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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 178/2017 with I.A. 2021/2019, 9146/2019,
12851/2019, 16241/2019, 1547/2020 & O.A. 21/2020
MRS. REKHA KAPOOR ..... Plaintiff
Through: Mrs. Mala Goel and Ms.
Parvinder, Advocates (Ph.
9312401950).
versus
DR. PAWAN CHANDRA & ANR ..... Defendants
Through: Mr. Prosenjeet Banerjee and
Ms. Samapika Biswal,
Advocates for D-1
(Ph.9406951592, e-mail:
[email protected])
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
JUDGMENT
% 06.10.2022
MINI PUSHKARNA, J.
I.A. 1547/2020 (under Section 5 & 14 of Limitation Act read with Section 151 of CPC for condonation of delay in filing the Chamber Appeal)
1. By this application under Sections 5 & 14 of the Limitation Act, 1963 read with Section 151 CPC, defendant no. 1/appellant herein seeks condonation of delay in filing chamber appeal. It is the case of defendant No.1/Appellant that there is a delay of 5 days in filing the accompanying chamber appeal filed under Rule 5, Chapter - II of Delhi High Court (Original Side) Rules, 2018.
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 1 of 23 By:PREETI Signing Date:06.10.2022 15:59:50
2. The chamber appeal has been filed by defendant no. 1 against order dated 30.07.2019 passed by Joint Registrar. By the said order dated 30.07.2019, ld. Joint Registrar has disposed of application filed on behalf of plaintiff, being I.A. 5173/2019 under Order XXII Rule 4 CPC.
3. Appellant/defendant no. 1 had earlier filed a chamber appeal bearing O.A. No. 108/2019 against the aforesaid order dated 30.07.2019 passed by Joint Registrar. The first appeal, O.A. No. 108/2019 was filed on 19.08.2019 after a delay of 5 days. The said appeal was disposed of as withdrawn vide order dated 21.01.2020 with liberty to file a fresh appeal within a period of two weeks. The first appeal was withdrawn in view of objection of plaintiff/respondent herein that said appeal contained averments post the first filing of the said appeal. In view of addition of subsequent facts, the first appeal was allowed to be withdrawn with liberty to file a fresh appeal. Thus, it is the case of appellant that present appeal was filed on 30.01.2020 within the stipulated two weeks as granted by this Court vide order dated 21.01.2020 and that there is delay of 5 days in filing the present appeal that occurred at the time of filing of first appeal. Thus, it is prayed that delay of 5 days in filing the appeal may be condoned.
4. On the other hand, ld. Counsel for plaintiff/respondent herein has vehemently opposed the application for condonation of delay on the ground that delay ought to be counted from 14.08.2019, i.e., after expiry of 15 days of the order dated 30.07.2019 passed by Ld. Joint Registrar to 30.01.2020, when the present chamber appeal was filed.
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 2 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 Thus, as per plaintiff/respondent herein the delay in filing present appeal is not merely 5 days, but much more as the present appeal is against order dated 30.07.2019 passed by Joint Registrar. Further, it is submitted that provisions of Section 5 and Section 14 of the Limitation Act will not be applicable in the present case, since provisions of Section 14 would apply only in case where the earlier proceedings were being pursued in a wrong forum. Thus, it is contended that appellant has to seek condonation right from 14.08.2019 when limitation to file appeal expired in the first instance till 30.01.2020, when the present chamber appeal was filed.
5. A perusal of record shows that first appeal being O.A. No. 108/2019 was filed by appellant on 19.08.2019 after a delay of 5 days. The said appeal kept on pending for a long time till it came to be disposed of by way of order dated 21.01.2020 passed by this Court. While granting leave to appellant herein to withdraw first appeal, this Court had specifically granted liberty to appellant to file fresh appeal along with necessary applications within two weeks. The present appeal came to be filed on 30.01.2020, well within the period of two weeks as granted by this Court.
6. It is in this background that this Court has to consider whether present appeal has been filed with a delay of 5 days as contended by appellant. Indisputably, if the period taken for pursuing first appeal is excluded, then delay in filing the present appeal will only be 5 days.
