IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 138 of 1997 Decided on : 11th March, 2010 Swaraj Singh ..Appellant Versus Kamlendra Singh and others ..Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge Whether approved for reporting?1 Yes For the Appellants : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate, in all the appeals. For the respondents: Mr. K.D. Sood and Mr. Sandeep Chauhan, Advocates, for respondents No.1 and 2. Surjit Singh, Judge (Oral) By means of the present appeal, reversal of two orders of learned Single Judge has been sought. Both the orders are dated 28.11.1996. One order has been passed in OMP No. 144/95 and the other in OMP No.286/95. 2. Factual background for the disposal of the appeal may be noticed. Parties are related to each other. They are the legal heirs of one Kalyan Singh, who made a Will. On his death, appellant approached the Revenue Officer concerned for attestation of mutation on the basis of disposition made in the Will. Will was contested by the respondents before the Revenue Officer. Parties were directed by the Revenue Whether reporters of the local papers may be allowed to see the judgment? …2… Officer to get the title determined from Civil Court. This order was passed by the Revenue Officer on 16.3.1988. Soon after the passing of that order, a Civil Suit No.12/1989 was instituted in the Court of Sub Judge, Paonta Sahib. In the suit, all the legal heirs of late Kalyan Singh were impleaded. Learned Sub Judge, vide order dated 17.9.1994, ordered that the plaint be returned to the plaintiff, as the value of the subject matter was Rs.6,75,000/-, but the upper limit of his pecuniary jurisdiction was Rs.2,00,000/- and, therefore, he did not have the jurisdiction. Consequently, the plaint alongwith a copy of the said order dated 17.9.1994 was returned to the appellant-plaintiff. 3. It appears that the appellant-plaintiff contacted a lawyer, namely Chhabil Dass, Advocate, at Shimla, soon after the passing of the aforesaid order. A fresh suit was filed in this Court as the original jurisdiction in matters involving property worth more than Rs.2,00,000/- vested in this Court during those days. That suit was filed on 2.5.1995. In that suit one Anjana was impleaded as one of the defendants, though she had died, when the matter was pending before the Sub Judge and her name had been ordered to be deleted. Satya Devi, another legal heir of deceased Kalyan Singh, had not been impleaded, even though she was a party to the suit before the Sub Judge and was alive at the time of institution of the suit in this Court and is still also alive. …3… 4. Suit in this Court having not been filed within reasonable time after the return of the plaint by the Sub Judge, an application under Section 14 of the Limitation Act was moved for exclusion of the time spent in the Court of Sub Judge. Another application, under Order I Rule 10 CPC was moved, in which it was alleged that by mistake Anjana had been impleaded as defendant in place of Satya Devi and that this mistake took place, because in the order of return of plaint, Anjana was named as one of the defendants and Satya Devi’s name was not there. 5. Learned Single Judge has dismissed both the applications, vide impugned orders. 6. We have heard learned counsel for the parties and gone through the record. 7. It appears that the plaintiff pleaded before the learned Single Judge that the suit, in this Court, could not be filed within time on account of the clerk of Advocate, engaged for filing the suit, having misplaced the papers and having forgotten the instructions of the counsel. Plaintiff filed his own affidavit as also the affidavit of his counsel’s clerk to this effect. We have gone through the affidavits of the plaintiff as also the clerk of the Advocate, engaged by the plaintiff. As per these affidavits, plaintiff had engaged counsel, soon after the return of the plaint. Stamp papers for drafting the plaint had been purchased on 9.3.1995 and the plaint was drafted on 13.3.1995, but thereafter the clerk misplaced the papers and also forgot about the case. …4… Declaration to this effect in the aforesaid affidavits is corroborated by the fact that stamp papers on which the plaint is drafted were purchased on 9.3.1995, per endorsement of the Stamp Vendor on the stamp papers on which the plaint is typed as also the fact that the date of typing the plaint is 13.3.1995. However, there is no explanation on the part of the plaintiff for not presenting the plaint prior to 9.3.1995, even though plaint was returned in September, 1994. 8. In view of the above stated position, learned Single Judge ought not to have dismissed the application under Section 14 of the Limitation Act. It should have passed the order for the exclusion of time spent in pursuing the case in the subordinate Court at Paonta Sahib and that the suit could proceed subject to the law of limitation and the objection regarding limitation, which the defendants could have raised. 9. As regards application under Order I Rule 10 CPC, we find from the record that even though Anjana, who was defendant before the Sub Judge, was reported to have died, the trial Court by mistake wrote in its order of return of plaint that it was Satya Devi, who had died and Anjana was named as living defendant in the memo. of parties. This appears to have led to the mistake on the part of the counsel, engaged by the plaintiff for filing the suit in this Court and that is why instead of Satya Devi, Anjana was …5… made defendant and Satya Devi’s name was omitted under the wrong impression that she was dead. 10. In view of aforesaid factual position, application under Order I Rule 10 CPC also ought not to have been dismissed and the impleadment of Satya Devi should have been allowed, which, of course, would have been subject to the provisions of sub-rule (5) of Rule 10 of Order I CPC and Section 21 of the Limitation Act. 11. In view of the above stated position, appeal is accepted. Both the impugned orders of the learned Single Judge are set aside. Application, under Order 1 Rule 10 CPC filed by the plaintiff is allowed and Satya Devi is ordered to be impleaded as defendant. However, her impleadment is subject to the law of Limitation, in terms of the provision of sub-rule (5) of Rule 10 of Order I CPC and Section 21 of the Limitation Act and also subject to the objection regarding limitation, which the defendants may raise. Similarly, application, under Section 14 of the Limitation Act is also allowed and the time spent in pursuing the matter before the learned Sub Judge is allowed to be excluded. We may clarify that by this order we are allowing the exclusion of only that much of time during which the suit remained pending in the trial Court. Our order does not cover the period from the date of return of the plaint by the learned Sub Judge to the date of institution of the suit in this Court. This aspect of the matter shall be examined by the trial Court in the light of …6… legal position on the point and the explanation which the plaintiff has offered or may further offer during trial. Appeal is disposed of accordingly. (Surjit Singh), J March 11, 2010 (ss) (Rajiv Sharma), J.