Modugula Seshireddy and Modugula Satyanarayana vs Vuyyuru Subba Reddy and Others

B. Subhashan Reddy, J.—This C.R.P. is directed against the order dated 16-8-1993 passed in LA. No. 680/93 in O.S. No. 144 of 1986 on the file of the Court of the Additional Subordinate Judge, dismissing the imp lead petition filed under Order I, Rule 10 C.P.C. While the plaintiff is the 1st petitioner, the 2nd petitioner is the proposed plaintiff No. 2.

The 2nd petitioner had instituted a suit representing the plaintiff as a general power of attorney. The plaintiff, Modugula Sheshireddy, is the natural son of the proposed second plaintiff. A suit was filed on his behalf seeking the relief of possession and profits of the suit schedule properties on the premise that Modugula Sheshireddi was the adopted son of M. Subba Reddy and that the adoption took place in the year 1973 and that Subbareddi died in the year 1976 while his wife predeceased him; that the properties were inherited by late Subbareddi through his uncle as his uncle''s daughter, M. Lakshmidevamma died intestate; that as contemplated u/s 15 of Hindu Succession Act, 1956, it reverted back to his heirs and that is how M. Sheshi Reddy, as the adopted son of Subbareddi had succeeded to the properties and was entitled to the relief sought for. The 1st defendant had been contesting the suit on the ground that Lakshmidevamma (his wife) had executed a Will dated 2-11-1968 bequeathing the properties to him.

Later, additional written statement was filed by the 11th defendant stating that he came to know that Subba Reddy had executed registered Will dated 4-3-1975 bequeathing all his properties to M. Satyanarayana Reddy, the 2nd petitioner herein. In view of the said additional written statement, the 2nd petitioner filed an application under Order I, Rule 10(1) of CPC read with Section 151 CPC seeking his impleadment on the ground that even if the Will dated 2-11-1968 said to have been executed by Lakshmidevamma in favour of the 1st defendant is upheld, if not the 1st plaintiff, he gets the rights over the schedule lands by virtue of the subsequent Will dated 4-3-1975 executed by M. Subba Reddy, This application was resisted by the defendants and the contention raised by the defendants that impleadment petition cannot be allowed was upheld by the lower Court. Hence, this revision.

The point for consideration is whether Order I Rule 10 CPC application filed for impleadment of the 2nd petitioner as the 2nd plaintiff can sustain?

Rule 10 of Order I CPC reads as follows:

"Rule 10. Suit in name of wrong plaintiff:- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. Court may strike out or add parties.

(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability with out his consent. The Lower Court held that the essential ingredient of Order I Rule 10(1) CPC was not satisfied. It held that it is not a case where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff and rejected the impleadment petition. While doing so, the lower Court also relied upon Section 21 of Limitation Act, 1963 holding that the impleadment petition was time-barred construing the plea of addition of 2nd plaintiff as one instituted a suit itself......"

Mr. T. Veerabhadrayya, the learned Counsel for the petitioner has relied upon decisions rendered in Thakurdas v. Dagdulal AIR 1941 Nag 178., AIR 1939 170 (Privy Council) ., and J.H.Krishnamurthy v. Mir Zamin Ali 1983 (2) ALT 27 : 1983 (2) An.W.R. 82 : 1983 (2) APLJ15. , while Mr. Parabrahma Shastry, the learned Counsel, appearing for Mr. K. Jayakumar, for the respondents relied upon the decisions in Maung Shwe Paw v. Ma Pan Zi AIR 1915 LB 45. Ramesh v. Municipal Corporation of Greater Bombay AIR 1992 SCW 846. and P. Kondakh v. P. Guruvalu 1979 (1) An.W.R. 18 : 1978 (2) APLJ 201.