7. At this stage, it would be fruitful to refer to judgment of Hon'ble Supreme Court in the case of Shakti Tubes Limited Through
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 3 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 Director Vs. State of Bihar and Others, (2009) 1 SCC 786. It has been held in the said judgment that even in a case where a petition has been filed before a court of competent jurisdiction, though under different remedy, i.e., Writ Petition instead of a Suit, even then period spent before the said court pursuing writ remedy, would be liable to be excluded in reckoning the limitation period. Hon'ble Supreme Court held as follows:
"19. It is not in dispute that the writ remedy was resorted to by the plaintiff. A part of the writ petition was admitted. The writ petition was not entertained in respect of the escalated price by the High Court for the reasons stated by the High Court in its order dated 14-9-1995. It has not been held that the writ petition was not maintainable. It was not dismissed at the threshold. In view of the fact that a part of the writ petition was admitted for hearing, there cannot be any doubt whatsoever that the same was maintainable. The appellant was, therefore, pursuing the said remedy bona fide and in good faith.
20. Section 14 of the Limitation Act speaks of prosecution of the proceedings in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. What would be the true purport of the words "other cause of a like nature"? The same must relate to the subject-
matter of the issue. A three-Judge Bench of this Court had an occasion to consider the same in Rameshwarlal v. Municipal Council, Tonk [(1996) 6 SCC 100] wherein it was held: (SCC p. 101, para 3)
"3. Normally for application of Section 14, the court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter. However, since the High
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 4 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 Court expressly declined to grant relief relegating the petitioner to a suit in the civil court, the petitioner cannot be left remediless. Accordingly, the time taken in prosecuting the proceedings before the High Court and this Court, obviously pursued diligently and bona fide, needs to be excluded."
21. The question again came up for consideration before this Court in Union of India v. West Coast Paper Mills Ltd. [(2004) 3 SCC 458] wherein Lahoti, J. (as the learned Chief Justice then was), held as under: (SCC p. 464, para
14) "14. ... In the submission of the learned Senior Counsel, filing of civil writ petition claiming money relief cannot be said to be a proceeding instituted in good faith and secondly, dismissal of writ petition on the ground that it was not an appropriate remedy for seeking money relief cannot be said to be „defect of jurisdiction or other cause of a like nature‟ within the meaning of Section 14 of the Limitation Act. It is true that the writ petition was not dismissed by the High Court on the ground of defect of jurisdiction. However, Section 14 of the Limitation Act is wide in its application, inasmuch as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature. The expression „other cause of like nature‟ came up for the consideration of this Court in Roshanlal Kuthalia v. R.B. Mohan Singh Oberoi [(1975) 4 SCC 628] and it was held that Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstance, legal or factual, which inhibits entertainment or consideration by the court of the dispute on the merits
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 5 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 comes within the scope of the section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right."
22. We may also notice that in India Electric Works Ltd. v. James Mantosh [(1971) 1 SCC 24 : (1971) 2 SCR 397] this Court held: (SCC pp. 28-29, para 7) "7. It is well settled that although all questions of limitation must be decided by the provisions of the Act and the courts cannot travel beyond them the words „or other cause of a like nature‟ must be construed liberally. Some clue is furnished with regard to the intention of the legislature by Explanation III in Section 14(2). Before the enactment of the Act in 1908, there was a conflict amongst the High Courts on the question whether misjoinder and non-joinder were defects which were covered by the words „or other cause of a like nature‟. It was to set at rest this conflict that Explanation III was added. An extended meaning was thus given to these words. Strictly speaking misjoinder or non-joinder of parties could hardly be regarded as a defect of jurisdiction or something similar or analogous to it."
23. The provisions of Section 14 of the Limitation Act have been held to be applicable even in a proceeding arising under Section 34 of the Arbitration and Conciliation Act, 1996. (See Gulbarga University v. Mallikarjun S. Kodagali [(2008) 13 SCC 539: (2008) 11 Scale 79].)
24. We, therefore, have no hesitation in holding that the provisions of Section 14 of the Limitation Act, 1963 were applicable to the fact of the present case. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed with costs. Counsel's fee assessed at Rs 50,000."
