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2014 DIGILAW 4303 (MAD)

Nalla Gounder v. Illanagai

2014-11-18

K.RAVICHANDRA BAABU

body2014
Judgment The present Civil Revision Petition is filed by the plaintiff as well as third parties to the suit, challenging the order dated 2.8.2014 in I.A.No.631 of 2014 in O.S.No.106 of 2008 on the file of the Additional District Munsif Court, Tiruchengode, in dismissing their application filed under Order 1 Rule 10(2) CPC for impleading the petitioners 2 to 4 herein as party-plaintiffs 2 to 4 in the said suit. 2. The respondent herein is the defendant in the said suit. Originally, the said suit was filed by the first petitioner herein for permanent injunction, and thereafter, by way of amendment of the plaint, the relief of declaration was added in the plaint prayer. The said amendment had taken place by order dated 4.7.2012 passed in I.A.No.784 of 2011. Thereafter, the present application under Order 1 Rule 10(2) CPC in I.A.No.631 of 2014 was filed by the plaintiff along with the proposed parties, for impleading the petitioners 2 to 4 herein as plaintiffs 2 to 4, by contending that by reason of the amended Hindu Succession Act, 2005, the suit would fail, if the proposed parties are not added as co-plaintiffs, as they are coparceners entitled to share in the suit property. In the said application, it is also specifically stated by the plaintiff that he is not proposing to examine the witnesses on his side, if the proposed parties are impleaded as co-plaintiffs 2 to 4. The said application was resisted by the defendant. The trial Court dismissed the said application by holding that by virtue of Section 21 of the Limitation Act, the impleadment of the proposed parties as co-plaintiffs is barred by limitation, considering the nature of the relief sought for in the suit. The trial Court has also observed that even though the amendment of the plaint was made in the year 2012 and even before that, the amendment of the Hindu Succession Act came into force in the year 2005, the plaintiff has not taken steps to implead all the sharers as co-plaintiffs. 3. The trial Court has also observed that even though the amendment of the plaint was made in the year 2012 and even before that, the amendment of the Hindu Succession Act came into force in the year 2005, the plaintiff has not taken steps to implead all the sharers as co-plaintiffs. 3. Mr.N.Manokaran, learned counsel for the petitioners submitted that the trial Court is not correct in holding that the relief sought for in the suit would be barred by limitation insofar as the proposed parties are concerned, by virtue of Section 21 of the Limitation Act, since the proviso to the said Section 21 takes care of the issue with regard to the limitation, if the Court comes to the conclusion that the substitution of the party at a later stage is with bona-fide. In support of his submissions, the learned counsel for the petitioners relied on a decision of the Honourable Supreme Court reported in 2001 (4) SCC 96 (Ramalingam Chettiar Vs. P.K.Pattabiraman). 4. Per contra, learned counsel for the respondent submitted that the substitution is undoubtedly barred under Section 21 of the Limitation Act and the defendant will have to file additional written statement and in that process, the trial of the proceedings would be unnecessarily delayed. He also submitted that substitution goes contra to the evidence already let in by the parties. In support of his submissions, learned counsel for the respondent relied on a decision of the Jammu and Kashmir High Court reported in AIR 1960 JAMMU AND KASHMIR 67 (Mt.Bindru Vs. Sada Ram and others) to contend that the addition of the party at a later stage cannot be entertained. 5. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 6. It is not in dispute that the plaintiff is the father of the proposed parties. It is also not in dispute that the suit originally filed for permanent injunction, was subsequently amended to include the relief of declaration of plaintiff's title to the suit property as well. It is also not in dispute that such amendment made to the plaint by including the relief of declaration, has not been challenged and has become final. It is also not in dispute that the suit originally filed for permanent injunction, was subsequently amended to include the relief of declaration of plaintiff's title to the suit property as well. It is also not in dispute that such amendment made to the plaint by including the relief of declaration, has not been challenged and has become final. Now, the present application is filed by the plaintiff and the proposed parties, stating that the proposed parties are co-sharers, and therefore, they have to be included as party-plaintiffs, by reason of the amended Hindu Succession Act, 2005, otherwise, the suit would fail on technical reason. No doubt, the suit was filed in the year 2008 and even before filing of the suit, the amended Hindu Succession Act came into force in 2005. However, considering the relationship of the parties sought to be impleaded as co-plaintiffs, being the children of the plaintiff, I am of the view that the bona-fide cannot be doubted on the part of the plaintiff in filing the said suit without impleading the children, namely the proposed parties 2 to 4 herein. As rightly pointed out by the learned counsel for the petitioners, the proviso to Section 21 of the Limitation Act empowers the Court to direct that the suit as regards such plaintiff or defendant is deemed to have been instituted on any earlier date. At this juncture, it is useful to refer the decision of the Honourable Supreme Court reported in 2001 (4) SCC 96 (Ramalingam