IN THE HIGH COURT OF JUDICATURE AT PATNA (In the matter of an application u/s 115 of the C.P.C.) C.R. No.2315 of 2007 SMT.PREM LATA DEVI SARAF @ PREM LATA SARAF W/O Sri Raj Kumar Saraf, r/o-mohalla Kathautia Gali, P.S.Chowk Patna City, Town+District- Patna. Versus 1.SMT.RADHA DEVI W/O Sri Motilal Kamani 2.Rajiv Ranjan Kamani S/O Sri Motilal Kamani 3.Balram Prasad S/O Late Doman Sao 4.Kunti Devi d/o Late Bulaki Sao & W/O Balram Prasad All residents of mohalla Maharajganj, P.S. Alamganj, Patna City, Town+District-Patna. ----------- For the petitioner: Mr. Pushkar Narain Sahi, Advocate For the Opposite parties: Mr. Triloki Nath Maitin, Sr. Advocate. ----------- THE HON‟BLE MR JUSTICE MIHIR KUMAR JHA -------------- JUDGMENT M.K.Jha, J. Heard counsel for the parties. The plaintiff-petitioner has assailed the impugned order dated 8.10.2007, whereby and whereunder, her prayer for addition of one Umesh Kumar @ Umesh Prasad as defendant to the suit under the provisions of order 1, rule 10(2) read with section 151 of the Code of Civil Procedure has been rejected solely on the ground of delay. Mr. Pushkar Narain Shahi, learned counsel appearing on behalf of the petitioner has submitted that the court below has committed on apparent jurisdictional error by rejecting such application for addition of party under order 1, rule 10 (2) of the C.P.C. only on the ground of delay, inasmuch as, the aforesaid provision by itself permits the Court to add any party at any stage of the proceedings. In this respect he contends that when the evidence of the plaintiff was still going on, the court below in the given set of facts 2 and circumstances ought to have not rejected such prayer of the plaintiff-petitioner for addition of the aforesaid Umesh Kumar. Learned Counsel of the petitioner in this regard by placing reliance on the materials on record has explained that the said Umesh Kumar along with Radha Devi had alienated the suit property during the pendency of the suit on the strength of legatee of the will executed by the sole defendant and as such had become a necessary party whose impleadment was very much permissible under the provisions of Order 1 Rule 10(2) C.P.C. Expanding his aforesaid submission Mr. Shahi had also submitted that as a matter of fact after the death of the sole defendant in a suit for specific performance filed by the plaintiff petitioner on the basis of an agreement for sale, substitution of his known legal representative had already been effected well within time and only when such substituted defendant, the opposite party no.1 of this case had taken a plea in her written statement that one of the legatee in the Will executed by the original defendant was Umesh Kumar who alongwith the opposite party no.1 had alienated the suit property a necessity for impleading him also as a party defendant to the suit had arisen especially. He had also placed reliance on unrebutted fact that when Umesh Kumar along with defendant no.1 had alienated the suit property during the pendency of the suit in hand, in favour of defendant nos. 3 and 4 they also were made party to the suit on filing a subsequent application by the petitioner under Order 1 Rule 10(2) C.P.C. as their presence had become necessary for a final and conclusive decision in the suit. 3 Taking a clue from the counter affidavit of the opposite party no.1 as with regard to the possible plea of abatement to be taken by the other side, the opposite parties to this application Mr. Shahi had sought to preempt such submissions by contending that as the suit had never abated either on account of any such order recorded by the below or even otherwise in asmuch as the estate of the deceased sole defendant was well represented by the defendants-opposite party nos. 1 and 2 and that the transferee (Purchasers) of the suit property were also brought on record by way of defendants-opposite party nos. 3 and 4 and had thus contended that the Court below could have exercised its jurisdiction vested in it by also allowing impleadment of one of the two vendors Umesh Kumar 9the other being opposite party no.1) so that in the event of the suit for specific performance being decreed in favour of plaintiff petitioner he could be directed to exelcute sale deed in her favour. He had accordingly concluded his submissions by taking a specific stand that refusal to implead the aforesaid Umesh Kumar would refusal as a party to the suit would therefore in the facts of the present case definitely amount to an apparent jurisdictional error. In this context he had referred to a judgment of the Apex Court in the case of Mahabir Prasad Vs. Jage Ram & Ors‟ reported in AIR 1971 SC 742 and Harihar Prasad Singh & Ors Vs. Balmiki Prasad Singh & Ors.