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2018 DIGILAW 41 (RAJ)

Virendra Kumar v. Hari Kishan

2018-01-03

DINESH MEHTA

body2018
JUDGMENT : Dinesh Mehta, J. The present appeal under Section 96 of the Code of Civil Procedure, 1908 has been filed by the appellant - son of Abhimanyu, being aggrieved of the judgment and decree dated 05.12.1987 passed by learned District Judge, Sriganganagar. 2. The facts giving rise to and relevant for deciding the present appeal, succinctly stated are that a suit for partition was filed by the plaintiffs - Harikishan and Bansidhar, sons of one Surajmal, resident of Village Phephana, Tehsil Nohar, District Sriganganagar, against six defendants, namely, Surajmal, Ram Pratap, Gauri Shankar, Abhimanyu, Mathara Devi and Kunti. 3. As per the facts stated in the plaint, Surajmal, son of Jagannath, contracted two marriages first with Kunti and thereafter with Mathara Devi. His first wife Kunti had two sons namely Harikishan and Bansidhar (plaintiffs); whereas Ram Pratap, Gauri Shankar and Abhimanyu, being defendants No. 2 to 4 were born out of his wedlock with Mathara. 4. The suit so filed by the plaintiff resulted in a preliminary decree dated 24.03.1961, vide which the joint family property was held divisible between the plaintiffs and defendants, each one of them was held entitled to ?th share. 5. The defendants preferred an appeal against the aforesaid judgment and decree dated 24.03.1961, which was disposed of by this Court, vide its judgment dated 30.07.1971 (Civil First Appeal No. 50/1961). During the pendency of the aforesaid appeal, and before the partition by metes and bounds could take place Smt. Kunti passed away, consequently, each plaintiff and defendant became entitled to 1/7th share but for this small modification, the judgment and decree dated 24.03.1961 was affirmed. 6. Surajmal, defendant No. 1 passed away on 16.01.1983, while the proceedings for preparation of final decree were pending. 7. The appellant Virendra Kumar, along with his two brothers Pramod Kumar and Vinod Kumar, being sons of Abhimanyu (grandsons of Surajmal) filed an application on 22.06.1987 under Order I Rule 10 of the Code of Civil Procedure, seeking their impleadment in the aforesaid case No. 69/1982, on the basis of two wills said to have been executed by Surajmal and Mathara in their favour; allegedly bequeathing their respective share in the joint family property, stemming from the preliminary decree dated 24.3.1961 and the final decree dated 29.4.1977. The applicants sought their impleadment in the proceedings, to stake claim for the 1/7th share in the property to which Surajmal (their grand father) was entitled. The said application dated 22.6.1987 was filed under the signatures of all the three applicants, namely Pramod Kumar, Vinod Kumar and Virendra Kumar. 8. Subsequent thereto, the parties to the proceedings have arrived at a settlement in Lok Adalat and a written compromise came to be executed and was placed before the court below with a request to pass a decree in terms thereof. The compromise aforesaid, duly signed by plaintiffs Harikishan, Banshidhar and defendants Ram Pratap, Abhimanyu, Gaurishanker including two of the applicants namely Vinod Kumar and Pramod Kumar (sons of Abhimanyu), identified by their respective counsel was presented in the Court below. In light of the aforesaid compromise, executed with an object of giving quietus to the long drawn dispute between the brothers, the trial Court passed a judgment and decree on 05.12.1987, recording presence of the parties, while obtaining their signatures on the order-sheet of the trial Court. By way of the judgment and decree dated 5.12.1987, drawn on the basis of the compromise of even date, the trial Court partitioned the property between the plaintiffs and defendants including Abhimanyu (the father of the appellant). 9. Laying challenge to the aforesaid judgment and decree dated 5.12.1987, the appellant preferred the present appeal on 1.3.1988, which had been admitted on 10.4.1988 and after hearing the counsel for Appellant and Respondents No. 1, 2, 4 and 5, the framing of the final decree had been stayed on 22.7.1988. 10. During the pendency of the present appeal, endeavour to amicably settle the matter were made, but of little avail and the appeal has come up for hearing before this Court after about 30 years of its institution. 11. Mr. Vinay Kothari, learned counsel for the appellant submitted that the judgment and decree aforesaid has been passed without deciding the appellant's application dated 22.06.1987 under Order I Rule 10 of the Code, seeking his impleadment in the suit proceedings. Narrating the facts in brief, he pointed out that a joint application dated 22.6.1987 had been filed by the appellant along with his two brothers, namely Vinod Kumar and Pramod Kumar; who later on withdrew the same, without consulting, rather intimating him. Narrating the facts in brief, he pointed out that a joint application dated 22.6.1987 had been filed by the appellant along with his two brothers, namely Vinod Kumar and Pramod Kumar; who later on withdrew the same, without consulting, rather intimating him. Navigating the Court through the judgment and decree and the order-sheet dated 5.12.1987 drawn by the Court below, he highlighted that Pramod Kumar and Vinod Kumar, in the absence of the Appellant, presented themselves before the Court and withdrew the joint application dated 22.6.1987 without taking his consent. He added that it were they (Vinod & Pramod), who had signed the compromise, paving way for the consent decree. 