Jaya and Others vs K. Gopala Raju and Others

L. Narayana Swamy, J.—Plaintiff-petitioners filed an application under order 1 Rule 10(2) r/w Section 151 of CPC for impleading proposed defendants No. 14 to 26 who are the legal representatives of the defendant Nos. 1 and 2. It is contended by the learned counsel for the plaintiff-petitioners that plaintiffs have filed the suit for partition and separate possession of their 1/3rd share in the suit schedule properties. The LRs mentioned above are in possession and carrying on the business which are joint family properties. This aspect was brought to the notice of the petitioners, they are the necessary parties to the proceedings and hence they are to be impleaded as additional defendants. The said application filed by the plaintiffs was dismissed on 13.02.2015. Aggrieved by the said order, the petitioners are before this court by filing the present writ petitions.

It is the case of the plaintiff-petitioners that it is proved before the court that the proposed respondents who are the LRs of defendants No. 1 and 2 and who are carrying on the business in various firms are representing the joint family properties. It is further contended that the rejection of applications by learned judge is improper and contrary to order 1 Rule 10(2) of CPC and that the said applications could be made at any stage before the pronouncement of the judgment. When such being the provisions of law, the reasons assigned by the learned judge that the said application filed belatedly and there is a delay of 15 years and for the said delay there is no proper reasons assigned. The said reasoning is not correct. In support of this submission, the learned counsel for the petitioners referred to unreported judgment in RSA No. 5972/2012 and connected matter between Surekha and Others vs. Maruti Krishna Itekari and others wherein it is held at para No. 7 as follows:

".....all persons having a share are necessary parties in a suit for a declaration"

He also relied upon the judgment reported in Ramader Appala Narasinga Rao Vs. Chunduru Sarada, AIR 1976 AP 220 : (1976) 1 APLJ 148 wherein it is held at para No. 7 as follows:

"..... The suit will be disposed of only with the passing of the final decree which was not done by that date and hence a petition under Order 1 Rule 10 C.P.C. was maintainable."

Another Judgment reported in Smt. Aswathamma Vs. H.M. Vijayaraghava, AIR 1999 Kar 21 : (1998) 5 KarLJ 320 wherein it is held at para No. 22 as follows:

"Thus it appears to me that the stage in the suit is not closed till the final decree is passed. The preliminary decree no doubt determines the share, but with the preliminary decree the shares have been determined without hearing this person whose presence was necessary and whose impleadment was necessary,"

Learned counsel for the respondents who resisted the applications, submits to dismiss these petitions. In order to support his contention he has relied upon the order passed by this Court in Writ Petition Nos. 4913 and 4914/2014 filed by the very same plaintiffs and the petition itself came to be disposed on 28.02.2014, in which the court observed that the application for amendment has been filed on 19.12.2013 after the lapse of nearly 13 years. The proposed amendment is highly belated. The learned counsel for the respondents submitted that under Article 110 of Limitation Act, suit by a person who is excluded from the joint family property, to enforce the right, the limitation is 12 years and further direction has been issued in the very same order to dispose of the matter as early as possible within the outer limit of March, 2015. When such being the order passed by this court instead of cooperating with the court to dispose of the matter, at the fag end, the plaintiffs have filed this application and the court has rightly dismissed the application and there is no error or irregularity committed by the learned Judge. Accordingly he submits to dismiss this petition. Earlier the petitioners had made 2 applications in I.A. No. 22 and 24 for impleading filed under Order 1 Rule 10 CPC and the same was allowed on 8.9.2011 and 20.4.2012 respectively. The learned counsel for the respondents contended that these proposed respondents who are in possession of the joint family properties and carried on the business cannot be accepted as the proposed respondents since the said applications for impleading are not at the relevant point of time. Considering all these aspects of the matter, the applications filed by the petitioners for impleading has been rejected on 13.02.2015 since it was after the lapse of 15 years from the date of filing the suit and the limitation is 12 years from the date of filing the suit which is barred by limitation.

I have heard both the learned counsels appearing for the parties and perused the entire records.

