Shri Gobind Ram Arora vs Shri Narender Khandari And Ors.
2006 Latest Caselaw 606 Del

JUDGMENT

Vijender Jain, J.

1. Vide impugned order dated 16.2.2006, the learned Single Judge has allowed impleadment of respondents No.9 and 10 along with consequential amendment in a suit for partition filed by respondent No.1 against respondents No.2 to 7. The impugned order was passed on an application being I.A.No.10242/2005 filed by respondent No.1 for impleadment of respondents No.9 and 10 in his aforementioned suit for partition.

2. The facts that necessitated filing of the aforementioned application are that during the pendency of the aforesaid suit, the appellant had filed an application under Order I Rule 10 read with Section 151 CPC for his impleadment on the ground that respondent No.2, Smt. Pushpa Kandhari, had sold the front portion of the property bearing No.C-3/9, Krishna Nagar, Delhi to him on the basis of a registered Sale Deed dated 4.3.2000. Through that application, the respondent No.1 learnt that respondent No.2, against whom a suit for partition was filed, had also sold the remaining portion of the aforementioned property bearing No. C-3/9, Krishna Nagar, Delhi to respondents No.9 and 10 by virtue of a duly registered Sale Deed of the same date, that is, 4.3.2000. The application for impleadment filed by respondent No.8 was allowed and he was imp leaded as a party. Respondents No.9 and 10 to whom the remaining portion of the aforementioned property was sold have also been made parties to the suit and the consequential amendment regarding relief claimed against them has also been allowed vide the impugned order.

3. Learned counsel for the appellant has relied upon a judgment of the Supreme Court in T.L. Muddukrishana and Anr. v. Lalitha Ramchandra Rao (Smt) and on the strength of the said judgment he has argued that the learned Single Judge has committed an error by allowing amendment with regard to the relief claimed against respondents No.9 and 10 as the same had become time barred on the date an application for amendment was filed.

4. We have perused the impugned order and the judgment of the Supreme Court in the case of T.L. Muddukrishana and another (supra) relied upon by learned Counsel for the appellant.

5. The contention raised on behalf of the appellant before us has been dealt with by the learned Single Judge and his conclusion in regard to the same are as follows:

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The plaintiff is seeking partition of the property, a portion of which has been sold to the proposed defendant nos.9 & 10. In case the said transferees are not imp leaded as a party to the suit, the decree which will be passed in respect of the property, a portion of which is now owned by defendant nos. 9 & 10 will not be binding on them. In case the said proposed defendants file any other suit, a decree which will not be in consonance with the decree which may be passed in the present suit, may be passed in other suits which may be filed by said defendant nos. 9 & 10. Applying the test, whether the defendant nos. 9 & 10 are necessary parties, the inevitable inference is that they are necessary parties.

The plaintiff/applicant, therefore, shall be entitled for the relief of impleadment of defendant nos. 9 & 10.

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The issues have not been framed in the suit and the suit is still at the trial stage. From the averments made in the application seeking proposed amendment it cannot be inferred that the amendments are ex facie barred by time. Limitation in the facts and circumstances is the mixed question of fact and law and the plea of limitation is not to be conclusively determined at the time of consideration whether the amendment should be allowed or not. The plaintiff has already claimed a declaration against defendant No.8 in respect of one portion of the property and in case the plaintiff is allowed to seek declaration regarding transfer of rights in the property of other portion, it will not change the nature or cause of action.

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6. We do not find any infirmity in the above conclusion arrived at by the learned Single Judge on the facts of the present case. The judgment of the Supreme Court in T.L. Muddukrishana and another (supra) relied upon by the counsel for the appellant is not applicable to the facts of this case because in the case decided by the Supreme Court, the amendment was declined as the cause of action for including a relief of specific performance of an Agreement to Sell in a suit for mandatory injunction had become barred by limitation prescribed for a suit for specific performance under Article 54 of the Limitation Act, 1963.

7. It may be noted that in the present case the respondent No.1 being the plaintiff before the Trial Court came to know about the sale of a portion of the property, in respect of which partition was sought, by respondent No.2 to respondents No.9 and 10 only through an application of respondent No.8 filed for his impleadment on 7.1.2003. The application for impleadment and consequential amendment was filed by the appellant on 12.12.2005.

8. On the face of these facts, the question of proposed amendment being barred by limitation could not arise. We are further of the view that the learned Single Judge is absolutely right in observing that the amendment proposed to be made by respondent No.1 (plaintiff) is ex facie not barred by time.

9. For the foregoing reasons we do not find any merit in this appeal and the same is hereby dismissed in liming.