‟ Reported in AIR 1975 SC 733 the others of this Court in the cases of „Kunja Behari Misra & Ors Vs. Bendudhar Panda & Anr‟ reported in AIR 1942 Patna 185, and „Harbans Singh @ 4 Harbans Singh & Ors Vs. Rajpaltan Singh & Ors‟ reported in 1975 BLJR 444, „Chekhuri Mallah & Ors Vs. Bhabhuti Mallah & Ors‟ reported in 1981 BLJR 642, and „Badri Narain Prasad Shah & Ors Vs. Bansidhar Prasad & Ors‟ reported in 1982 BLJ 327. Mr. Triloki Nath Maitin, learned Senior counsel appearing on behalf of the opposite parties, on the other hand, has submitted that there is no flaw in the impugned order, inasmuch as, the suit itself on account of non substitution of Umesh Kumar had abated way back in the year, 1987, inasmuch as, the date of death of original defendant is 21.5.1987 and when the plaintiff-petitioner had initially sought substitution of defendants-opposite party nos. 1 and 2 in her application dated 20.8.1987 and did not implead Umesh Kumar despite being aware of execution of Will by the original defendant in favour of Umesh Kumar, she could not have been allowed to take a circuitous route by choosing to implead such Umesh Kumar after ten years of death of the original defendant. He has further submitted that such application was clearly barred under the provisions of Order 22, rule 3 and therefore recourse to order 1, rule 10 (2) of the C.P.C. could not have been allowed by the court below. Mr. Maitin in support of his contention has referred to the judgment of the Apex Court in the case of „Union of India Vs. Ram Charan‟ reported in AIR 1964 SC 215, and of this Court in the case of „Jamuna Rai & Ors Vs. Chandradip Rai & Ors‟ reported in AIR 1961 Patna 178, „Minati Dutta & Ors Vs. Sushil Choudhary‟ reported in 2005(3) PLJR 680 and a decision of the Calcutta High Court in the case of „Surendra 5 Nath Sarkar & Ors Vs. Mahatab Monian & Ors‟ reported in AIR 1978 Calcutta 344. Having given anxious consideration to the aforementioned submissions as also on perusal of the materials on record, this Court is of the opinion that in the given set of facts and circumstances the suit in hand, filed for specific performance of contract would not have and in fact did not, abate on account of failure of the petitioners to also implead Umesh Kumar while by impleading the opposite party no. seeking substitution of the sole and her opposite party no. defendant on non substitution of Umesh Kumar. The reasons for the same are also plain and simple. The plaintiff-petitioner had filed Title Suit No.39 of 1987 for a decree of specific performance of contract in respect to an agreement for sale dated 22.10.1986 executed by the original defendant Ram Babu Kamani for a piece of land and a godown thereon situated in holding no.105/127, Circle No.93, Ward No.19 (Old) 24 (New) at Mohalla-Maharajganj, Alamganj PatnaCity in the town and district of Patna and in the plaint it was the case of the petitioner that Ram Babu Kamani was absolute owner of the property in question having purchased the same from one Late Babu Itwari Lal. The suit, therefore, was filed against Ram Babu Kamani who was the original defendant alleging therein that an agreement for sale had been executed on 22.10.1986 by him for sale of the suit property for a sum of Rupees Two lacs five thousand in favour of the petitioner and that he had also received Rupees Ten thousand by a cheque from the petitioner a fact which was also clearly recorded in the alleged 6 agreement for sale. The plaint of the petitioner had further proceeded with an allegation that the suit property had to be transferred within a period of two months from the date of agreement for sale but the sole defendant Ram Babu Kamani despite payment of balance of the amount within the stipulated period by the petitioner had not paid any heed to the request of the petitioner for transfer of the suit property by executing a registered sale deed, as a result whereof the petitioner had sent a legal notice on 4.12.1986 followed by a telegram calling upon the original defendant