12. Mr. Kothari submitted that the application for impleadment, which was signed and filed conjointly by all the three brothers could not be permitted to be withdrawn by two of the applicants and the same can, in no case bind the appellant. According to learned counsel, the application filed by the appellant still survived and in absence of the decision thereupon, learned trial Court could not pass the judgment and decree in question. 13. Learned counsel for the appellant invited attention of this Court towards the provisions contained under Order 23 Rule 1(5) of the Code of Civil Procedure in support of his contention that the Court cannot permit withdrawal of a joint application, without the consent of other co-applicant(s). It will not be out of place to reproduce sub-rule (5) of Order XXIII of Rule 1 of the Code of Civil Procedure, which reads thus :- "(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdrawn, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs." 14. Elaborating his arguments further, Mr. Kothari submitted that the appellant along with his two brothers namely Pramod Kumar and Vinod Kumar had filed the joint application dated 22.6.1987 in the trial Court, asserting that their grand parents Surajmal and Mathara have executed wills in their favour, vide which the properties, destined to come to them had been divested to the applicants; for which they were necessary parties, so as to claim Surajmal's share in the property. Learned counsel contended that as per the judgment and decree passed by High Court in the first appeal, Surajmal was held entitled to 1/7th share in the property, which ought to have been given to the applicants, in light of the will. 15. In the backdrop of these facts, he submitted that the appellant along with his two brothers ought to have been impleaded as a party respondent and should have been given 1/7th share (to be distributed as per will of Surajmal); whereas the trial Court has partitioned the property, completely overlooking their entitlement by reason of having stepped into the shoes of Surajmal. Mr. Kothari thus urged that the judgment and decree under challenge, deserves to be set aside as the appellant's application, seeking impleadment remained undecided. 16. Mr. Dalpal Raj Bhandari, learned counsel appearing for the respondents supported the judgment and decree passed by the court below and advanced a plethora of arguments including but not limiting to the admissibility and genuineness of the will; namely will is undated; only a photocopy has been produced, without filing the original thereof; the signatures of the witnesses on the will are not in conformity with the provisions of Section 65 of the Evidence Act and 63 of the Indian Succession Act; the will does not bear signatures of the witnesses. Besides questioning the veracity and genuineness of the will, Mr. Bhandari contended that a common application was submitted by all the three brothers through their counsel, which application had been withdrawn by Vinod Kumar and Pramod Kumar in presence of their counsel, hence the same should be treated to be withdrawn by all of them, particularly because their counsel was present. Learned counsel for the respondent further raised an objection regarding the competence of the appeal, as the appellant was not a party before the trial court, for which the appeal without taking leave, by way of filing an appropriate application was not maintainable. 17. Mr. Bhandari contended that the nature of controversy, which has been sought to be raised before this Court cannot be considered in the present appeal, as it relates to procedural aspect of the matter, instead of touching upon the merit of the judgment and decree. 18. 17. Mr. Bhandari contended that the nature of controversy, which has been sought to be raised before this Court cannot be considered in the present appeal, as it relates to procedural aspect of the matter, instead of touching upon the merit of the judgment and decree. 18. Without prejudice to his aforesaid arguments that the said application should be deemed to have been withdrawn by the appellant also, learned counsel for the respondents contended that the appellant ought to have applied for review or moved an appropriate application before the Trial Court itself, if he was of the belief that his application under Order I Rule 10 the Code of Civil Procedure remained undecided. In this regard, he relied upon judgment of Supreme Court reported in 2011 SCW 4650 and AIR 1983 (Raj.) 240 . While relying upon the judgment of Hon'ble Supreme Court reported in AIR 1987 (SC) 88 , he argued that the appellant ought to have filed an application for setting aside the ex parte decree instead of preferring the appeal and that the appellant has to take permission from the same court. 