Dalmiya Industries Ltd. vs Shri Jagmohan Gupta And Ors.
2006 Latest Caselaw 426 Del

JUDGMENT

Anil Kumar, J.

Page 1334

IA No.6477/1993

1. This is an application by the plaintiff/applicant under Order 1 Rule 10 of the Code of Civil Procedure for impleading Sh.Arun Kumar Jain, s/o.Shri Bimal Pershad Jain, r/o.D-1083, New Friends Colony, New Delhi, karta of Bimal Pershad Jain and Sons, HUF.

2. Plaintiff contended that he has filed suit for specific performance of agreement to sell dated 19.1.1983 in relation to property bearing Municipal Nos.F-7/1 to 4 and F-7/8 to 11 admeasuring 9790 sq. feet. The plaintiff contended that the cause of instituting the suit for specific performance arose on 18.2.1992 when defendant No.1 issued the notice allegedly terminating the agreement to sell.

3. The plaintiff, therefore, filed the suit for specific performance making Sh.Bimal Pershad Jain as defendant No.2 (ii) as party to the suit in the plaint Page 1335 dated 15.12.1992. After the institution of the suit the notices were issued to the defendants. On the summons issued, from the service report dated 2.4.1993, it transpired that Sh.Bimal Pershad Jain had expired even before the institution of the suit on 3.8.1991.

4. The plaintiff applicant contended that despite due diligence on his part he could not ascertain about the demise of defendant No.2(ii) prior to the institution of the suit and in the circumstances he has sought impleadment of Sh.Arun Kumar Jain, s/o.Sh.Bimal Pershad Jain who had become the karta of Bimal Pershad Jain and Sons, HUF and deletion of the name of Sh.Bimal Pershad Jain who expired on 3.8.1991.

5. The plaintiff has relied on , Stephen Laslie Victor D'Souza and Ors. v. Stanley Antony D'Souza and Ors. , Jaswant v. The Financial Commissioner and Ors. and , Karuppaswamy and Ors. v. C.Ramamurthy to contend that a plaintiff is entitled to invoke proviso to Section 21(1) of the Limitation Act,1963 on filing a suit against several defendants, one of which is already dead when the suit was filed. If a mistake was bonafide and plaintiff became aware of the defendant's death much later on, the appropriate parties can be imp leaded.

6. The application is contested by defendant No.1 contending that the application under Order 1 Rule 10 of the Code of Civil Procedure is not maintainable as the suit has been filed against a dead person and application cannot be filed for substitution of the legal representatives of deceased defendant who had died prior to the institution of the suit. The defendant has refuted the allegations made by the applicant/plaintiff in the plaint on merits also.

7. In support of the plea opposing the application under Order 1 Rule 10 of the Code of Civil Procedure, the non applicant has also relied on , The Official Liquidator High Court, Bombay v. Taru Jethmal Lalvani and Ors. and 110 Indian Cases, 281, Roop Chand v. Sardar Khan.

8. In Stephen Laslie Victor D'Souza (Supra), relied by the plaintiff/applicant, it was held that a plaintiff is entitled to invoke proviso to Section 21(1) of the Limitation Act,1963 on filing a suit against several defendants one of which is already dead when the suit was filed, if the mistake of non impleadment was bonafide and plaintiff became aware of the defendant's death much later on. It was held that the appropriate parties can be imp leaded and the suit against them will be from the date of institution of the suit. It was held that Section 21 of the Limitation Act, 1963 states about effect of substituting or adding new plaintiff or new defendant and proviso to Section 21 states Page 1336 that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.

