Md. Abdullah Sk vs Jyostna Bewa & 3 Ors

The facts as noted in the instant revision application is that one Shri Lutfur Rahman Khandakar filed a suit before the Assistant Deputy Commissioner at Tura which was registered as Title Suit No. 4 of 1997 for declaration and for permanent injunction against the defendant to restrain him from interfering in the management of the Dargah Sharif. During the pendency of the suit, the original plaintiff died and was substituted by Smti Jyostna Bewa (Respondent No. 1 herein). The case thereafter on the point of jurisdiction travelled up to the Supreme Court and finally was remanded to the Court of the Assistant to Deputy Commissioner, Ampati and is presently pending trial. Respondents No. 2, 3 & 4 then claiming themselves to be the daughters of the deceased original plaintiff filed an application for their impleadment which was allowed by the trial Court by order dated 29.08.2017. Being aggrieved thereby the petitioner (defendant No. 1) preferred an appeal before the Court of the Additional Deputy Commissioner (Judicial) Ampati who vide judgment and order dated 06.12.2017 upheld the order of the Trial Court and further accepted the stand of the respondents 2, 3 & 4 as co-sharers of the suit property. As such, by the instant revision application the petitioner is before this Court challenging the above noted order.

I have heard Mr. A.S. Siddiqui, learned counsel for the petitioner, Mr. S. Sen, learned counsel for the respondent No. 1 and Mr. K. Paul, learned counsel for the respondents No. 2, 3 & 4.

Mr. A.S. Siddiqui, learned counsel submits that the suit was instituted as far back as 1997 and while the same was pending in the trial Court for framing of issues, the respondents No. 2, 3, & 4 filed an application before the trial Court for impleading themselves as additional plaintiffs in the suit. He submits that the said application was allowed by order dated 29.08.2017 and against the said order the petitioner had preferred an appeal before the Court of Additional Deputy Commissioner (Judicial), Ampati, South West Garo Hills who by order dated 06.12.2017 upheld the order of the trial Court and however came to a finding that the respondents No. 2, 3 & 4 are the 'sharers' and that the respondents ought to have been joined as plaintiffs to the suit.

Learned counsel submits that the impugned order was bad in law, inasmuch as, firstly the respondents No. 2, 3 & 4 had filed the application for impleading after a long gap of 20 years whereas there is a limitation of 90 days for filing such petitions. Counsel further submits that the appellate Court had acted beyond its jurisdiction in holding that the respondents No. 2, 3 & 4 as co-sharers without appreciating the fact that the claim of the respondents No. 2, 3 & 4 is disputed and that such a finding, could not have been arrived at without a proper inquiry to decide the issue. He submits that the impleadment and finding will virtually result in a de novo trial, even though the suit was instituted over 20 years ago and the impugned order being highly irregular and illegal has caused a grave miscarriage of justice apart from being without any jurisdiction.

Mr. S. Sen learned counsel for the respondent No. 1 in his submission has in fact supported the case of the petitioner and asserts that the impleadment by the trial Court and subsequent order of the appellate Court are unsustainable in law. He submits that the impleadment application should have been rejected outright, having been filed 20 years after the institution of the suit. He submits that this is not a case wherein the respondents No. 2, 3 & 4 had come to the knowledge about the pendency of the case recently, but the impleadment application itself reflects that the respondents, No. 2, 3 & 4 were well aware of the pendency of the suit from its inception and had chosen to implead themselves only after a preliminary notification dated 19.08.2016, had been issued by the Government of Meghalaya in respect of acquisition of a part of the property in question, for construction of the Indo-Bangla fencing. He draws the attention of this Court to Section 21 of the Limitation Act, 1963 and submits that the proviso to Section 21 (1) will not be available to the respondents No. 2, 3 & 4 as also Section 21(2), inasmuch as, there has been no addition or substitution owing to assignment or devolution of any interest during pendency of the suit, to enable the respondents No. 2, 3 & 4 to overcome the prescribed period of limitation. He further submits that the finding of co-sharer, as recorded in Para 33 of the judgment, of the appellate Court is beyond its jurisdiction as it has conclusively determined the rights of the newly impleaded respondents. Learned counsel has also referred to the case of Pankajbhai Rameshbhai Zalavadiya vs. Jethabhai Kalabhai Zalavadiya (Deceased) Through Legal representatives & Ors. reported in 2017 9 SCC 700 and submits that the plea of limitation is to be considered during the course of the trial. He therefore submits that the impleadment being illegal and the illegality being compounded by the appellate impugned order, the same is liable to be set aside and quashed.