19. It was also argued that the appellant has not laid any challenge to the order disposing of his application under Order I Rule 10 of the Code of Civil Procedure and that in light of the provisions contained in Order I Rule 1 of the Code, all the applicants are bound by the judgment and decree. 20. Mr. Ladrecha, learned counsel appearing for some of the respondents though adopted the arguments of Mr. Bhandari, but nevertheless contended that notwithstanding his stand regarding genuineness of the will, a simple look at para -1 of the will shows that the appellant Virendra Kumar has been bequeathed a 'Haveli' in village Phephana, which has not been made a part or a subject matter of the decree. While reading the decree under consideration, he submitted that as none of the properties belonging to the appellant have been partitioned or given to the parties to the decree, the appellant's grudge or grievance against the decree, is illusory or misconceived. 21. In rejoinder, Mr. While reading the decree under consideration, he submitted that as none of the properties belonging to the appellant have been partitioned or given to the parties to the decree, the appellant's grudge or grievance against the decree, is illusory or misconceived. 21. In rejoinder, Mr. Kothari appearing for the appellant tried to clarify the factual position in relation to the will and submitted that if the will is read in its entirety, it is clear that apart from the 'Haveli', the appellant Virendra Kumar had been given a large share in the agricultural land also. He added that appellant's rights flowing from the will of his grand father late Shri Surajmal have been given a go by, rather they have been taken away, vide the judgment and decree. 22. In response to the argument of Mr. Bhandari that the appellant ought to have filed a leave to appeal, instead of directly filing the instant appeal, Mr. Kothari argued that provisions of Section 96 of the Code cannot be read or interpreted to mean that appeal can be filed by a party to the suit proceedings only. While reading the provision, he submitted that any person can challenge or question a judgment and decree, in view of the wide ambit of Section 9 of the Code, for which no permission or leave to appeal is envisaged. 23. Without prejudice to the above, learned counsel for the appellant argued that the present appeal had been admitted about 30 years ago, and this question has never been raised by the respondents; as such they are estopped from raising such hyper-technical pleas. 24. Heard learned counsel for the parties and perused the material available on record, including the record of the trial Court. 25. Before adverting to the rival submissions, this Court deems it appropriate to bring to fore certain facts which have surfaced from the scanning and scrutiny of the record. It is not in dispute that Surajmal - defendant No. 1 and father of plaintiffs No. 1, 2 and defendants No. 2 to 4 had expired on 16.1.1983, before the framing of the final decree. The application under Order I Rule 10 the Code of Civil Procedure came to be filed by the appellant along with his two brothers, Vinod Kumar and Pramod Kumar (both sons of Abhimanyu) on 22.6.1987. The application under Order I Rule 10 the Code of Civil Procedure came to be filed by the appellant along with his two brothers, Vinod Kumar and Pramod Kumar (both sons of Abhimanyu) on 22.6.1987. It is pertinent to note that simultaneous to the filing of the aforesaid application for impleadment filed by these applicants, their father Abhimanyu (defendant No. 2) filed an objection regarding preparation of the final decree, indicating therein that Surajmal - his father and Mathra Devi had executed a will, conveying their properties to his three sons, namely Vinod Kumar, Pramod Kumar and Virendra Kumar. It was also indicated in the said application that various land parcels situated in Murabba No. 52, 56 and 57 and chak 7 Z had already been recorded in his name and in name of his three sons, viz. Vinod Kumar, Pramod Kumar and Virendra Kumar on the basis of the will and that the property in question be distributed in such a way that his sons namely Pramod Kumar, Vinod Kumar and Virendra Kumar conjointly get 1/7th share belonging to Surajmal. 26. A reply to the aforesaid applications dated 22.6.1987 came to be filed by Gaurishankar - defendant No. 3, who not only disputed the existence of the will, but also contended that the alleged will is forged and no rights can be determined in absence of a probate. 27. Be that as it may, before the said application under Order I Rule 10 of the Code could be decided, the parties to the suit entered into a compromise, dated 5.12.1987, which was signed by all concerned including Abhimanyu and his two sons Pramod Kumar and Vinod Kumar, (not by Virendra Kumar - the appellant). Such compromise was placed on record, in furtherance whereof the decree came to be passed. 