Sawinder Singh vs Chanan Singh Virk and others

J.V. Gupta, J.—This petition is directed against the order of the trial Court dated 11th August, 1987, whereby the application filed on behalf of the Plaintiff (Petitioner) under Order 1 Rule 10, Code of Civil Procedure, was dismissed.

The Plaintiff filed a suit for possession against the Respondents, including Sardar Singh, Respondent No 9, on 1st August, 1988. The said Sardar Singh had died before the institution of the suit. When this position brought to the notice of the Plaintiff, he moved an application under Order 1, Rule 10, CPC, to implead his legal representatives namely, Angrez Singh. Teja Singh-his sons, and Shmt. Gurmeet Kaur, his widow as Defendants No. 9-A, 9-B and 9-C. This application was contested on behalf of other Defendants. The learned trial Court dismissed the application on the ground that since Sardar Singh had died long before the institution of the suit, it can not proceed against him. Consequently, the suit was dismissed against him but was ordered to continue against the rest of the Defendants.

The learned Counsel for the Petitioner submitted that the legal representatives of Sardar Singh ought to have been allowed to be impleaded as such under Order 1 R. 10, CPC, as they were necessary parties to the suit. On the other hand, learned Counsel for the Respondents/ Defendants contended that since the suit was barred by time on the day the application under O 1, R. 10, CPC, was filed against the legal representatives of the deceased, the suit had been rightly dismissed against them. In support of this contention, he referred to Jogindar Singh and Others Vs. Krishan Lal and Others, , and Shmt. Bhagwanti v. Faqir Chand Aggarwal (1975) 77 P. L. R. 514.

After hearing the learned Counsel for the parties I find that the trial Court has dismissed the application not on the ground that the suit was barred by time against the legal representatives of the deceased. As a matter of fact, this question was never agitated before the trial Court, nor has the Court gone into this matter. It was held in Joginder Singh''s case (supra) that it is only if the suit against the newly-added party is found to be within time that there would be any purpose in allowing it to be impleaded or substituted. Therefore, the trial court must decide the question of limitation before or at the time of directing the impleading of legal representatives of the deceased who died before the institution of the suit, and also deside the question arising under proviso to Section 21(1) of the Limitation Act if the same is invoked by any party before actually impleading any such legal representative.

Consequently, this petition succeeds, the impugned order is set aside. The application under O 1, R. 10, CPC, be decided afresh keeping in view the above observations.

The parties, through counsel, are directed to appear before the trial court on 14th February, 1989.