Mr. K. Paul, learned counsel for the respondents No. 2, 3 & 4 submits that the grounds of challenge of the impugned order is to be strictly confined to the pleadings as made out in the petition and the submissions made before the trial Court and appellate Court by the petitioner. He submits that the respondent No. 1 having never assailed the order of impleadment passed by the trial Court or the order of the appellate Court is estopped from projecting their case, and the arguments as forwarded by learned counsel for the respondent No. 1 should be disregarded by this Court. He submits that notwithstanding the other facts of the case, the respondents No. 2, 3 & 4 have every right to be impleaded as they have vital interest in the suit property and in the matter as a whole, by virtue of being daughters of the other wives of the original plaintiff. With regard to the finding as recorded in Para 33 of the appellate judgment the learned counsel has not advanced any arguments and left this question open to be determined by this Court.

Having heard learned counsel for the parties it can be discerned easily that the main bone of contention is the impleadment of the respondents No. 2, 3 & 4 in a suit that was being contested by the petitioner and respondent No. 1 since the year 1997. This Court has examined the orders dated 29.08.2017 passed by the trial Court and 06.12.2017 passed by the appellate Court whereby the respondents No. 2, 3 & 4 have been allowed to be impleaded and where the appellate Court has gone a step further by holding that the respondents No. 2, 3 & 4 are 'sharers' and that they are interested and necessary parties. As per Order 1 Rule 10 (2) CPC the Court may at any stage of proceedings, order that parties be struck off or joined either as plaintiff or defendant to enable the Court to effectually and completely adjudicate upon and settle the question involved in the suit. However, this discretion is to be exercised according to reason and fair play.

In the instant case the respondents No. 2, 3 & 4 sought impleadment, 20 years after the suit had been instituted, which had been allowed by the Courts below. In this context it is to be noted that the said impleadment has to be viewed in a backdrop of the effect it would have, inasmuch as, the same was done after inordinate delay, and this will necessary mean Section 21 of the Limitation Act would apply. Another aspect which also deserves consideration is whether the appellate Court had acted in excess of jurisdiction in holding that the respondents No. 2, 3 & 4 were sharers in the suit property. On the first part, the case as cited by the counsel for respondent No. 1 i.e.

Pankajbhai Rameshbhai Zalavadiya vs. Jethabhai Kalabhai Zalavadiya (Deceased) Through Legal representatives & Ors. (supra) cannot be ignored. The relevant paragraphs i.e. Paras 20 & 21 are quoted herein below: -

"20. 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.

In view of the above, the impugned judgment of the High Court is set aside. The appeal is allowed. The trial court is directed to implead the legal representatives of deceased Defendant 7 and bring them on record, subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code, as well as under Section 21 of the Limitation Act, 1963, to be decided during the trial."

The law as laid down therefore by the above noted judgment, means that a party impleaded under Order 1 Rule 10 of Code of Civil Procedure, 1908 will however be subject to the question of limitation being decided during the course of the trial or at the time of the disposal of the suit. This being the stated position, the said impleadment of the respondents No. 2, 3 & 4 will be subject to the plea of limitation during the course of trial.

With regard to the other aspect, the appellate Court in Para 33 of the judgment has stated as follows: -

"33. It is seen that the Respondent Nos. 2 to 4 are the "sharers" of the original plaintiff since deceased. And, from the table of "shared" the said daughters/ Respondent Nos. 2 to 4 are the "sharers" as such the Respondents are also interested and necessary parties to the suit who ought to have been joined as Plaintiff to the suit and in view of the above discussion this Court is not inclined to interfere with the Order dated 29.08.2017 of the Ld. Lower Court for allowing the Respondents No. 2, 3 and 4 to be added as parties in T.S. 4 of 1997 as impleadment and addition of parties can be allowed at any stage. This is necessitated for the proper adjudication of the case and to avoid multiplicity of litigation."

The above finding in a matter where competing rights are yet to be ascertained in the suit before the trial Court, and while the claim of the respondents No. 2, 3 & 4 is still under dispute, in the opinion of this Court no such finding could have been returned by the appellate Court. This finding therefore being misplaced and beyond the scope of the appeal before the lower appellate Court is unsustainable and is accordingly set aside.

For the foregoing reasons, this revision application is allowed to the extent indicated above and further reiterated that the impleadment of the respondents No. 2, 3 & 4 as allowed by the trial Court, shall be subject to the plea of limitation as contemplated under Section 21 of the Limitation Act to be decided in the course of the trial.

Lower Court records to be transmitted back immediately.

No order as to costs.