28. On the first look, the grievance raised by the appellant appears to be genuine and it seems that the appellant had not been heard by the Court below and his application remained pending and undecided. But a slightly deeper probe into the matter unravels otherwise. 29. The facts undisputed, obtaining in the present case are that said Surajmal - father of plaintiffs No. 1 and 2 and defendants No. 2 to 4, who himself was defendant No. 1 had expired on 18.1.1983, after preparation of the preliminary decree duly affirmed by the High Court. But a slightly deeper probe into the matter unravels otherwise. 29. The facts undisputed, obtaining in the present case are that said Surajmal - father of plaintiffs No. 1 and 2 and defendants No. 2 to 4, who himself was defendant No. 1 had expired on 18.1.1983, after preparation of the preliminary decree duly affirmed by the High Court. The appellant as well as his two brothers ought to have moved appropriate application, seeking their substitution in place of said Surajmal as his legal representatives, on the basis of the will. But they got up from their long slumber only on 22.6.1987 and instead moved the subject application under Order I Rule 10 of the Code, seeking their impleadment. 30. However, at this stage, when the present appeal is pending for about 30 years, this court feels that rejecting the said application on this ground alone would fetter justice and tantamount to a hyper-technical approach to the procedural law, which is otherwise meant to further the cause of justice. This view of the court is fortified by the judgment of the Hon'ble Supreme Court in the case of Pankajbhai Rameshbhai Zalavadia v. Jethabhai Kalabhai Zalavadiya (deceased) through L.Rs. and Ors., (2017) 9 SCC 700 , relevant excerpt whereof are reproduced below:- "14. In the matter on hand, though the trial court had rightly dismissed the application Under Order 22 Rule 4 of the Code as not maintainable at an earlier point of time, in our considered opinion, it needs to be mentioned that the trial Court at that point of time itself could have treated the said application filed Under Order 22 Rule 4 of the Code as one filed Under Order 1 Rule 10 of the Code of Civil Procedure, in order to do justice between the parties. Merely because of the non-mentioning of the correct provision as Order 1 Rule 10 of the Code at the initial stage by the advocate for the Plaintiff, the parties should not be made to suffer. It is by now well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. Ultimately, the Courts are meant to do justice and not to decide the applications based on technicalities. It is by now well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. Ultimately, the Courts are meant to do justice and not to decide the applications based on technicalities. The provision Under Order 1 Rule 10 Code of Civil Procedure speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party who is improperly joined, it can add any one as a Plaintiff or Defendant if it finds that such person is a necessary or proper party. The Court Under Order 1 Rule 10(2) of the Code will of course act according to reason and fair play and not according to whims and caprice. The expression "to settle all questions involved" used in Order 1 Rule 10(2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject matter thereof. The Parliament in its wisdom while framing this Rule must be held to have thought that all material questions common to the parties to the suit and to the third parties should be tried once for all. The Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties. As mentioned supra, it is only if a Defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the Code can be invoked. Since one of the Defendants i.e. Defendant No. 7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased Defendant No. 7 Under Order 1 Rule 10 of the Code, for the simple reason that the Plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties, subject of course to the law of limitation. Normally, if the Plaintiff had known about the death of one of the Defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. Normally, if the Plaintiff had known about the death of one of the Defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that the High Court experienced in granting the application filed by the Plaintiff Under Order 1 Rule 10 of the Code discloses, with great respect, a hyper-technical approach which may result in the miscarriage of justice. As the heirs of the deceased Defendant No. 7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the Courts are meant to do substantial justice between the parties and that technical Rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice. 15. Having regard to the totality of the narration made supra, there is no bar for filing the application Under Order 1 Rule 10, even when the application Under Order 22 Rule 4 of the Code was dismissed as not maintainable under the facts of the case. The legal heirs of the deceased person in such a matter can be added in the array of parties Under Order 1 Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated Under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial." 31. As far as the applicability of the Limitation Act is concerned, particularly s. 21 and 22 thereof, a clear and crisp observation in this regard has been given by the Hon'ble Supreme Court in Ram Prasad Dagduram v. Vijay Kumar Motilal Mirakhanwala and Ors. AIR 1967 SC 278 , relevant excerpt thereof has been reproduced below:- "20. 