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2017 DIGILAW 1459 (HP)

Sher Singh v. Bhajni Devi

2017-12-28

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. The order dated 18.08.2017, passed by learned Civil Judge (II), Kangra, H.P., in an application under Order 1, Rule 10 C.P.C., is under challenge in this petition. The trial Court has dismissed the application filed for impleading Saina Devi, Puniya Devi, Raksha Devi (daughters) and Ishwar Dass (son) of deceased Bhambroo Devi as respondents. 2. The petitioners are plaintiffs in the trial Court. They have set up a Will allegedly executed in their favour by one Surjan Singh, father of deceased Bhambroo Devi and the grand-father of the present respondents-defendants. However, on the death of Surjan Singh, his estate came to be inherited by respondents-defendants, including deceased Bhambroo Devi, vide mutation No. 265 attested in their favour on 30.08.1994. The petitioners-plaintiffs though have assailed the order of mutation on the ground, inter-alia, that it is they only who are owners in possession of the suit property pursuant to the Will executed by Surjan Singh in their favour, however, without impleading Bhambroo Devi as one of the defendants. 3. The respondents-defendants in the written statement filed to the suit, have raised preliminary objection and including that the suit is bad for non-joinder of necessary parties. The written statement though was filed long back in the year 2007, however, the application, initially to implead Bhambroo Devi as one of the defendants in the suit, came to be filed in the month of August, 2017. At this stage, both the parties have led their evidence and the suit is at the stage of final arguments. The respondents-defendants in their reply to the application have come forward with the version that deceased Bhambroo Devi has expired in the year 2007. The said application, as such, was withdrawn. It is after that the application, Annexure P-4, under Order 1, Rule 10 C.P.C. for impleading the daughters and son of deceased Bhambroo Devi as defendants in the suit, was filed. 4. The application has been resisted and contested on the ground, inter-alia, that the same being belated, deserves to be dismissed. 5. Learned trial Court while deciding the application, has concluded that the plaintiffs have failed to show that after exercise of due diligence, the application cannot be filed at a belated stage and daughters and son of deceased Bhambroo Devi are not required to be impleaded as defendants to decide the suit keeping in view the relief sought therein. 5. Learned trial Court while deciding the application, has concluded that the plaintiffs have failed to show that after exercise of due diligence, the application cannot be filed at a belated stage and daughters and son of deceased Bhambroo Devi are not required to be impleaded as defendants to decide the suit keeping in view the relief sought therein. 6. Having gone through the record available at this stage and on consideration of the rival submissions, no doubt, the petitioners-plaintiffs have considerably delayed the filing of application for impleadment of the daughters and son of deceased Bhambroo Devi. The application should have been filed immediately after the objection qua the suit bad for non-joinder of necessary parties, raised in the written statement. This Court, however, is not in agreement with the findings so recorded by learned trial Court that the persons, i.e. the daughters and son of deceased Bhambroo Devi, are not necessary parties in the suit for the reasons that admittedly on the death of Surjan Singh, the mutation qua the suit property he left behind, was not only sanctioned in the name of respondents-defendants but also in that of deceased Bhambroo Devi. The point in issue in the suit, therefore, cannot be decided more effectively and judiciously in the absence of daughters and son of said deceased Bhambroo Devi. Otherwise also, an executable decree cannot be passed in the suit because in the event of the suit is decreed, the proposed defendants may come forward and raise objections, including the same passed behind their back. No doubt, the suit presently is at an advance stage, i.e. at the stage of arguments. The same, however, is still in the trial Court. In the event of the proposed defendants are not ordered to be impleaded as such in the suit, a defect will remain in the pleadings throughout which besides the multiplicity of litigation may also result in other legal complications even more serious in nature. 7. Therefore, irrespective of the delay as occurred in filing the application for impleadment of daughters and son of deceased Bhambroo Devi as defendants, the equity can be adjusted by imposing cost upon the petitioners-plaintiffs. The application, as such, is allowed, subject to payment of Rs. 10,000/- as costs to be paid to the defendants-respondents in the trial Court on the next date. The application, as such, is allowed, subject to payment of Rs. 10,000/- as costs to be paid to the defendants-respondents in the trial Court on the next date. Consequently, the aforesaid Saina Devi, Puniya Devi, Raksha Devi (daughters) and Ishwar Dass (son) of deceased Bhambroo Devi, are ordered to be impleaded as defendants in the main suit. The plaintiffs shall file the amended memo of parties in the trial Court on the next date. Learned trial Court shall issue notice to them and proceed further in the suit in accordance with law. 8. The parties through learned counsel representing them, are directed to appear in the trial Court on 12th January, 2018. The trial Court is directed to complete the pleadings of the parties, if any, in the changed circumstances, i.e. addition of parties, and decide the suit at the earliest preferably on or before 30th June, 2018. The petition stands accordingly disposed of, so also the applications, if any.