8. Hon'ble Supreme Court in the case of Roshanlal Kuthalia and
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 6 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 Others Vs. R. B. Mohan Singh Oberoi, (1975) 4 SCC 628 has interpreted the scope of Section 14 of Limitation Act to have much wider connotation to include not merely jurisdictional defects, but other circumstances, legal or factual, which inhibits consideration of the dispute on merits. Hon'ble Supreme Court, thus, held as follows:
"27. Certainly, Section 14 is wide enough to cover periods covered by execution proceedings (See1959 SCR 811 at 818 [Raghunath Das v. Gokul Chand, AIR 1958 SC 827, 831 : 1959 SCR 811, 818] ). After all Section 47 itself contemplates transmigration of souls as it were of execution petitions and suits. The substantial identity of the subject- matter of the lis is a pragmatic test. Moreover, the defects that will attract the provision are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstance legal or factual, which inhibits entertainment or consideration by the Court of the dispute on the merits, comes within the scope of the section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right [See(1971) 2 SCR 397 at 401 [India Electric Works Ltd. v. James Mantosh, AIR 1971 SC 2313, 2316 : (1971) 2 SCR 397, 401] ]. In the Associated Hotels case (i.e. the very lis in its earlier round on the execution side) this Court pointed out [(1961) 1 SCR 259 at 272 [Associated Hotels of India Ltd. v. R.B. Jodhu Mal Kuthalia, AIR 1961 SC 156, 163] ] that the question was one of initial jurisdiction of the Court to entertain the proceedings. Thus in this very matter, the obstacle was jurisdictional and the exclusionary operation of Section 14 of the Limitation Act was attracted."
9. Considering the aforesaid law laid down by Hon'ble Supreme Court, it is clear that period spent in pursuing the first appeal in the present case will be excluded in computation of period of limitation.
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 7 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 Thus, contention on behalf of plaintiff/respondent herein that delay is to be computed from 14.08.2019 to 30.01.2020, is rejected.
10. Contention on behalf of plaintiff that provisions of Section 5 and Section 14 of the Limitation Act will not be applicable in the present case, is found to be untenable. Specific liberty had been granted by this Court to withdraw the earlier appeal and to file fresh appeal within two weeks. As already held, period spent in pursuing the first appeal will be excluded in reckoning the limitation period. Accordingly, it is held that there is delay of 5 days in filing the present appeal, that occurred at the time of filing the first appeal.
11. Considering the facts and circumstances of the present case, delay of five days in filing the accompanying chamber appeal is condoned.
12. The application is disposed of in the aforesaid terms.
O.A. 21/2020 (under Rule 5, Chapter - II of Delhi High Court (Original Side) Rules, 2018 read with Section 151 of CPC and I.A. No. 12851/2019 (under Order XXII Rule 10 read with Order 1 Rule 10 and Section 151 CPC )
13. Present appeal has been filed on behalf of defendant No.1/appellant against order dated 30.07.2019 passed by ld. Joint Registrar. By way of the said order dated 30.07.2019, ld. Joint Registrar disposed of application of plaintiff being I.A. No. 5173 of 2019 under Order XXII, Rule 4 read with Section 151 CPC to bring on record the legal representatives of defendant No.2, i.e., mother of plaintiff and defendant No.1, who passed away on 16.02.2019. By
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 8 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 impugned order, ld. Joint Registrar held that plaintiff is in conflict of interest with defendant No.2, due to which she cannot be substituted as legal representative of defendant No.2. It was further held that defendant No.1, who is the legal representative of defendant No.2, is already defendant in this suit and no purpose will be served by his substitution. As regards impleadment/substitution of Dr. Savita Chandra, it was held that she is not legal representative of defendant No.2, being Daughter-in-law and cannot be substituted as legal representative.
14. As per appellant/defendant No.1, appellant is not challenging impugned order as regards findings of ld. Joint Registrar that defendant No.1 is legal representative of deceased defendant No.2 and that plaintiff is in conflict of interest with defendant No.2, due to which she cannot be substituted as her legal representative. As per appellant, impugned order is being challenged only to the extent of findings of ld. Joint Registrar that plaintiff is a representative of deceased defendant no. 2 and that Dr. Savita Chandra, being daughter- in-law, cannot be substituted as legal representative of defendant No.2.
15. It is contended on behalf of appellant that ld. Joint Registrar has wrongly disallowed substitution of Dr. Savita Chandra as legal representative of deceased defendant No.2. Ld. Joint Registrar has failed to consider that Dr. Savita Chandra is beneficiary under registered Gift Deed dated 24.05.2017 executed by deceased defendant No.2, her mother-in-law, as well as legatee under Will
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 9 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 dated 12.09.2017 executed by deceased defendant No.2. By virtue of aforesaid, it is contended that Daughter-in-law would be entitled to be substituted as legal representative of deceased defendant No.2, along with defendant No.1.