Ram Babu Kamani to execute the registered sale deed, but on getting no response she had been compelled to file the suit in hand for specific performance as against Ram Babu Kamani who was the sole defendant to the suit. There is no dispute that Ram Babu Kamani died during pendency of the suit on 21.5.1987 and after his death the petitioner had filed an application for substitution of the sole defendant on 20.8.1987, i.e, well within the prescribed period wherein it was stated by her “that although the sole defendant had no son or daughter of his own and one Smt. Radha Devi wife of Motilal kamani and Rajeeb Ranjan Kumar son of Motilal Kamani, both resident of Maharajganj were looking after the deceased- defendant and they are intermeddling with the estate left by the deceased.” Such prayer of substitution of the petitioner was allowed and therefore estate of the deceased sole defendant was represented by opposite party no.1 Smt. Radha Devi who incidently is no stranger, inasmuch as, she claims that first Will dated 30.4.1987 had been 7 executed in her favour by Late Ram Babu Kamani (original defendant) in his life time giving her capacity, power and interest to manage the entire estate of the original defendant no.1. It is true that subsequently the aforesaid Umesh Kumar had also emerged on the scene by claiming entire interest in the estate of the sole defendant on the strength of a separate Will dated 1.5.1987 executed in his favour by the sole defendant but then such rat-race remained confined between them i.e, Radha Devi, the opposite party no.1 and Umesh Kumar inasmuch as they had only filed two probate cases, one by Radha Devi, i.e, Probate Case No.75 of 1987 and other by Umesh Prasad @ Umesh Kumar, being Probate Case No. 103 of 1987 and on contest by Radha Devi, along Probate Case filed by Umesh Kumar was also converted into Title Suit, i.e, Title Suit No. 1 of 1990, which ultimately was disposed of by judgment dated 22.12.1992 (Annexure-F to the supplementary counter affidavit) only on the basis of some sort of compromise arrived at between Radha Devi and Umesh Prasad as is clearly recorded in the aforementioned judgment, operative portion whereof reads as follows:- “12.I have minutely examined the signature of Smt. Radha Devi on her objection petition, on her Vakalatnama and also on her consent petition. On a close examination and scrutiny of her different signatures I have found that her signature on the consent petition tallies with her signatures on her objection petition and her Vakalatnama. So it appears that the consent petition withdrawing her claim in favour of the plaintiff bears her signature. 13.Thus after taking into consideration the discussions above I find that there is no impediment in grant of probate in favour of the plaintiff in respect of the deed of Will dated 1.5.87 executed by Ram Babu Kamani in favour of the plaintiff Shri Umesh Prasad. Accordingly, the probate is granted in 8 the light of the consent petition filed on behalf of Smt. Radha Devi (defendant) in favour of the plaintiff in respect of the Will dated 1.5.1987 executed by late Ram Babu Kemani in favour of the plaintiff Shri Umesh Prasad (plaintiff).” In pursuance of this judgment dated 22.12.1992 recognizing Radha Devi also to have some sort of interest in the estate of the sole defendant and without whose consent the Court was not prepared to give probate in favour of Umesh kumar, it has to be held that when the plaintiff petitioner had already substituted Radha Devi as defendant no.1 along with her son as defendant no.2 some five years back on 20.8.1997 in place of the original defendant Ram Babu Kamani she had done needful for pursuing the suit, well within time and thus ruling out any scope for automatic abatement of the suit. It is also not in doubt that even though probate was granted in the name of Umesh Kumar, the sale deed for the suit property admittedly belonging to Late Babu Lal Kamani was again jointly executed both by Radha Devi and Umesh Kumar on 25.12.1996 in favour of defendant nos.3 and 4 which is again only an evidence of the fact that Radha Devi was also one of the legal heir and representative of Late Ram Babu Kamani, the original defendant no.1. Thee would be in fact no further laches on the part of the petitioner in contesting the suit, inasmuch as, even the purchasers, defendant no.3 and 4 were