In Thakurdas v. Dagdulal AIR 1941 Nag 178., the proposition held was that if a benamidar dies, even if no application has been filed under Order 22 Rule 1 CPC, the suit does not abate as the real owner can file an application invoking either Order I Rule 10(2) or Section 151 CPC, at any stage, provided no injustice or inconvenience is caused to the other side and provided the same suit is continued and different cause of action and different plea are not set up. The mere fact that an enquiry independent of and different from the original suit has to be made, does not mean that the suit is converted into one of a different character. In AIR 1939 170 (Privy Council) ., it was held that one or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs if they will consent or as co-defendants if they will not. It was also held that nor indeed would it matter that a wrong person had originally sued though he had no cause of action, that once all the parties are before Court, the Court can make the appropriate order and should give judgment in favour of all the persons interested whether they be joined as plaintiffs or defendants. In the said case, a person executed a mortgage in favour of a firm. Subsequently, some of the partners retired assigning their interest in favour of the remaining partners by unregistered deed. The remaining partners brought a suit on the mortgage and as objection was raised as to the maintainability of the suit, the plaint was amended bringing on record, the retiring partners as defendants. It was held that it would have been more satisfactory that the retiring partners should have been made as co-plaintiffs instead of co-defendants, but even otherwise, as whole of the necessary parties were before the Court, appropriate relief could be granted. In J.H. Krishnamurthy v. Mir Zamin Ali (3 supra) this Court held that in a suit filed by the benamidar, later during the course of proceedings, when it is pleaded by the defendants that the plaintiff is only the benamidar and that the real owner was some one else and the said real owner can file the impleadment petition to be added as the plaintiff and that the same is perfectly in consonance with either under Order I Rule 10 C.P.C. or u/s 151 CPC.

In Maung Shwe Paw v. Ma Pan Zi (4 supra), it was held that neither Order I Rule 10 nor any other provision of the CPC authorises a Court, on finding that the plaintiff must fail, to import into the case as co-plaintiff, a person who had a different cause of action inconsistent with that of the original plaintiff and who moreover has not paid Court-fees on the new claim. In Ramesh v. Municipal Corporation of Greater Bombay (5 supra) what was held was that a licensor on whose land the licencee put up structures and whose demolition was ordered and in a suit filed by licencee with regard to protection of that structure, the licensor being interested only in land and the demolition again being only with regard to the structures, he cannot be added as a party to the proceedings under Order I Rule 10 CPC. In P. Kondaiah v. P. Guruvalu (6 supra), it was held that a partition suit inter se members of one branch, the members of other branch who are no way concerned with the said partition dispute, cannot be added as parties. These cases have got no relevance.

The lower Court while rejecting the impleadment petition has laid unnecessary stress on the provision of law quoted. It is not very material as to whether the relief sought for for impleadment comes within the purview of either sub-rule (1) or sub-rule (2.) of Rule 10 of Order I CPC. It is not the form of the application, but the substance of it which merits consideration. Here isa case where the 1st plaintiff laid a suit on the ground that he is entitled for intestate succession on account of death of late M. Subbareddy while the 1st defendant had set up a Will said to have been executed by late Lakshmidevamma. The 11th defendant who had filed his written statement later pleads that Subbareddy had executed Will in the year 1975 and that if at all the property devolves, it devolved by testamentary succession and not by way of intestate succession as pleaded by the 1st plaintiff. In the circumstances, it was perfectly correct for the proposed 2nd plaintiff to seek a decree in his favour in the event of unsustainability of the claim of the 1st plaintiff. There is absolutely no inconsistency in the said pleadings. In fact, in order to avoid multiplicity of the proceedings and to give a quietus, such a pleading has to be accepted. The subject matter of impleadment petition falls under sub-rule (1) of Rule 10 of Order I of CPC and if not, it certainly falls under sub-rule (2) of Rule 10 of Order I of CPC. Either way it does not matter as the Court has got to see the substance and not the form and misquotation of law cannot defeat the real claim, if it is traceable to the other provision of law even if it is not quoted. Even with regard to limitation aspect contained u/s 21 of Limitation Act, the contention of the learned Counsel for the respondents is unsustainable. In Munshi Ram v. Narsi Ram 1993 (2) SCC 8. the provision relating to Section 21(1) of Indian Limitation Act was considered vis-a-vis Order I Rule 10 CPC and it was held by the Supreme Court that where there was a bonafide msitake in not impleading a person as a party and when a fact comes to the notice during the pendency of the application, the said person can be made as a party. This proposition laid down by the Supreme Court has got bearing on the facts of this case as until the 1lth defendant filed his written statement, the 2nd plaintiff was unaware of the execution of the Will by late Subbareddy and on coming to know of the same, the impleadment petition was filed and that is a bona fide action.

In view of what is stated supra, Mr. Modugula Satyanarayana Reddy be impleaded as 2nd plaintiff allowing LA. No. 680/93 in O.S. 144/1986 on the file of the Lower Court. The CRP is allowed accordingly. No costs.