Delhi High Court
Satish Narain Sood vs Kanchan Bala Sood & Anr. on 26 November, 2010
Author: Indermeet Kaur
R-104
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 24.11.2010
% Judgment Delivered on: 26.11.2010
+ RSA No.61/2002
SATISH NARAIN SOOD ...........Appellant
Through: Mr.J.K.Jain & Mr.Shant Kumar
Jain, Advocates.
Versus
KANCHAN BALA SOOD & ANR. ..........Respondents
Through: Mr.M.Qayam-ud-din &
Ms.Parvinder Khatra,
Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. Appellant before this court in this second appeal is Satish
Narain Sood who was defendant before the trial judge. The
original plaintiff Kamlesh Prabha Sood was the sister of the
defendant. Both the parties had inherited the ancestral property of
their parents i.e. property bearing no. G-84, Laxmi Nagar, Vijay
Chowk, Delhi in equal shares.
2. The plaintiff had filed a suit for permanent injunction. This
was for the reason that the defendant was proposing to construct a
wall in the common passage which was interfering with the
peaceful enjoyment of the suit property by the plaintiff. The suit
was partially decreed in her favour vide judgment and decree
dated 26.8.1995. The appeal filed by the defendant was dismissed
vide judgment dated 23.1.2002 which is the judgment impugned
before this court.
3. This is a second appeal. It is admitted on 2.8.2002. On
22.11.2010 following substantial question of law had been
formulated. It inter alia reads as follows:
"Whether after the death of Kamlesh Prabha Sood
(plaintiff no.1) on 01.10.1992, the suit having abated on
01.01.1993, could orders be passed on a pending
application under Order 1 Rule 10 of the Code of Civil
Procedure on 27.09.1993 and if so its effect?"
4. The plaintiff Kamlesh Prabha Sood had died on 1.10.1992.
She was survived by her legal representative i.e. her daughter
Kanchan Bala Sood. Kanchan Bala Sood had filed an application
seeking impleadment in the pending suit on 22.4.1992; cause of
action had arisen in her favour as being the daughter of the
plaintiff she was living in the suit property and had an interest in it.
This application dated 22.4.1992 was decided on 27.9.1993. While
disposing of this application, Kanchan Bala Sood was impleaded as
a necessary party in the suit proceedings. This order dated
27.9.1993 was not challenged by either party. It has attained a
finality.
5. Contention raised before this court in the second appeal is
that the plaintiff Kamlesh Prabha Sood having died on 1.10.1992,
the suit automatically stood abated on 1.1.1993 i.e. after the
prescribed period of limitation as contained in Article 120 of the
Schedule I of the Limitation Act, 1963. No formal order was
required to be passed. For this proposition reliance has been
placed upon a judgment of this Court reported in 1972 ILR Delhi
200 The Union of India vs. Rameshwar Nath & Anr. It is pointed
out that although it is not in dispute that an order on an application
under Order 1 Rule 10 of the Code of Civil Procedure (hereinafter
referred to as „the Code‟) can be passed at any stage of the
proceedings yet the proceedings necessarily have to be pending
which in this case came to a close on 1.1.1993 when the suit
automatically stood abated. Such an order passed on 27.9.1993 on
the application filed under Order 1 Rule 10 of the Code is void
abnitio. Attention has been drawn to Section 21 of the Limitation
Act, 1963 and its proviso (Section 22 of the old Limitation Act,
1908). Reliance has been placed upon a judgment of the Supreme
Court reported in AIR 2001 SCC 1185 Ramalingam Chettiar vs.
P.K.Pattabiraman & Anr. It is pointed out that a separate order
was required to be passed by the judge under the proviso of
Section 21; he had to record the special reasons as to why party
had to be impleaded after the expiry of the requisite period of
limitation. No such separate order detailing the special reasoning
has been passed. For all the aforesaid reasons, the impugned
judgment is liable to be set aside.
6. Arguments have been countered by counsel for the
respondent. It is pointed out that admittedly the order impleading
Kanchan Bala Sood was passed on 27.9.1993 on an application
which was filed by her on 22.4.1992; the suit proceedings were
pending as the judgment in this case was delivered only on
26.8.1995. That order has since become final. Reliance has been
placed upon a judgment of the High Court of Madras reported in
AIR 1973 316 Trustees of Port of Madras vs. Good Year India Ltd.
& Ors. to support submission that the words "when he was so
made a party" is to be counted from the date when the application
was made. Applying the ratio of the aforesaid application for
impleadment having been filed by Kanchan Bala Sood on
22.4.1992, she was impleaded on the said date itself i.e. on
22.4.1992.