The question for consideration is as to whether the court has committed an error in rejecting the application for impleading the proposed respondents filed by the petitioners.? While answering the said question it has been examined that Order 1 Rule 10(2) of CPC enables the parties to make an application for impleading at any stage after proceedings and the said provisions shows that applications for impleading can be made at any stage before its pronouncement. This aspect has been dealt in Smt. Aswathamma Vs. H.M. Vijayaraghava, AIR 1999 Kar 21 : (1998) 5 KarLJ 320 ; Ramader Appala Narasinga Rao Vs. Chunduru Sarada, AIR 1976 AP 220 : (1976) 1 APLJ 148 and judgment in RSA No. 5972/2012 and connected matter between Surekha and Others case. What is to be understood as to phrase at any stage of proceedings, the Court has been conferred with power to order that the name of a party or the person who ought to have been made a party, has not been joined such person shall be impleaded, till the disposal of the suit. The petitioners who filed the suit for partition and separate possession have rightly said in the plaint that the LRs are in possession and carrying on the business which are joint family properties. For the purpose of partition entire properties of the joint family are to be included. The reasons assigned by the Court in rejecting the application I.A. No. 42 under Order 1 Rule 10 of CPC, is while cross examining of DW 1 he noticed the fact that LR''s of D1 and family members of D2 who carry on the business which are joint family properties in which the plaintiffs have got share. If it is considered naturally making of the application should have been well within the time. Taking the written statement of the defendant in 2001, at para 82 he has given the particulars of the companies which are being are the joint family properties though the particulars are provided in the year 2001 itself there was no step taken to implead.

At this juncture it is relevant to note that to present on record the decision is left to the persons who have filed the suit. Plaintiff petitioners state that the particulars provided in the written statement does not serve the purpose. Hence he has filed impleading applications.

The learned Judge while rejecting the application has given reasons and held that the proposed respondents are not necessary parties and the application has been filed with mala fide intentions of protracting the case after 15 years. It is appropriate to refer to the order of this Court in W.P. Nos. 4913 and 4914/2014 where similar applications filed for amendment were rejected since it was filed after the lapse of 13 years. The unexplained delay is too long. Under Article 110 of the Limitation Act, suit by a person who is excluded from the joint family property, to enforce the right, the limitation is 12 years and the said application was filed after 13 years. Further direction was issued to the trial court to dispose of the matter as early as possible within the outer limit of March, 2015. The case is 15 years old and the persons who have filed this suit have made number of applications, earlier in I.A. Nos. 22 and 24 which were allowed and now I.A. No. 42. The impleading and amendment shows that applications are filed only to protract the case and nothing else. When the persons approach the court they have to co-operate to see that the matter is disposed of at an early date on the basis of priority. Judgment of this Court reported in Akka Bai and another Vs. Gowrawwa, AIR 1990 Kar 278 : (1991) 4 KarLJ 756 referred at para 4 to 6 where it has been held addition of parties, application by transferee pendente life at appellate stage unexplained delay of 5 years, the application filed almost at the very end of litigation is liable to be rejected on the ground of delay and latches. In another judgment reported in M/s. C. Doctor and Company Ltd. and another Vs. M/s. Belwal Spinning Mills Ltd., AIR 1995 All 19 , where it has been held at para 2 as follows

"... It is to be noted that a person shall not be impleaded or any amendment adding some defendant or some claim in a plaint which has become barred by limitation, shall not be allowed.

Another judgment reported in Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Another, AIR 2004 SC 173 : (2003) 8 JT 478 : (2003) 9 SCALE 393 : (2004) 1 SCC 191 : (2003) 5 SCR 290 Supp where it has been held as follows:

"It is not disputed that the present petitioner purchased the property during the pendency of the suit and without seeking leave of the Court as required by S. 52 of the Transfer of Property Act, The petitioner being a transferee pendente lite without leave of the Court cannot, as of right, seek impleadment as a party in the suits which are long pending since 1983. It is true that when the application for joinder as party to enable him to protect his interest. But in instant case, the trial court has assigned cogent reasons for rejecting such rejoinder stating that the suit is long pending since 1983 and prima facie the action of the alienation does not appear to be bona fide. The trial Court saw an attempt on the part of the petitioner to complicate and delay the pending suits."

"In Rabindra Nath Samuel Dawson Vs. Sivakasi and Others, AIR 1972 SC 730 : (1973) 3 SCC 381 : (1972) 4 UJ 595 , the Hon''ble Supreme Court held that A person who has resisted to the objection regarding non-joinder of parties at the initial stage and also at the revisional stage and run the risk of proceeding with the suit without impleading the necessary parties, cannot be said to act in good faith because he cannot be said to have acted with due care and attention. Consequently such person will not be entitled to benefit of Section 14 of the Act of excluding the time spent by him in that proceeding in a fresh suit"

In the light of the above referred judgments and also in view of the provisions under Order 1 Rule 10(2) of CPC what I have understood is that the application has to be made at any stage or time before the conclusion or before the pronouncement of the order does not mean that he could file such application even after it is barred by limitation. In the instant case, application is not filed well within time under Article 110 of Limitation Act, 12 years is permissible for impleading but it is filed after the lapse of 13 years made for impleading. The reasons assigned by the trial court are justifiable sound and proper and there is no irregularity or infirmity in the order. The Trial Court has rightly rejected the application filed in I.A. No. 42 as the petitioners have failed to take proper care and caution to implead all the necessary and proper parties at appropriate time and thus taken the risk of proceeding without the presence of those parties.

Accordingly, petitions are rejected.