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. AIR 1967 SC 278 , relevant excerpt thereof has been reproduced below:- "20. 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. Ramlall Koondoo, I.L.R. (1881) Cal. 815. The rigour of this law has been mitigated by the proviso 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. Unfortunately, the proviso to s. 21(1) of the Indian Limitation Act, 1963 has no application to this case, and we have no power to direct that the suit should be deemed to have instituted on a date earlier than November 4, 1958." 32. The subject application was filed by the applicants on 22.06.1987 and interestingly enough, on the same date, their father - Abhimanyu filed objections, in tune with the application for impleadment filed by the appellant and his two brothers, who happen to be his son. The defendant No. 3, Abhimanyu - father of the appellant cannot be heard to plead ignorance of such will. It is true that Surajmal was not expected to announce the factum of having executed a will in favour of the appellant and his two brothers, but Abhimanyu - father of the applicants was aware of the factum of will in favour of his sons. In such event, Abhimanyu, who was very much a party in the suit proceedings was required to inform the Court or ought to have brought the applicants in motion, so as to get them impleaded as legal representatives of Surajmal, to assert their rights qua share of Surajmal, on the basis of the will. In such event, Abhimanyu, who was very much a party in the suit proceedings was required to inform the Court or ought to have brought the applicants in motion, so as to get them impleaded as legal representatives of Surajmal, to assert their rights qua share of Surajmal, on the basis of the will. Curiously on the death of Surajmal, nobody has moved an application for substitution, for which his name stood deleted from the array of respondents, as Surajmal's legal representatives being plaintiffs No. 1, 2 and defendants No. 2 to 4 were already on record, lest the suit qua Surajmal would have abated. 33. Faced with such situation, after expiry of about four years and six months, the appellant(s) filed an application, seeking their impleadment by way of filing an application under Order 1 Rule 10 of the Code on the basis of photocopy of the will. 34. Suffice it to observe that the photocopy of the will, available on record does not inspire confidence, as the same does not even bear date of its execution, though this Court does not deem it appropriate or imperative to pronounce upon or even comment upon the genuineness and veracity of the will. 35. Having got the application dated 22.06.1987 for impleadment filed by the appellant and two sons Pramod Kumar and Vinod Kumar, the defendant No. 3, Abhimanyu - father permitted the said application to be withdrawn by two of the three applicants, namely Vinod Kumar and Pramod Kumar, knowing it fully well that the same does not bear signatures of Virendra Kumar. It is interesting to find that Abhimanyu had also signed the compromise as well as the order sheets along with Pramod Kumar and Vinod Kumar and presented himself before the Court. 36. An overall appraisal of the factual matrix of the case this Court holds a firm opinion that Abhimanyu - father of the appellant was instrumental in getting the application filed by all the three applicants, as such if the appellant has to blame someone, he should blame his two brothers and father; if he feels that his rights in any manner have been ignored or violated. A closer reading of compromise shows that though a passing reference of will has been made, but no rights have been claimed on the basis of said will rather the rights flowing from the alleged will have been abandoned, which is clear from the recital made in para No. 6 of the compromise dated 5.12.1987, forming part of the judgment and decree. It will not be out of place to reproduce the said recital :- ^^6- ;g fd Qjhd vfHkeU;q ds yM+ds izeksndqekj o fouksndqekj ds uke bUrdky olh;r dh fcuk, ij gks pqdh gS bl bUrdky dks jn~n djds vkjkth ftl ds fgLlk esa og vkbZ gS og Qjhd vius uke] budh xSj gktjh esa djok ldsxk bUrdky djok ldsxkA** 37. A perusal of the aforesaid part of the compromise leaves no room for ambiguity that Abhimanyu and his two sons namely Pramod Kumar and Vinod Kumar have consented to get the mutation entry amended in terms of the judgment and decree/compromise, which entries have been made on the basis of the will. No sooner did the judgment and decree aforesaid came to be passed on 5.12.1987, than the present appeal has been filed by the appellant on 13.01.1988 along with a certified copy of the judgment and decree obtained on 12.1.1988. The appellant has not been able to show any reason or justification as to how he came to know about passing of the impugned judgment and decree. 