Telangana High Court
Smt. Sughra Begum vs Md. Ismail Khan on 9 September, 2021
Bench: B.Vijaysen Reddy
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
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
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
ILR (2007) II DELHI 715
(2017) 9 SCC 700
AIR 2000 SCW 4907
(2012) 8 SCC 384
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