also made parties to the suit on their application under order 1, Rule 10 of the C.P.C. which was allowed by the court below without any protest of opposite party no.1 and even at that point of time she did not take a plea that though the sale deed was executed by two persons, namely, herself 9 and Umesh Kumar but as Umesh Kumar was not a party to the suit, the same had already been abated. Such plea, in fact, for the first time was taken by defendant Radha Devi and that too in a round about manner in her written statement filed on 3.5.2003 raising a plea of non-joinder of party and the suit being not maintainable in absence of Umesh Kumar after nearly 16 years of her being substituted on 20.8.1997. It has to be also noted that when issues were framed on 13.4.2004 in the trial no such specific issue as with regard to effect of non joinder of Umesh Kumar, to be fatal to the suit, was framed by the court below and in such a situation it cannot be said that if an application was filed by the plaintiff-petitioner for addition of said Umesh Kumar as party to the suit in terms of order 1, Rule 10(2) of the C.p.C., the same being belated, was not maintainable only because the plaintiff-petitioner had also adduced oral evidence of his few witnesses. It has to be always kept in mind that there is no embargo under order 1, rule 10 (2) of the C.P.C. as to the period of filing of an application for addition of party and in fact such application can be filed “at any stage of the proceeding” a would be apparent from reading of provisions of order 1, Rule 10(2) of the C.P.C. which is quoted hereinbelow:- “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 10 involved in the suit, be added.” (underlining for emphasis) From reading of the aforementioned provisions of the statute it is thus clear that delay by itself cannot be a ground for rejecting an application under order 1, rule 10(2) of the C.P.C. The Court below however by the impugned order has primarily rejected such prayer of the petitioner for impleadment of Umesh Kumar only on the ground of delay as would be apparent from operative portion of the order which are as follows:- “mHk; i{kksa dks lquk A vfHkys[k dk voyksdu fd;k A vfHkys[k ds voyksdu ls Li"V gS fd ;g ekeyk lu~ 1987 ls yafcr pyk vk jgk gS A bl ekeys esa fnukad 19&4&2004 dks okn&i= dk xBu fd;k x;k rFkk fnukad 4&8&2006 dks oknh dh rjQ ls ,d lk{kh dk lk{; djk;k x;k rFkk oknh ds mis{kkiw.kZ xfrfof/k;ksa ds dkj.k bl ekeys esa fnukad 18&10&2006 ds vkns’k ls oknh dk lk{; can fd;k x;k] ftls fnukad 22&11&2006 ds vkns” ds }kjk U;k;fgr esa oknh dks iqu%lk{; nsus dk volj iznku fd;k x;k A mlds Ik’pkr fnukad 28&11&2006 dks iqu% lk{; fn;k x;k rFkk oknh dh rjQ ls dqy 11 lkf{;ksa dk lk{; djk;k x;k gS A ftlesa okfnuh dk Hkh lk{; lfEefyr gS A mlds Ik’pkr oknh }kjk bl ekeys esa fHkUu&fHkUu le; ij rjg&rjg dk vkosnu fn;k tkrk jgk rFkk oknh dk ,dek= mns’; ekeys dks fdlh&u&fdlh :Ik esa foyafcr j[kus rFkk fuLrkj.k ugha gksus nsuk pkgrs gSa A blh dze esa oknh ds }kjk bl rjg dk vkosnu fnukad 28&6&2007 dks fn;k x;k A tcfd bl lEca/k esa twu&2003 esa nkf[ky izfrokn i= esa izfroknh ds }kjk Li"V :Ik ls izfrokn i= esa bl rF;~ dk mYys[k fd;k tk pqdk gS fd oknh ds }kjk mes” izlkn dks bl ekeys esa i{kdkj ugha cuk;k x;k] tks fd vko’;d i{kdkj Fkk A bl lEca/k esa oknhx.k dh rjQ ls fo}ku vf/koDrk }kjk dgk x;k fd ;g vfHkdFku fd] pwWfd lk{; ds nkSjku mes” izlkn dks i{kdkj ugha cuk;s tkus dk eq[; dkj.k ;g Fkk fd izfrokn i= ds vUrxZr mes” izlkn ds laca/k esa i{kdkj 11 cuk;s tkus laca/kh rF; ds leFkZu esa izfroknh dh rjQ ls dksbZ nLrkost lcwr ugha fn;k x;k Fkk A oknh ds fo}ku vf/koDrk dh rjQ ls bl izdkj dk rdZ vR;Ur gkL;kLin gS A tcfd izfroknhx.k dh rjQ ls nkf[ky izfrokn i= esa Li"V :Ik ls mYys[k fd;k tk pqdk gS fd oknh ds }kjk vko’;d i{kdkj mes” izlkn dks ugha cuk;k x;k tcfd bl rF; dh iw.kZ tkudkjh gksus ds ckn Hkh yxHkx pkj c"kksZ dk le; O;rhr gksus ds Ik’pkr tkku cw>dj mis{kkiw.kZ d`R; djrs gq, bl izdkj dk vkosnu le; lhek O;rhr gksus ds Ik’pkr fn;k x;k gS A oknh ds }kjk fn;s x;s vkosnu fu%lnsag ekeys dks fu"iknu djus esa foyfEcr djus ds nqHkkZoukiw.kZ mn~ns’; ls tkucq> dj foyEc ls fn;k x;k gS A ,slh ifjfLFkfr esa oknh ds bl d`R; ls ekeys dk fuLrkj.k fudV Hkfo"; esa gksuk laHko izrhr ugha gksrk gS A vfHkys[k lu~ 1987 dk vR;Ur iqjkuk gS A ,slh ifjfLFkfr esa ekeys ds Rofjr fu"iknu gsrq oknh ds vkosnu dks U;k;fgr esa Lohd`r fd;k tkuk mfpr izrhr ugha