9. A Division Bench of Punjab and Haryana High Court in the matter of Jaswant (Supra) had rejected the contention that an application for impleading of legal representatives of a person who had died prior to the institution of the writ petition would not be competent under Order 1 Rule 10 of CPC and such an application shall be permissible only under Order 22 Rule 4 of the Code of Civil Procedure. It was held that it is appropriate to delete the name of a deceased person which possibly cannot remain in the array of parties and to implead a person in his place and such an application shall be competent. The relevant observations of the Court are as under:-

?The application filed under Order 1 Rule 10 of the Civil P.C is, thus, competent. However, even if the matter falls within the provisions as contained in Order 22 Rule 4 of the Civil P.C the same in the facts and circumstances of the case would not make any difference because we have already held that the mistake so as not to implead the legal representatives of Kansi Ram was on account of bonafide mistake and if that be so then proviso to Section 21(1) of the Limitation Act would be attracted. The Apex Court in 'Ramprasad Dagaduram v. Vijay Kumar Motilal , observed as follows:-

"The Court has power to add a new plaintiff at any stage of the suit, and in the absence of a statutory provision like S. 22 the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted. But the policy of S. 22 is to prevent this result, and the effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party, see Ramsebuk v. Ramlal Koondoo (1881) 2nd 6 Cal 815. The rigour of this law has been mitigated by the provision to S. 21(1) of the Indian Limitation Act, 1963, which enables the Court on being satisfied that the omission to include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date."

10. The Apex Court in the case of Karuppaswamy (Supra) had held that a plaintiff who became aware of the defendant's death from remarks on the written summons if seeks impleadment of legal representatives of defendant promptly thereafter is entitled to invoke the proviso to Section 21(1) of the Limitation Act. It was held that the proviso to sub Section (1) of Section 21 is in line with the spirit and thought of some other provisions of Part III of the Act such as Section 14 providing exclusion of time of proceeding bonafide in Page 1337 Court without jurisdiction, when computing the period of limitation for any suit and Section 17(1) providing a different period of limitation starting when discovering a fraud or mistake instead of the commission of fraud or mistake. Although it was observed that while invoking the beneficent proviso to sub Section (1) of Section 21 of the Act an averment that a mistake was made in good faith by impleading a dead defendant in the suit should be made and the court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith.

11. The precedents relied on by the defendant are apparently not applicable to the disputes in the present matter. In Official Liquidator High Court Bombay (Supra) a Division Bench of Bombay High Court in a company matter had held that in case of misfeasance summons taken out against several respondents one of whom was already dead and thereafter application for bringing on record heirs of deceased person made seven years after knowledge of death would be barred under Article 137 of the Limitation Act. This is apparently distinguishable in the facts and circumstances of the present plaintiff because the application for impleadment was filed on 19.7.1993 whereas the suit was filed in December, 1992 and the defendant No.2 (ii) Sh.Bimal pershad Jain had expired on 3.8.1991. The ratio of Anr. precedent, Roop Chand (Supra) relied on by the learned counsel for the defendant No.1 is also not applicable to the present facts and circumstances. It was held that the provision of Order 22 of the Code of Civil procedure will not apply in case of a party which had died even before the institution of the suit.

12. It is obvious that the provision of Order 22 will not be applicable as on the demise of a person who is a party to the suit if his LRs are not brought on record and right to sue does not survive to the surviving parties alone, the suit or proceedings abates after 90 days of the date of death of the deceased party. The abatement can be set aside on sufficient cause being shown, as prescribed under Order 22 rule 10 of Code of Civil Procedure for setting aside the abatement. If a party to the suit has already died even before the institution of the suit, the provisions of Order 22 of the Code of Civil Procedure will not be applicable. However, if the mistake is bonafide then the application to implead the LRs of such a person can be entertained and such a person will be deemed to be imp leaded from the date of the institution of the suit. Under proviso of Section 21(1) of the Limitation Act,1963, if the mistake is bona fide then on the proof being shown, it can be held that the suit will be deemed to be instituted even against such persons on the date the suit is filed against other persons.