16. Defendant No.1/appellant herein has relied upon the following judgments:
G.N. Kishore Reddy v. R. Venugopal Rao & Ors., 2004 (2) APLJ 277 (HC) Amit Kumar Shaw & Anr. V. Farida Khatoon & Anr., (2005) 11 SCC 403 Chandra Bai v. Khandalwal Vipra Vidyalaya Samiti & Ors., (2016) 12 SCC 534 Jawaharlal Shivraj Lunkad v. Saraswatibai Babulal Joshi & Ors., 1986 SCC OnLine Bom 48 Suresh Kumar Bansal v. Krishna Bansal & Anr., (2010) 2 SCC 162 Andhra Bank Ltd. v. R. Srinivasan & Ors., AIR 1962 SC 232 Ambalika Padhi (Smt) & Anr. v. Radhakrishna Padhi & Ors., (1992) 1 SCC 667 Dhurandhar Prasad Singh v. Jai Prakash University & Ors., (2001) 6 SCC 534 Uttam v. Saubhag Singh & Ors., (2016) 4 SCC 68 Ram Nath Sao & Ors. v. Goberdhan Sao & Ors., (2017) 13 SCC 149
17. Additionally, an application being I.A. No. 12851/2019 has
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 10 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 been filed on behalf of Dr. Savita Chandra under Order XXII Rule 10 read with Order I Rule 10 and Section 151 CPC to bring her on record as legal representative of deceased defendant No.2 or in the alternative, implead her as defendant in the present suit.
18. On the other hand, ld. Counsel for plaintiff/respondent herein submits that Dr. Savita Chandra, being daughter-in-law of deceased defendant No.2, cannot be impleaded as her legal representative. It is submitted that both plaintiff and defendant No.1 are children of deceased defendant No.2. Thus, there cannot be any dispute about plaintiff and defendant No.1 being legal heirs of deceased defendant No.2. Ld. Joint Registrar has rightly observed that substitution of Dr. Savita Chandra cannot be allowed. She submits that alleged gift deed dated 24.05.2017 is null and void as defendant No.2 had no share, which she would have had only on partition. She further submits that alleged gift deed was registered on 22.05.2017 after filing of present suit for partition on 19.04.2017. Further, since there was no application on behalf of Dr. Savita Chandra to be brought on record as legal representative of defendant No.2, ld. Joint Registrar has rightly passed the impugned order thereby holding that Dr. Savita Chandra cannot be brought on record as legal representative of defendant No.2. Mere execution of alleged gift deed does not give ownership rights to defendant No.2 or defendant No.1. It is further contended on behalf of respondent/plaintiff that no reliance can be placed upon alleged Will dated 12.09.2017, as no right can come to defendant No.1 or Dr. Savita Chandra on an un-probated alleged Will. She further relies
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 11 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 upon Hindu Succession Act, 1956 to contend that daughter-in-law cannot be a legal heir of her deceased mother-in-law. She also relies upon Section 213 of the Indian Succession Act, 1925 to contend that no right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the Will under which right is claimed. Ld. counsel for respondent herein/plaintiff has relied upon judgment in the case of Krishna Kumar Birla Vs. Rajendra Singh Lodha and Others., (2008) 4 SCC 300 to contend that Will cannot be relied upon in the absence of probate or letters of administration.
19. This Court has heard the counsels at length and has also perused the record.
20. Facts that emerge in the present case are that plaintiff, being daughter has filed present suit for partition and rendition of accounts against her brother, defendant No.1 and her mother (now deceased), defendant No.2, with respect to suit property bearing No. D-227, Defence Colony, admeasuring 325 sq. yds. Present suit has been filed by plaintiff on the premise that suit property is HUF property. On the other hand, brother and mother of plaintiff have put up a case that suit property is self acquired property of father of plaintiff and defendant No.1, i.e., Late Brigadier Brij Chandra. Defendant No.2, i.e., mother of plaintiff, disputed averments made in the plaint and opposed claims of plaintiff, i.e., her daughter, in her written statement.
