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2015 DIGILAW 883 (RAJ)

Shiv v. Ram Lal

2015-04-20

ARUN BHANSALI

body2015
JUDGMENT : Arun Bhansali, J. This writ petition is directed against the order dated 21.03.2012 passed by the trial court, whereby the application filed by the petitioner under Order 22, Rule 3 and 10 CPC and Order I, Rule 10 CPC read with Section 151 CPC has been rejected. 2. The plaintiff Ram Lal filed a suit seeking cancellation of sale deed executed by one Trilok in favour of Mahadev. Trilok filed written statement and along with written statement, he filed counter-claim also. During pendency of the suit, Trilok died and on a representation made before the trial court, with the consent of the parties, name of Trilok was ordered to be deleted from the array of parties. 3. The petitioner on the strength of a Will said to have been executed by Trilok in his favour filed application under Order 22, Rule 3 and 10 CPC and Order I, Rule 10 CPC before the trial court seeking impleadment as legal representatives of Trilok mainly in the counter-claim. 4. The trial court after hearing the parties came to the conclusion that the application filed was belated and no application seeking condonation of delay has been filed by the petitioner and, consequently, rejected the application. 5. It is submitted by learned counsel for the petitioner that the trial court was not justified in rejecting the application filed by the petitioner only on account of lack of application seeking condonation of delay. It is further submitted that the petitioner has also sought impleadment under Order I, Rule 10 CPC, for which, the limitation is not 90 days but is three years from the date the cause of action arises. 6. Learned counsel for the respondents submits that the Will (Annex.-3) produced by the petitioner is a highly doubtful document and the petitioner is not entitled even otherwise to be impleaded as party to the counter-claim. It is further submitted that in case, the application filed by the petitioner is accepted then the petitioner may also be directed to be impleaded as legal representative of Trilok as defendant No.1 also besides plaintiff in the counter-claim. 7. I have considered the rival submissions made by learned counsel for the parties. 8. It is further submitted that in case, the application filed by the petitioner is accepted then the petitioner may also be directed to be impleaded as legal representative of Trilok as defendant No.1 also besides plaintiff in the counter-claim. 7. I have considered the rival submissions made by learned counsel for the parties. 8. From a bare perusal of the order passed by the trial court, it is apparent that the trial court without examining the merits of the application has rejected the same only on the ground that the same was not accompanied by application under Section 5 of the Limitation Act seeking condonation of delay. 9. It has been held by Hon'ble Supreme Court in the case of Mithalal Dalsanagar v. Annabai Devram Kini & Ors.:2003(2) WLC (SC) Civil 597 that the application under Order 22, Rule 3 by itself imbibe the prayer seeking setting aside of abatement as well as condonation of delay and, therefore, it is not necessary that separate application should be filed. Further, Hon'ble Supreme Court in the case of State of Kerala v. Sridevi & Ors.: (2009) 9 SCC 168 has held that limitation for filing application under Order I, Rule 10 CPC is three years form the date the cause of action arises. 10. Admittedly, in the present case, the petitioner has filed application under Order I, Rule 10 CPC also seeking impleadment as plaintiff in the counter-claim filed by Trilok and, therefore, on that count also, it cannot be said that the application filed by the petitioner was barred by limitation. 11. So far as the plea raised by learned counsel for the respondents raising doubts on the validity of the Will (Annex.-3) is concerned, the said aspect has to be examined by the trial court on respondent-plaintiff filing appropriate objections and/or the trial court framing issue based on the validity of the Will. 12. It would be open for the respondent-plaintiff to raise objection and/or contest the validity of the Will produced by the petitioner. 13. In view of the above discussion, the writ petition filed by the petitioner is allowed. The order dated 21.03.2012 passed by the trial court is set aside. The application filed by the petitioner under Order 22, Rule 3, Order 22, Rule 10 and Order I, Rule 10 CPC is allowed. 13. In view of the above discussion, the writ petition filed by the petitioner is allowed. The order dated 21.03.2012 passed by the trial court is set aside. The application filed by the petitioner under Order 22, Rule 3, Order 22, Rule 10 and Order I, Rule 10 CPC is allowed. The petitioner is directed to be impleaded as legal representative of defendant No.1 Trilok in the suit as well as in the counter-claim filed by Trilok and the trial court would then proceed with the suit as expeditiously as possible. Petition allowed.