1963) being virtually part of Sub-rule (5) may also be quoted side by side as under:

'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.

(2) ...'

13. On conjoint reading of the above provisions, Sub-rule (5) of Rule 10 of Order I can be dissected in two parts. First, the date of impleadment is deemed to be the date of the institution of the suit as regards the person so impleaded; and second, the proceedings as against him is deemed to begin from the date of service of summons. Whereas the first part protects the person added from the rigors of the time barred suit, the latter part saves him from rigors of earlier orders passed in the suit, if any, even where the addition is within the period of limitation. As a corollary of the first part, if the cause of action as against the person had become barred by limitation, no relief can be granted against him. The question is whether without seeking any relief, or the court granting any relief, he cannot be added as a defendant-as a proper party ?

14. I find substance in the submission of Mr. Jan that notwithstanding that no relief can be granted against the person who is impleaded beyond the period of limitation -- whether any plea to that effect is taken by him or not in view of provision of Section 3 of the Limitation Act, merely because the limitation has set in, impleadment cannot be denied. It is another matter that no relief can be granted against him. The presence of the petitioner, however, is necessary as the findings on the relevant issues to be recorded in the suit would broadly determine the course of the proceedings kept in abeyance by the order of the Supreme Court.

15. Mr. Shah placed pointed reliance on the observation of the Supreme Court in paragraph 5 in Ramprasad Dagaduram v. Vijaykumar Jotilal Hirakhanwala (supra), 'therefore, it would have been futile to add any of the parties under this sub-rule. In view of the bar of limitation, such addition would not have resulted in any decree being passed and, therefore, the addition should not have been ordered'. The relevance of these observations has to be understood in context of the facts of the case. The facts were that a suit for foreclosure by one Vijay Kumar was dismissed by the trial court. In appeal, on his application, the High Court added his mother Mahabalkumari as a co-plaintiff and her two sisters Rajkumari and Premkumari as defendants. Eventually, the High Court set aside the judgment of the trial court and decreed the suit. A question arise in appeal before the Supreme Court as to whether the addition of Mahabalkumari as a co-plaintiff and Rajkumari and Premkumari as defendants was in accordance with law. From paragraph 5 of the judgment it appears that attempt was made to justify the order of addition under Sub-rule (2) of Rule 10 of Order I. As a matter of fact, the High Court had purported to make the order under Sub-rule (1) of Rule 10 of Order I and no exception was taken to this in the Supreme Court. The Supreme Court firstly observed that addition of Mahabalkumari alone as a co-plaintiff under Sub-rule (1) of Rule 10 of Order I could be of not avail unless Rajkumari and Premkumari too were added but their addition as defendants could not be under Sub-rule (1). In that background the Supreme Court considered the futility of the possible addition of Rajkumari and Premkumari under Sub-rule (2) of Rule 10 of Order I-even though no such argument was made on behalf of the plaintiff-in the context of Section 22 of the Limitation Act, 1908, observing that 'it is not in dispute that the suit filed on the date when three sisters were added, to enforce the mortgage would have been barred'. It is important to bear in mind that these observations were made at the post trial stage after the suit had been decreed by the High Court. Holding that addition of Rajkumari and Premkumari, beyond the period of limitation notwithstanding the addition of Mahabalkumari as co-plaintiff, was not enough, the decree passed in favour of all of them was set-aside. It would thus appear that the observation relied on by Mr. Shah does not form the core of the decision and, in any view, had been made in a different context. The observations occurring elsewhere in the judgment rather suggest that the impleadment beyond period of limitation only affects the result of the suit and not the impleadment itself.

'We think that the High Court had power to join Mahabalkumari as a party plaintiff under Order I, Rule 10 of the Code of Civil Procedure and to join Rajkumari and Premkumari as defendants under Order I, Rule 10(2) and to allow consequential amendments of the plaint under Order 6, Rule 17. But having regard to the bar of limitation, the added parties are not entitled to obtain any relief.'

16. The above observations clearly show that the decision instead of lending help to the petitioner rather goes against him.

17. The law does not bar institution of a time barred suit. The law merely prevents the suitor from obtaining relief in view of the bar of limitation contained in Section 3 of the Limitation Act read with other cognate provisions. If a person can bring a suit which is barred by limitation, notwithstanding the ultimate result thereof, it is not understandable as to why impleadment cannot be allowed only because as on the date of the impleadment the claim is time barred. In other words, the impleadment may turn out to be an infructuous exercise at the end of the trial, but it cannot be denied at the threshold stage. It is to be kept in mind that the bar of limitation only protects the person from grant of any possible relief against him. Where he is only a proper party and no relief is sought against him, the question of limitation in ultimate analysis may not arise.

18. In the circumstances, I hold that the impugned order of impleadment of the petitioner is not hit by the provisions of Sub-rule (5) of Rule 10 of Order I of the Code of Civil Procedure.

19. In the result, I find no merit in this civil revision which is accordingly dismissed but without any order as to costs.