13. Order1 Rule 10 has been expressly provided in the Civil Procedure Code to meet with situations so as to implead all the parties which may be effected by any litigation so that the rendering of justice is not hampered. Plaintiff is dominus lIT is and he is bound to sue every possible adverse claimant in the same suit whom he wishes to proceed under Order 1 Rule 3, to avoid Page 1338 multiplicity of suit and needless expenses. All persons against whom the right to relief is alleged to exist may be joined as defendants. Even the Court may at any stage of the suit direct addition of parties. A party can be joined as defendant even though the plaintiff does not think that he has any cause of action against him. Rule 10 specifically provides that it is open to the Court to add at any stage of the suit a necessary party or a person whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. Sub-rule (2) of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touchstone of Order 1 Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.

14. In order to ascertain whether a person is a necessary party or not what is to be seen is whether in absence of such person, conflicting decrees may be passed by the Court. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled. The question to be settled must be a question in the action which cannot be effectually and completely settled unless he is a party. A line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights.

15. Plaintiff has claimed a decree of specific performance against Shri Bimal Persad Jain who died even before the institution of the suit. Whatsoever rights, Shri Bimal Pershad Jain had devolved upon Sh.Arun Kumar Jain, s/o.Sh.Bimal Pershad Jain who had become the karta of Bimal Pershad Jain and Sons, HUF. Absence of Shri Arun Kumar Jain can lead to conflicting decrees. Shri Arun Kumar Jain in the facts and circumstances is a necessary party as in his absence there is a possibility of conflicting decrees being passed.

16. The second question which needs consideration is whether non impleadment of Shri Arun Kumar Jain was for bona fide reasons. The applicant/plaintiff had contended that he had no knowledge about the death of Shri Bimal Pershad Jain when the suit for specific performance was instituted and therefore, Shri Bimal Pershad Jain was imp leaded as a party though he had died before the date of the institution of the suit. The learned counsel for non applicant has strongly opposed any relief to the applicant/plaintiff under proviso to section 21(1) of the Limitation Act,1963 on the ground that Anr. suit for possession was filed by the defendant no.1 and the fact pertaining to the death of Shri Bimal Pershad Jain could be ascertained from the plaint of the other suit.

Page 1339

17. The non applicant, however, has failed to give the particulars of other suit as to when the other suit was instituted and when the notices/summons of the other suit with the copy of the plaint were served on the plaintiff. The present suit was filed on 15th December,1992 and the application for impleadment of Shri Arun Kumar Jain was filed on 19th July,1993 after coming to know from the service report of the summons which were sent in the name of Shri Bimal Pershad Jain that he has died. The counter claim in the present suit for recovery of possession was filed by the defendant no.1 on 15th January,1993. No other facts have been disclosed by the defendant no.1 and other defendants which would show that the plaintiff was aware of the death of Shri Bimal Pershad Jain prior to filing of the suit.

18. From the above facts the probable inference is that the plaintiff was not aware of the death of Shri Bimal Pershad Jain, prior to the institution of suit and after coming to know about the death of Shri Bimal Pershad Jain, the application for impleadment of his legal representative, Shri Arun Kumar Jain was filed without much delay. Therefore, non impleadment of the defendant no.2 (ii) was for bona fide reasons in the facts and circumstances.

19. Considering the totality of facts and circumstances and for the reasons stated hereinabove, the application is allowed and name of Shri Bimal Pershad Jain defendant no.2 (ii) is deleted and in his place Shri Arun Kumar Jain is imp leaded as defendant no.2 (ii). Amended memo of parties be filed. IA No.7282 and 7416/1994

1. These are applications by the plaintiff/applicant to substitute Sh.Dinesh Kumar Jain, S/o. Sh.Trilok Kumar Jain, r/o.D-423, defense Colony, New Delhi-110024 on the ground that defendant No.2(iii) had died and the plaintiff came to know about the date of death of Sh.Trilok Chand Jain on 18.7.1994 from the service report and consequently the substitution of the LRs of deceased Trilok Chand Jain is prayed and plaintiff has also sought condensation of delay in filing the application.

