1 SA 747.2007 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 747 OF 2007 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.A.N.Nagargoje,Advocate for the appellant. Mr. S.S.Kazi, Advocate for the Resp. no.1 to 3. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 20/04/2011 PER COURT : 1. This is Appeal by the original plaintiff, who had filed Suit for partition and separate possession of the suit property. The trial Court dismissed the Suit on the ground that the Suit against defendant no. 5 was already dismissed under Order IX Rule 5 of the Code of Civil Procedure for not taking steps as against him and the other defendants had sold the suit property to the defendant no. 5 vide registered sale deed in the year 1979 itself. Even 2 SA 747.2007 the plaintiff in the plaint had sought possession from the defendant no. 5. The trial Court held other issues in favour of the plaintiff holding that he is entitled for half share. The plaintiff preferred Appeal. The appellate Court also dismissed the Appeal confirming the Judgment and decree passed by the trial Court. Aggrieved thereby, the plaintiffs have filed the present Appeal. 2. Mr. A.N.Nagargoje, the learned counsel for the appellants strenuously contends that for no fault of the plaintiff, the plaintiff has to suffer. In Appeal, application Exh. 33 was made invoking principles of Order I Rule 10 of the Code of Civil Procedure to add defendant no. 5 as party. The said application has not been considered. The learned counsel further contends that in fact the defendant no. 5 had purchased the property from other defendants who had appeared and contested the matter. As such, the interest of defendant was represented. So, the dismissal of Suit against the defendant no. 5 would not have made any effect on the merits of the matter. According to the learned counsel, even this Court can consider the wrongful dismissal of the Suit against defendant no. 5 in the Second Appeal by virtue of the provisions of Section 105 of the Code of Civil Procedure. 3 SA 747.2007 3. Per contra, Mr. S.S.Kazi, the learned counsel for the respondents submits that once the Suit was dismissed against the defendant no. 5, who was owner and possessor of the property, even as per the pleading in the plaint, the possession vested with the defendant no. 5 and it was from him the possession was sought by the plaintiffs, the Suit could not have proceeded further. According to the learned counsel, both the Courts have properly considered the aspect. 4. I have heard the learned counsel for the respective parties. 5. No doubt, the trial Court had held that the plaintiffs had half share in the suit property. But, in the year 1991, the Suit was dismissed against defendant no. 5 for not taking steps. It is observed that for two ( 2 ) years, the plaintiff did not take steps against the defendant no. 5 and eventually the Suit came to be dismissed against defendant no. 5 invoking Order IX Rule 5 of the Code of Civil Procedure in the year 1991. Thereafter the Judgment was delivered in the year 1993. The plaintiff, who had filed Appeal against the said Judgment, for the first time in November, 2006 moved an application Exh. 33 before the appellate 4 SA 747.2007 Court purportedly under Order I Rule 10 of the Code of Civil Procedure for adding defendant no. 5 as party. Even as per Section 21 of the Limitation Act, a person would be deemed to be added as party on the date of the application when it is made. As such, even taking into account all the admitted facts, the Suit would have been barred by limitation against the defendant no. 5 on the said date. 6. I would have considered the order dismissing the Suit against the defendant no. 5 under Order IX Rule 5 of the Code of Civil Procedure had any illegality been pointed out in the order dismissing the said Suit against the defendant no. 5. But, the appellants could not point out any such illegality committed in the order dismissing the Suit against defendant no. 5 before this Court nor before the lower appellate Court and the appellants could not have pointed out any illegality dismissing Suit against defendant no. 5 as for two ( 2 ) years the appellant had not taken any steps against defendant no. 5 and so the trial Court was justified in exercising its power under Order IX Rule 5 of the Code of Civil Procedure. Thereafter, no application was filed for setting aside the said order against the defendant no. 5. 5 SA 747.2007 7. In light of the above conspectus, the Second Appeal being devoid of any substantial question of law is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 747.2007