Chettiar Vs. P.K.Pattabiraman), wherein proviso to Section 21 of the Limitation Act was considered and the Honourable Supreme Court observed as follows: "6. ..... .... Section 21 of the Limitation Act contemplates two situations--one under the substantive provision which provides that where after filing of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been brought on the day when he was added or substituted as a party in the suit. The second situation contemplated under the proviso to the substantive provision is where the court is satisfied that a new plaintiff or defendant was omitted to be added or substituted due to a mistake in good faith, the court may direct that the suit, as regards the newly-added or substituted party, shall be deemed to have been instituted on any earlier date. Thus, under the proviso, if the court is satisfied, it can direct that the suit, as regards newly-added or substituted plaintiff or defendant, shall be deemed to have been instituted on an earlier date. In such a case, the court after substituting or adding a party in the suit is required to pass a separate/further order that the suit, as regards the newly-added defendant or plaintiff, shall be deemed to have been instituted with effect from the date the suit was laid. Merely adding or substituting a plaintiff or defendant by the court is not enough. In the absence of any order that the impleadment of newly-added or substituted party shall take effect from the date of institution of a suit, the period of limitation so far as the newly-added or substituted (sic) shall run from the date of their impleadment in the suit. ... ..." 7. The trial Court has proceeded to dismiss the application as if Section 21 of the Limitation Act totally bars impleading such proposed parties as co-plaintiffs, without considering the scope of proviso to Section 21 of the Limitation Act. The petitioners have specifically stated in the affidavit filed in support of their application that the first petitioner was confronted with a question during cross-examination as P.W.1 by the defendant's counsel by suggestion that because of non-inclusion of the proposed parties, by reason of amended Hindu Succession Act, 2005, the suit should fail and therefore, in order to avoid such technical objection, the proposed parties are sought to be impleaded. Further, the petitioners have categorically averred in the affidavit filed in support of the application before the trial Court that by virtue of the impleadment of the proposed plaintiffs 2 to 4, they do not propose to examine any witness on their side. Learned counsel appearing for the petitioners herein also submitted that the petitioners will not make any further amendment in the plaint except amending the cause title. That being the statement already made in the affidavit filed in support of the application as well as the statement made before this Court, I am of the view that the mistake in not adding them earlier, was in good faith. Belated applications always cannot be said that they are without any bona-fide or without any good faith. That being the statement already made in the affidavit filed in support of the application as well as the statement made before this Court, I am of the view that the mistake in not adding them earlier, was in good faith. Belated applications always cannot be said that they are without any bona-fide or without any good faith. Inspite of such belatedness, if the Court comes to the conclusion that there is bona-fide on the part of the applicant who has acted in good faith, the Court can consider such application on merits as well. The interest of the defendant is not at all prejudiced in any manner, as the trial can go on as such, based on the pleadings submitted by the parties available as on today. 8. Learned counsel for the respondent relied on a decision of the Jammu and Kashmir High Court reported in AIR 1960 JAMMU AND KASHMIR 67 (Mt.Bindru Vs. Sada Rama and others) to contend that addition of a party at a belated stage cannot be entertained. It is needless to say each and every case has to be considered on its own merits and facts and circumstances, and therefore, the ratio laid down in the said decision cannot be applied uniformly to all the cases. In this case, it is specifically stated by the plaintiff under what circumstances, he along with the proposed parties, have come out with the present application. Considering the nature of the relationship between the parties and also the reason stated in the affidavit filed in support of the said application that the suit would fail on technical reason if the proposed parties are not added, I am of the view that interest of justice requires that the impleadment of the proposed parties as co-plaintiffs 2 to 4 is to be allowed. 9. Accordingly, I find that the impugned order of the Court below needs to be interfered with. Consequently, the Civil Revision Petition is allowed. I.A.No.631 of 2014 in O.S.No.106 of 2008 is allowed and impleadment of the petitioners 2 to 4 will take effect from the date of presentation of the plaint. 9. Accordingly, I find that the impugned order of the Court below needs to be interfered with. Consequently, the Civil Revision Petition is allowed. I.A.No.631 of 2014 in O.S.No.106 of 2008 is allowed and impleadment of the petitioners 2 to 4 will take effect from the date of presentation of the plaint. Since the suit is of the year 2008, the trial Court is directed to take up the suit in O.S.No.106 of 2008 and dispose of the same, on merits and in accordance with law, within a period of four months from the date of receipt of a copy of this order. No costs. The Miscellaneous Petition is closed.