7. Facts and relevant dates have been aforenoted. There were
two plaintiffs in the instant case. Plaintiff no.2 was a tenant in the
suit property. Plaintiff no.1 was the mother of Kanchan Bala Sood.
She had died on 1.10.1992. Kanchan Bala Sood as daughter of the
plaintiff was living in a portion of the suit property. This was
recorded in the proceedings before the High Court on 4.10.1991;
her prima facie possession having been established the defendant
was restrained from dispossessing her or creating any third party
interest in the property. She moved an application seeking
impleadment in the present proceedings by preferring an
application under Order 1 Rule 10 of the Code. This was on
22.4.1992. At this time when she had filed this application under
Order 1 Rule 10 of the Code her mother was very much alive. She
had sought impleadment as she had along with her mother had an
interest in the suit property. Her application was allowed vide a
speaking order dated 27.9.1993; that order had relied upon an
order of the High Court dated 4.10.1991 wherein the prima facie
possession of the applicant Kanchan Bala Sood had stood
established. It is not in dispute that this order dated 27.9.1993 has
since attained a finality as it was never challenged before any
superior forum.
8. In the judgment of The Trustees of Port of Madras (supra) the
words "when he was so made a party" appearing as appearing in
Section 22 of the old Act (which is para materia Section 21 of the
new Act) were construed and interpreted. While interpreting the
said words, the Court held that the date of the making of an
application under Order 1 Rule 10 of the Code would be the date
on which the party is impleaded; the date of passing of the order
would not be the relevant date.
9. The reasoning is detailed and inter alia reads as follows:
"It appears to me to be obviously the right principle to adopt in the
matter as otherwise though an application might be made in time
as in this case, by the dilatoriness of the Court or by the
maneuvers of the opposite party or by a mistaken decision of the
Court which had to be put right on appeal or revision the order to
which the party applying was entitled might not be made until the
suit had become time barred and it would be unreasonable to
leave the party who had applied in good time, at the mercy of such
chances. It is contrary to one of the clear principles of the law of
Limitation that a diligent party who has come to Court with his
suit or his application within the period prescribed should be
defeated because the Court for some reason cannot or does not
give him his relief within the period. The heavy penalty for
exceeding the arbitrary periods of limitation is to be
counterbalanced by the assurance of safety when within time".
10. The apparent reason is that a vigilant party can do all that he
can by filing an application within the time period prescribed; yet
such an individual has no control on the happenings or the
proceedings of the Court; merely because the order is passed on
his application belatedly or after the prescribed period of limitation
it should not be construed as reason enough to defeat the right of
such a diligent litigant. This court concurs with this reasoning.
11. It is thus clear that on 22.4.1992 itself when Kanchan Bala
Sood had been impleaded as a party in the suit proceedings. Her
mother had died later i.e. on 1.10.1992. Question of abatement of
the suit on death of the Kamlesh Prabha Sood would not arise.
12. Judgments relied upon by learned counsel for the appellant
are distinguishable and have no application to the facts of the
instant case. The judgment reported in AIR 1973 Andhra Pradesh
298 Mir Sardar Ali Khan and Ors. vs. Special Deputy Collector
Land Acquisition (Industries) Hyderabad and Ors. states that order
on an application under Order 1 Rule 10 of the Code can be passed
only when the proceedings are alive and still pending. On
22.4.1992 the suit was very much alive and pending. The judgment
reported in AIR 1999 Kerala 359 State of Kerala vs. Madhavakurup
Ramachandran Pillai is also inapplicable. In this case the
application under Order 1 Rule 10 of the Code had been preferred
by the applicant not for substitution as a legal representative of her
mother but in her individual capacity as a co-owner of the property.
The Supreme Court in the judgment of Ramalingam Chettiar
(supra) while interpreting the provisions of Section 21 of the
Limitation Act had merely expounded the said provision and the
contents of the proviso contained therein; the question of
interpretation of the words "when he was so made a party" was
never before the court. Ratio of said judgment is also inapplicable.
Judgment reported in AIR 2010 SC 3043 Balwant Singh (dead) vs.
Jagdish Singh & Ors. is on condonation of delay and the approach
to be adopted by the Court in dealing with such like applications.
Judgment is inapplicable as in the instant case the application
under Order 1 Rule 10 of the Code, as already aforenoted, was
within time.
13. There is no merit in the contentions raised by the counsel for
the appellant. Substantial question of law is accordingly answered
accordingly. Appeal is dismissed.
INDERMEET KAUR, J.
NOVEMBER 26, 2010
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