gksrk gS A vr%oknh dk vkosnu fnukad 28&06&2007 dks [kkfjt fd;k tkrk gS A” The issue that such amendment can be allowed at any stage of the proceedings stands well settled not only in view of the express unambiguous provisions of the statute but also in a large number of judgments of this Court including in the case of „Kunj Behari Mishra‟ (Supra) and a subsequent judgment of Apex Court in the case of „Kanakarathanammal Vs. V.S. Loganatha Mudaliar & Anr‟ reported in AIR 1965 SC 271. Mr. Maitin, leaqrned senior counsel for the opposite party no.1 in fact, in his submission had also neither disputed the aforesaid settled position in law nor had even supported the impugned order rejecting prayer of the petitioner for addition of party only on the 12 ground of delay, but then he had tried to fill-up the gap by supplying additional reasons in support of conclusion in the impugned order by taking a plea that the court below had rightly not allowed such prayer of the plaintiff-petitioner as the suit itself had abated on account of Umesh Kumar having been not originally substituted in place of Babu Lal Kamani the sole defendant whose will in favour of Umesh Kumar to the exclusion of the will of Radha Devi the opposite party was only probated by the judgment dated 22.12.1992 Mr. Maitin in order to support himself has also referred to certain pleadings on the strength of which he was of the view that the husband of the plaintiff-petitioner was well aware of and had in fact full knowledge of a Will having been executed by deceased sole defendant, Babu Lal Kamani, in favour of Umesh Kumar way back in the year 1990 on account of filing of an application by Umesh Kumar in a suit for eviction filed against the father-in-law of the plaintiff-petitioner in which husband of the petitioner and his elder brother were substituted as parties on the death of her father in law. In the opinion of this Court the issue as to whether the estate of Babu Lal Kamani the deceased defendant in the present suit had remained totally unrepresented so as to lead to abatement of the suit, could have been answered in favour of Mr. Maitin only if there was no substitution of the sole defendant. However as noted above upon death of Babu Lal Kamani, dying issueless on 20.5.1987, he had been substituted by Radha Devi and her son who were his close relatives and had been looking after in his old age vide an order of the Court dated 20.8.1987 It was only subsequently that apart from Radha Devi, Umesh 13 Kumar a totally stranger to the family of deceased Babu Lal Kamani emerged on the started claiming his entire estate on the basis of their respective will. Such of the two legatee under the two un-probated Will from the deceased sole defendant therefore would not have acquired the special status so as to claim to have become legal representative on the date of his death and thus if one of them Radha Devi, the opposite party no.1 was already substituted and made party to the suit on the death of original defendant, even though not in the capacity of legatee of the Will but as a close family member as specifically asserted in the application of substitution filed by the petitioner on 20.8.1987 and allowed by the court below it cannot be said that the suit itself had abated for non joinder of Umesh Kumar a busy body as on 20.8.1997, day on which his will had not even seen the light the day much less probated. Infact any right to Umesh Kumar to even claim not as an heir but as a legal representation of Babu Lal Kamani emerged on 23.12.1992 after five and half years of his death, when his probate was allowed by the competent civil court and his being a necessary party to the suit was even later i.e, 25.12.1996 when he along with Radha Devi had alienated the suit property to the purchases opposite party no. 3 and 4. It thus cannot be held that abatement of suit, which is automatic could have or had taken placed as on 20.8.1987 on account of non- impleadment of Umesh Kumar. In that context reliance placed by Mr. Shahi, learned counsel for the petitioner n the judgment of the Apex Court in the case of „Mahabir Prasad‟ (Supra) and in the case of „Harihar Prasad 14 Singh‟ (Supra) is quite apt, wherein the Apex Court had held that even if in absence of some of the legal representative, there are other legal representative to represent the estate, the suit can not abate as