Nahar Singh vs Kaku Ram

R.N. Mittal, J.

This judgment will dispose of Civil Revisions Nos. 2951 of 1984 and 11 of 1985. The facts in the judgment are being given from Civil Revision No. 2951 of 1984.

The facts are that Ishar Singh, father of the plaintiffs, mortgaged a house with Faqiria, predecessorininterest of the respondents, vide mortgage dated 6th January, 1953, for a consideration of Rs. 1,000/. The plaintiffs instituted a suit for redemption of the house on 5th January, 1983. The defendants filed a written statement on 30th July, 1984, and inter alia pleaded that some of the legal representatives of Faqiria had not been impleaded as defendants. The plaintiffs then made an application under Order 1, Rule 10 read with Order 6, Rule 17, Code of Civil Procedure, for impleading Subhash Chander, Kalu Mall, sons of Kaku Ram, Vijay Kumar, Rakesh Kumar sons of Piara Lal, Sant Ram and Bintu sons of Hukam Chand, residents of Mohalla Matarani, Khanna. The application was contested by the defendants. It was dismissed on the ground that it would relate back to 5th January, 1983, the date of institution of the suit, and thus material prejudice would be caused to the newly added parties. The plaintiffs have come up in revision to this Court.

It is contended by Mr. Sharda, learned counsel for the petitioners, that the suit should not be defeated by reason of nonjoinder of parties. According to him, in that situation, the amendment should have been allowed by the trial Court.

On the other hand, Mr. Palli, learned counsel for the respondents, has urged that there is no fault in the order. But if Subhash Chander etc. are ordered to be impleaded as parties, the suit be deemed to have been instituted against the newly added parties on the day when they are served.

I have duly considered the arguments. Subrule (2) of Order 1, Rule 10, Civil Procedure Code, provides that the Court may at any stage of the proceedings, order that the name of any person, who ought to have been joined says that subject to the provisions of Section 22 of the Limitation Act, the proceedings against any person added as a defendant shall be deemed to have begun only on the service of the summons. In view of the aforesaid provision, the plaintiffs should have been allowed to add Subhash Chander etc. heirs as defendants. The question as to whether the suit is within time or not against the newly added defendants should be gone into at the time of final decision of the suit. The newly added defendants shall be at liberty to raise the objection of limitation in the written statement.

The facts in Civil Revision No. 11 of 1985 are similar and no new argument has been raised in it.

For the aforesaid reasons, I accepted the Revision Petitions and direct the trial Court to allow the plaintiffs to amend the plaints and implead the persons mentioned in the application for amendment as defendants in the suit. This will be subject to the payment of Rs. 150/ as costs in each case. The costs in the Revision Petitions shall be the costs in the cause. The parties are directed to appear in the trial Court on 5th August, 1985.