2. The plaintiff has also filed an application under Section 5 of the Limitation Act seeking condensation of delay in filing the application for bringing on record the LRs of deceased defendant No.2 (iii) on the ground that he came to know about the legal representative of defendant No.2 (iii) only on 2.8.1994 and the application for substitution and for condensation of delay was filed on 10th August,1994.

3. The application is contested by defendant No.1 contending that the plaintiffs were aware of the death of Sh.Trilok Chand Jain defendant No.2 (iii) and the plaintiff knowingly, intentionally and deliberately did not make the LRs of said defendant as a party to the suit. It was contended that suit No.1975/92 was filed prior in time and the legal representative of deceased defendant no.2(iii) was made a party and despite that he has not been made a party to the present suit. It was contended that the suit against the dead persons is liable to be dismissed without any further adjudication and that the defendants have already filed an application for rejection of the plaint.

4. The reply to the application dated 10th August,1994, was filed on 19th August,2002. In the reply it has been contended that the plaintiff was aware Page 1340 of the death of the Shri Trilok Chand Jain as Anr. suit for recovery of possession was filed, however, no where it was disclosed as to when the Anr. suit for recovery of possession was filed and when the plaintiff were served with the summons and the copy of Anr. suit for recovery of possession was delivered to the plaintiff which could have given knowledge to the plaintiff about the death of the defendant no.2 (iii). Even in the reply to the application, the date of death of the defendant no.2 (iii), Shri Trilok Chand Jain has not been given.

5. After the application for substitution of legal representative of deceased defendant no.2 (iii), Shri Dinesh Kumar Jain was filed on 10th August,1994, it has transpired that deceased defendant no.2 (iii) Shri Trilok Chand Jain had died on 8th March,1991, even prior to the institution of the present suit.

6. Though the applications have been filed under Order 22 rule 4 of Code of Civil Procedure and section 5 of the Limitation Act,1963, since the deceased defendant no.3 had died even before the institution of the suit, the said application can be considered as an application for impleadment of Shri Dinesh Kumar Jain. Consequently the present application can be considered as applications under Order 1 rule 10 of the Code of Civil Procedure for impleadment of legal representative of deceased defendant no.2 (iii).

7. Since the suit was filed against a dead person, on coming to know about the death of the deceased, the suit shall not abate. No provision has been pointed out by the learned counsel for the defendant no.1 that if a suit is filed against a number of persons and on the date of institution, if one person, is already dead, then the suit has to be dismissed against all the persons.

8. If a party to the suit is already dead, the plaintiff is entitled for moving an appropriate application for deletion of the name of the deceased person and impleadment of his legal representatives, who would be necessary parties in the present facts and circumstances of the case.

9. Similar application for impleadment of legal representative of deceased defendant no. 2 (ii) has been allowed. For the similar reasons stated hereinabove, the application is allowed. Mr.Dinesh Kr.Jain, s/o.Late Sh.Tirlok Chand Jain, r/o.D-423, defense Colony, New Delhi-110024 is imp leaded as a party to the suit and the name of the defendant no.2 (iii) Shri Trilok Chand Jain is deleted. Amended memo of parties be filed. IA No.10039/1994

1. This is an application by the defendant No.1 under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure contending inter-alia that the plaintiff has filed the suit for specific performance of agreement to sell dated 19.1.1993 as a counter blast to the suit filed by the defendant No.1 against the plaintiffs being suit No.1875/92 titled Sh.Jagmohan Gupta and Ors. v. Dalmiya Industries Ltd and Ors. which is pending in the Hon'ble Court.