38. On overall appreciation of the material available on record, this Court is of the firm view that the appellant had kept himself aloof and absent, at the time of passing of the compromise decree dated 5.12.1987. The entire ploy had been hatched by Abhimanyu and his three sons, so as to take advantage of the inadvertent error committed by the trial Court, in an anxiety to resolve a long drawn family dispute. 39. The application dated 22.6.1987 filed by the appellant along with his two brothers suffered from delay and laches besides being misconceived. If the appellant had a valid will in his favour, he ought to have moved an application for substitution as legal representatives of Surajmal, immediately after his death on 16.1.1983. 39. The application dated 22.6.1987 filed by the appellant along with his two brothers suffered from delay and laches besides being misconceived. If the appellant had a valid will in his favour, he ought to have moved an application for substitution as legal representatives of Surajmal, immediately after his death on 16.1.1983. The subject application seeking impleadment under Order I Rule 10 of the Code filed after a delay of four years and six months itself was misconceived, particularly when name of Surajmal stood deleted in presence of Abhimanyu, their father, who was very much aware of the purported will in favour of the applicants, his sons. The applicants' application under Order I Rule 10 may be maintainable, but in essence they want to step into the shoes of Surajmal, hence it will be governed by the principles governing an application under Order XXII Rule 4 of the Code. Limitation for filing an application to have legal representatives of deceased defendant on record is 90 days from the date of death as envisaged under Article 120 of the Limitation Act. Though the application under consideration is for the same cause but invoking provision of Order I Rule 10 or the Code, generally speaking the limitation of 90 days shall be applicable, notwithstanding the fact that no specific limitation has been provided for applications under Order I Rule 10 of the Code seeking impleadment, applying the residuary clause under Article 137 of the Limitation Act, 1961. Therefore, the application under consideration was required to be filed within 3 years of the death of Surajmal, who expired on 16.01.1983. 40. The subject application had been filed on 22.06.1987, after about 4 years and 5 months without stating the reasons for delay, much less explaining it. The application dated 22.06.1987 was therefore filed after expiry of the time limit and was barred by law and not maintainable. 41. The present appeal is pending before this Court, for about 30 years hence instead of remanding the matter back to the trial Court for deciding the said application, this Court had deemed it appropriate to decide the same, as the appeal is continuation of the suit proceedings. 42. In view of aforesaid discussions, the application dated 22.6.1987 filed on behalf of appellant Virendra Kumar is found to be misconceived and malafide besides being incompetent for inordinate delay and laches. Hence the same is dismissed. 43. 42. In view of aforesaid discussions, the application dated 22.6.1987 filed on behalf of appellant Virendra Kumar is found to be misconceived and malafide besides being incompetent for inordinate delay and laches. Hence the same is dismissed. 43. Since the appellant's entire case hinges around his application dated 22.6.1987, seeking impleadment and the application under Order I Rule 10 of the Code itself has been dismissed, the appeal also falls to its doom. 44. The contention of Mr. Kothari based on provisions of Order XXIII Rule 1 (5) of the Code of Civil Procedure is unpalatable and unsustainable. Firstly, the language and heading of Order XXIII Rule 1 of the Code makes it explicitly clear that the same are applicable to suit proceedings and are meant for 'plaintiffs' and the same are not applicable to the applicants, seeking impleadment. Notwithstanding above, even if, it is presumed that such principles also govern the application under Order 1 Rule 10 of the Code, this Court is of the considered view that a combined application came to be filed by the appellant along with his two brothers, through a common counsel. Said counsel was very much aware and present, when the application aforesaid was withdrawn by Vinod Kumar and Pramod Kumar. As such when the application for impleadment has been withdrawn by two of the three applicants, in presence of their common counsel, who was having Vakalatnama and authority on behalf of all the applicants, the application filed on behalf of appellant Virendra Kumar also stood withdrawn. 45. In view of the aforesaid findings, and consequent dismissal of the appeal, this Court does not find it necessary to deal with various other arguments advanced by Mr. Bhandari, in support of the judgment and decree dated 5.12.1987. The appeal fails. The cost made easy.