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Judgment
F.M. Reis, J.—Heard Shri Ramani, Learned Counsel appearing for the petitioners, Ms. N. Pimenta, Learned Counsel appearing for respondents Nos. 1, 2 & 3 and Shri M. Salkar, learned Government Advocate for respondent no. 4.
Rule. Heard forthwith with the consent of the parties. Learned Counsel for the respondents waive service.
The above petition challenges the order dated 29/10/2010, whereby the claim put forward by the petitioners/defendants nos.1 to 4 in the suit filed by the respondent no.4 against respondents nos.1 to 3 came to be rejected essentially on the ground that such claim has not been filed within a period of four weeks from the date of the service of the summons.
The records reveal that the suit was filed by respondent no.4. The respondents nos.1 to 3 were not parties to the said suit. The petitioners, as such, had already filed their written statement in the said suit. Subsequently, respondents nos.1 to 3 filed intervention application in the suit filed by respondent no.4 which came to be allowed by order dated 1/07/2010 under Order 1, Rule 10(2) of the Civil Procedure Code. Thereafter, when the respondents nos.1 to 3 filed their written statement on 3/08/2010, the petitioners preferred the claim against the said respondents within a period of six weeks from the said date.
Shri Ramani, Learned Counsel appearing for the petitioners pointed out that the finding of the learned Judge to the effect that such claim should have been put forward within four weeks from the date of the original summons were served, is totally misconceived and cannot be accepted. Learned Counsel has taken me through the provisions of Order 8, Rule 23 of the CPC and pointed out that as the respondents nos.1 to 3 were not parties to the original proceedings the claim put forward by the petitioners was within the time prescribed therein. Learned Counsel, as such, submitted that the impugned order deserves to be quashed and set aside.
Learned Counsel appearing for the respondent nos. 1 to 3 has supported the impugned order. Learned Counsel has pointed out that respondents nos.1 to 3 had put forward their claim in respect of the suit property way back in the year 1982 before the Inspector of Land Surveys and, as such, the petitioners cannot claim that they had no knowledge about the claim of respondents nos.1 to 3. The Learned Counsel has further submitted that as the petitioners had knowledge of the claim of respondents nos.1 to 3, it was incumbent upon them to file their claim against respondents nos.1 to 3 within four weeks from the date of service of the summons. Learned Counsel further pointed out that on the basis of such knowledge it is evident that the claim put forward by the petitioners against the co-defenders/respondents nos.1 to 3 is barred by limitation. Learned Counsel further submitted that the learned Judge was justified to pass the impugned order. The Learned Counsel, as such, submitted that the impugned order is justified and, as such, no interference is called for in the impugned order.
Having heard the Learned Counsel and on perusal of the record, it is evident that when the written statement were filed by the petitioners, respondent nos.1 to 3 were not the defendants in the said suit. Respondents no.1 to 3 became co-defendants only pursuant to the order passed by the learned Judge on 1/07/2010. Immediately thereafter the written statement came to be filed by them. It is not in dispute that the petitioners filed their claim within a period of six weeks as provided under Order 8, Rule 35 of the Civil Procedure Code.
On perusal of Order 1, Rule 10(4) of the Civil Procedure Code, after the party is impleaded in the proceedings fresh summons are to be issued not only to the newly added parties but also to the other parties in the suit. Hence, the finding of the learned Judge in the impugned order that such claim is to be put forward within four weeks from the date of the original service of summons cannot be accepted. Considering the provisions of Order 8, Rule 35 of the Civil Procedure Code, I find that the claim put forward by the petitioners is within the time prescribed therein. The said respondents nos.1 to 3 became co-defendants only after said application for intervention was allowed. The petitioners were justified to file such claim only after the said respondents became co-defendants. The contentions of the Learned Counsel appearing for respondents nos.1 to 3 that the claim put forward by the petitioners is barred by law of limitation cannot be considered at this stage of the proceedings. The respondents nos.1 to 3 would be entitled to raise such contention in their pleadings disputing the claim put forward by the petitioners against them. All such contentions will have to be dealt with by the learned Judge after considering the material on record in accordance with law and not at this stage of the proceedings.
Considering the aforesaid facts and circumstances of the case, I find that the learned Judge was not justified to pass the impugned order dated 29/10/2010 which cannot be sustained. The claim put forward by the petitioners is to be accepted and the same will have to be dealt with by the learned Judge in accordance with law.
In view of the above, I pass the following order:
ORDER
(i) The impugned order dated 29/10/2010 is quashed and set aside.
(ii) The claim put forward by the petitioners vide Exhibit 26 against the respondents nos. 1 to 3 is admitted and the respondent nos. 1 to 3 are entitled to file their written statement/reply to such claim within six weeks from today.
(iii) Petition stands disposed of accordingly with no order as to costs.
(iv) Rule disposed of in the above terms.