THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
CIVIL REVISION PETITION No.2236 of 2019
ORDER:
This revision is filed challenging the order dated 13.08.2019 in I.A.No.879 of 2019 in O.S.No.389 of 2012 passed by the II Additional District Judge, Ranga Reddy District.
2. The petitioners are plaintiffs in the suit O.S.No.389 of 2012 on the file of the Principal District Judge, Ranga Reddy District at L.B. Nagar, filed for partition, separate possession, cancellation of sale deed and rectification of pahanies.
3. An application in I.A.No.879 of 2019 was filed by the petitioners, under Order I Rules 10 CPC, to implead the proposed respondents No.9 to 11 as defendants No.9 to 11 in the suit. In the affidavit averments, it is stated that the respondent/defendant No.4 filed his counter and written statement and thereafter, issues were framed and trial started. The plaintiff's evidence was concluded and the matter was adjourned for defendants' evidence. The defendant No.4 filed his Chief as D.W.1 along with list of documents. After going through the documents filed by the defendant No.4, the petitioners noticed the death certificate of the defendant No.5 and when questioned, during the cross-examination of the defendant No.4, as D.W.1, he admitted that he did not file the details of the legal heirs of the defendant No.5. The petitioners filed applications to reopen and recall the evidence of petitioner No.3/plaintiff No.3 as P.W.2 and another application to receive documents viz. I.A.Nos.389, 399 and 400 of 2019, which are pending disposal. Further the petitioners filed a memo seeking a direction to defendant No.4 to furnish the details of the legal heirs of the defendant No.5 for taking steps. In response, the defendant No.4 2 filed a memo stating that he has no knowledge of the legal heirs of the defendant No.5. The proposed defendants No.9 to 11 are mother, father and brother's son of the deceased G. Ashok Reddy and as such, implead petition is filed.
4. In the counter filed by the defendant No.4, it was stated that a false suit for partition is filed; a detailed written statement was filed in 2014 denying the allegations in the plaint; the petitioners/plaintiffs evidence was closed and he was examined as P.W.1; the suit is coming for arguments; a plea was taken in the written statement in page No.7 that the suit against the dead person is nullity; in spite of filing the written statement in 2014, the petitioners/plaintiffs deliberately and intentionally did not take any appropriate steps. Moreover, the petitioners' side evidence has been closed and the defendant No.4 was examined as D.W.1. The petition is without merits.
5. The Court below dismissed the application by recording that the suit was filed against a dead person. The written statement was filed by the defendant No.4 on 10.09.2014, wherein it was pleaded in page No.4 that the defendant No.5 died on 10.06.2003 and as per Hindu Law, his mother is a legal heir and successor as such his mother's name was mutated in the revenue record and also stated that the suit against the dead person is nullity. The Court below further recorded that in respect of the above pleadings, no steps were taken and only after the suit was coming up for arguments, the present petition is filed. The Court below held that the petition is barred under Section 137 of the Limitation Act.
6. Mr. Muhammad Vequar Hussain, learned counsel for the petitioners, submitted that the death of the defendant No.5 was not 3 known at the time of filing of the suit. Inadvertently, the suit was filed against a dead person. On coming to know about the details of the legal heirs of the defendant No.5, an application was filed for impleadment. As the defendant No.5 did not expire during the pendency of the suit, the provision under Order 22 CPC is not applicable. An application under Order I Rule 10 CPC is maintainable. Learned counsel for the petitioners relied upon the following decisions:
DALMIYA INDUSTRIES LTD. v. JAGMOHAN GUPTA1 PANKAJBHAI RAMESHBHAI ZALAVADIA v. JETHABHAI
KALABHAI ZALAVADIYA2; STATE OF KERALA v. V. SRIDEVI3; VIDUR IMPEX AND TRADERS PVT. LTD. v. TOSH APARTMENTS PVT. LTD.4
7. Per contra, Mr. K. Janardhan Reddy, learned counsel for the respondent No.4, submitted that the suit was filed in the year 2012, written statement was filed on 10.09.2014 and in para 4, the death of the defendant No.5 was pleaded. The petition is filed in the year 2019 to drag the suit proceedings and at the fag end of the suit, when the suit is coming for arguments.
8. Heard both sides.
9. Even if Order 22 CPC is not applicable in the facts and circumstances of the case, this Court is of the view that the petitioners ought to have taken immediate steps to implead the legal heirs of the defendant No.5 after written statement was filed by the defendant No.4 by invoking Order 1 Rule 10 CPC. The impleadment application is filed in 2019 whereas the death of the defendant No.5 was pleaded by 1 ILR (2007) II DELHI 715 2 (2017) 9 SCC 700 3 AIR 2000 SCW 4907 4 (2012) 8 SCC 384 4 the defendant No.4 in his written statement filed on 10.09.2014. After lapse of five years, the instant application is filed. The petitioners are not only negligent but, as it appears, deliberately waited until the fag end of the suit proceedings and filed the instant petition. The judgments cited by the counsel for the petitioners referred to above are not applicable to the facts of this case. Further, there is no controversy with regard to the maintainability of the implead petition under Order I Rule 10 CPC. On facts, it is found that the petition in I.A.No.879 of 2019 lacks merits. This Court does not find any illegality or error in the order passed by the Court below.
In view of the above observations, the civil revision petition is dismissed as being devoid of merits. Pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
__________________ B. VIJAYSEN REDDY, J September 9, 2021 DSK