2. The defendant No.1 applicant contended that the property in suit was agreed to be sold for a consideration of Rs.60 lakhs out of which plaintiffs made a payment of Rs.30 lakhs and it was also categorically stipulated in Page 1341 the agreement that the entire sale would be paid within three months and that the plaintiffs would secure the interest of the defendants by giving the bank guarantee for balance sale consideration. Since the plaintiffs continued to delay the fulfilllment of their contractual obligations and completion of the sale, the defendant No.1 was left with no alternative but to cancel/revoke agreement dated 19.1.1983 and to file a suit for recovery of possession, damages and mesne profits. The applicant contended that the suit has been filed against dead person Sh.Bimal Pershad Jain, defendant No.2 (ii) and Sh.Trilok Chand Jain, defendant No.2 (iii) who died on 3.8.1991 and 8.3.1991 respectively much prior to filing of the suit and the plaintiff had adequate knowledge of their deaths at the time of filing of the above suit. Since the plaintiff has filed the suit against the dead persons, therefore, the rejection of the plaint has been sought.

3. Application is contested by the plaintiff contending that plaintiff had no knowledge before the institution of the suit about the death of Sh.Bimal Pershad Jain and Sh.Trilok Chand Jain prior to the institution of the suit. Regarding the death of Sh.Trilok Chand Jain it was contended that even after filing of the suit and filing an application under Order 22 Rule 4 in reply it was not disclosed by defendant No.1 that defendant No.2 (iii) had died prior to the institution of the suit. In any case it is prayed that whether the legal representative of deceased defendants no. 2 (ii) and (iii) are the necessary parties or not is to be adjudicated and on the pleas of the applicant/defendant No.1 that the suit has been filed against the dead person, the entire plaint cannot be rejected.

4. The learned counsel Mr.Ganju appearing for non applicant has also contended that applications for impleadment of LRs of deceased defendant No.2(ii) and 2(iii) has since been allowed and consequently there is no cause to reject the plaint. It has also been contended that whether the suit in absence of legal representatives of the deceased defendant nos. 2 (ii) and (iii) will be not maintainable and will be bad for non joinder of parties, will be plea of the defendant no.1 and on the basis of the plea of the defendant no.1, the plaint, can not be rejected.

5. Rejection of a plaint is a serious matter as it non suits the plaintiff and kills the cause of action. It cannot be ordered cursorily without satisfying the requirement of the said provision. It is no more res integra that to decide under Order VII Rule 11 of the Code of Civil Procedure, averments in the plaint have to be read without looking at the defense and thereupon it has to be seen whether on the averments made in the plaint, Order VII Rule 11 get attracted or not. From the averments made in the plaint it has to be seen whether the jurisdiction of the Court is made out or not and whether the suit is barred by any law.

6. The court has not to see whether the claim made by the plaintiff is likely to succeed. It has merely to satisfy itself that the allegations made in the plaint, if accepted as true, would entitle the plaint to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the plaint must be rejected. But in ascertaining whether the plaint shows a cause of action the court does not Page 1342 enter upon a trial of the issues affecting the merits of the claim made by the plaintiff. It cannot take into consideration the defenses which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the plaint, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the plaintiff will succeed in the claims made by him. Therefore so long as the claims disclosed some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars.

7. In the circumstances, the plea of the defendant no.1 that the defendant no.2 (ii) and (iii) are dead persons and the suit for specific performance against the remaining defendants will not be maintainable, is the defense raised by the defendant no.1. On the defense raised by the defendant no.1, the plaint can not be rejected in the facts and circumstances of the case.

8. Therefore, for the reasons stated hereinabove and also the fact that the names of defendant Nos.2 (ii) and (iii) have been deleted and their legal representatives have been imp leaded parties to the suit, the plea of defendant No.1 for rejection of plaint does not succeed.

9. The application of the defendant no.1 for rejection of the plaint under Order VII rule 11 of the Code of Civil Procedure is, therefore, dismissed. CS(OS) No.4622/1992

Amended memo of parties be filed within one week. Issue summons to the newly added defendants 2 (ii) and (iii) by ordinary process and registered post on filing process fee and registered A.D cover within three days. List before the Joint Registrar on 13.7.2006 for completing the pleadings.