21. It is the case of defendants that late Brigadier Brij Chandra executed a registered Will dated 07.05.1979 (as amended by the
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 12 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 codicil dated 04.06.2001), wherein he bequeathed all his properties including the suit property to his wife, i.e., defendant No.2 exclusively and absolutely. Thus, it is the submission on behalf of defendants that by operation of aforesaid Will, defendant No.2 being wife of Late Brigadier Brij Chandra became sole owner of suit property. Defendant No.2 duly executed a registered gift deed dated 24.05.2017 thereby gifting suit property in favour of her son, defendant No.1/appellant herein and Dr. Savita Chandra, wife of defendant No.1/appellant herein. On the basis of said gift deed it has been prayed on behalf of defendant no. 1 in reply to I.A. No. 5173/2019 that Dr. Savita Chandra may be brought on record as defendant in the present suit.
22. As noted above, Dr. Savita Chandra has also filed application, I.A. No. 12851/2019 under Order XXII Rule 10 read with Order I Rule 10 and Section 151 CPC with alternate prayer for her impleadment as defendant in the present suit.
23. Perusal of aforesaid narrative shows that Dr. Savita Chandra is stated to be beneficiary of gift deed and will executed by deceased defendant No.2. Further, it is noted that Dr. Savita Chandra, along with her husband, i.e., defendant No.1 are in possession of suit property. Thus, it is clear that wife of defendant No.1, Dr. Savita Chandra is claiming right in suit property by virtue of gift deed dated 24.05.2017 and Will dated 12.09.2017 executed by deceased defendant No.2 in her favour along with her husband, i.e., defendant No.1.
24. This court under Order I Rule 10 CPC has authority to implead
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 13 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 a person as party if presence of such person is considered to be necessary in the pending proceedings. Necessary parties have been defined in a catena of judgments as those persons in whose absence no decree can be passed by the court or those persons whose presence before the court would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. Avoiding multiplicity of proceedings is one of the aspects of impleading necessary parties. Discretion to implead a necessary party can be exercised by Court either suo moto or on application of plaintiff or defendant or on application of a person who is not party to the pending proceedings.
25. Hon'ble Supreme Court in the case of Pankajbhai Rameshbhai Zalavadiya Vs. Jethabhai Kalabhai Zalavadiya, (2017) 9 SCC 700 has held as follows:
"10. Order 1 Rule 10 of the Code enables the court to add any person as a party at any stage of the proceedings, if the person whose presence in court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the court to substitute a party in the suit who is a wrong person with a right person. If the court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the court would do
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 14 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit."
26. In the case of Baluram Vs. P. Chellathangam, (2015) 13 SCC 579, Hon'ble Supreme Court has held as follows:
13. In Mumbai International Airport [(2010) 7 SCC 417 : (2010) 3 SCC (Civ) 87] this Court observed: (SCC pp. 422-25, paras 13-15, 19 & 22)
"13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure („the Code‟, for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
„10. (2)Court may strike out or add parties.--The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.‟
14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 15 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.
15. A „necessary party‟ is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a „necessary party‟ is not impleaded, the suit itself is liable to be dismissed. A „proper party‟ is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.
***
19. Referring to suits for specific performance, this Court in Kasturi [Kasturi v. Iyyamperumal, (2005) 6 SCC 733 : AIR 2005 SC 2813] , held that the following persons are to be considered as necessary parties: (i) the parties to the contract which is sought to be enforced or their legal representatives; (ii) a transferee of the property which is the subject-matter of the contract. This Court also explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party on
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 16 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 his application under Order 1 Rule 10 CPC. This Court concluded that a purchaser of the suit property subsequent to the suit agreement would be a necessary party as he would be affected if he had purchased it with or without notice of the contract, but a person who claims a title adverse to that of the defendant vendor will not be a necessary party.
***
22. Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice."
27. Perusal of the aforesaid judgments clearly shows that this Court is empowered to implead a person whose presence is necessary as a party.
28. Hon'ble Supreme Court in the case Ramesh HiraChand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, (1992) 2 SCC 524 has held as follows:
"6. 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
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 17 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 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. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. 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, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.
The 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. It is difficult to say that the rule contemplates joining as a defendant a person whose
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 18 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd. [(1956) 1 All ER 273 : (1956) 1 QB 357] , wherein after quoting the observations of Wynn- Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England [(1950) 2 All ER 605, 611] , that their true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated: "The test is „May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights‟.""
29. In the present case Dr. Savita Chandra is claiming to be beneficiary of gift deed and Will executed by deceased defendant No.2. Thus, at the time of final hearing it would be necessary for this Court to adjudicate upon this issue as regards whether or not a valid Will and gift deed were executed by deceased defendant No.2 in the present proceedings. Any finding in the present proceedings by this Court will not only affect the parties to the suit, but will also affect the rights as claimed by Dr. Savita Chandra. Similar claims as regards execution of a gift deed and Will by deceased defendant No.2 have also been raised by Son of deceased defendant No.2, i.e., defendant No.1 herein. Present case is a suit for partition and all the claims between the parties, including validity of Will and gift deed as alleged to be executed by defendant No.2, would be decided by this Court in the present proceedings.
30. In view of the aforesaid, it is held that Dr. Savita Chandra is a necessary party in the present case. As brought forth by the aforesaid
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 19 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 judgments of Hon'ble Supreme, Order I Rule 10 CPC enables a court to add any person as a party at any stage of the proceedings, if presence of such person is necessary to effectively and completely adjudicate upon all the questions involved in the suit.
31. It is made clear that impleadment of Dr. Savita Chandra as defendant in the present case shall not be construed as conferring any right upon Dr. Savita Chandra to the suit property. The said issue as regards whether or not the suit property is HUF property or whether deceased defendant No.2 had any right to execute gift deed dated 24.05.2017 or Will dated 12.09.2017 or whether said gift deed or Will were validly executed by deceased defendant No.2, are all questions that would be subject matter of adjudication in the pending suit between the parties. Thus, all the claims relating to suit property would be subject matter of final adjudication of the present suit.
32. It is further clarified that impleadment of Dr. Savita Chandra as defendant in the present suit shall not be construed as recognition of any right of Dr. Savita Chandra by this Court in the suit property, as the question regarding respective interests of parties to the suit property shall be decided at the time of final adjudication of the present suit. Dr. Savita Chandra has been allowed to be impleaded as defendant in the present case because she is a necessary party and so that all the claims of the parties are decided by this Court in the present suit proceedings in order to avoid multiplicity of proceedings.
33. Hon'ble Supreme Court in the case of Amit Kumar Shaw And Another Vs. Farida Khatoon and Another, (2005) 11 SCC 403 has
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 20 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 held as follows:
"10. The power of a court to add a party to a proceeding cannot depend solely on the question whether he has interest in the suit property. The question is whether the right of a person may be affected if he is not added as a party. Such right, however, will necessarily include an enforceable legal right.
......
12. Under Order 22 Rule 10, no detailed inquiry at the stage of granting leave is contemplated. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution. The question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. The court has only to be prima facie satisfied for exercising its discretion in granting leave for continuing the suit."
34. In the aforesaid judgment of Amit Kumar Shaw (Supra), Hon'ble Supreme Court has given a categorical finding that question about existence and validity of an assignment or devolution can be considered at the final hearing of the proceedings. Thus, the issue as regards entitlement of different parties to the suit property shall be decided by this Court at the time of final hearing of the present suit.
35. Hon'ble Supreme Court in the case of Suresh Kumar Bansal Vs. Krishna Bansal and Another, (2010) 2 SCC 162 has held as follows:
"19. The Code of Civil Procedure enjoins various provisions only for the purpose of avoiding multiplicity of proceedings and for adjudicating of related disputes in the same proceedings, the parties cannot be driven to different courts or to institute different proceedings touching on
Signature Not Verified Digitally Signed CS(OS) 178/2017 Page 21 of 23 By:PREETI Signing Date:06.10.2022 15:59:50 different facets of the same major issue. Such a course of action will result in conflicting judgments and instead of resolving the disputes, they would end up in creation of confusion and conflict.
20. It is now well settled that determination of the question as to who is the legal representative of the deceased plaintiff or defendant under Order 22 Rule 5 of the Code of Civil Procedure is only for the purpose of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited.
21. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the will of the deceased plaintiff so that all the legal representatives, namely, the appellant and the natural heirs and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit."
36. In view of the detailed discussion hereinabove, Dr. Savita Chandra is impleaded as defendant in the present suit. The present appeal is disposed off in the aforesaid terms.
37. In view of the aforesaid, I.A. No. 12851 of 2019 is also disposed of.
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38. Amended memo of parties be filed within two weeks.
39. List before the Joint Registrar for further proceedings on 14.10.2022.
(MINI PUSHKARNA) JUDGE
October 6, 2022/PB/AU
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