- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO. 10 OF 2010. 1 Smt. Baby S. Prabhu Dessai, ( since deceased deleted), d/o Ram Phadte Dessai, wife of late Shashikant Prabhu Dessai, 2 Shri Chandrashekhar S. Prabhu Dessai, S/o late Shashikant Prabhu Dessai, aged 32 years, service, 3 Shri Pravin S. Prabhu Dessai, s/o of Shashikant Prabhu Dessai, aged 28 years, service, 4 Miss Pratibha S. Prabhu Dessai, d/o late Shashikant Prabhu Dessai, aged 30years, housewife, All r/o Ghotmarad, Kakoda, Curchorem, Goa. 5 Shri Anant G. Prabhu Dessai, S/o late Ganesh Prabhu Dessai, aged about 60 years, retired, married and his wife, 6 Mrs. Lata A. Prabhu Dessai ( since deceased) Both r/at H. No. 188/14, Near Atlantic Spinning and Weaving Mill, Xeldem, Quepem, Goa, - 2 - ( since deceased, represented by her legal representatives) 6A Miss Presha A. Prabhu Dessai, d/o deceased, Advocate, major in age. 6B Mr. Girish A. Prabhu Dessai, d/o deceased, Service, major in age. 6C Miss Pallavi A. Prabhu Dessai, d/o deceased, housewife, major in age. 6D Miss Seema A. Prabhu Dessai, d/o deceased, housewife, major in age. All r/at H. No. 188/14, Near Atlantic Spinning and Weaving Mill, Xeldem, Quepem, Goa, …..... Petitioners Versus 1 Smt. Satyabhama P. Prabhu Dessai, d/o late Manju Fal Dessai, wife of late Premanand Prabhu Dessai, aged about 55 years, housewife, 2 Mrs. Rakshama P. Prabhu Dessai, d/o late Premanand Prabhu Dessai, aged about 29 years, service, - 3 - 3 Mrs. Roopa P. Prabhu Dessai, d/o late Premanand Prabhu Dessai, aged 31 years, professional, All herein above are Indian Nationals and r/at H. No. 1096, Ghotmorod, Kakoda, Curchorem, Goa. 4 Shri Gaurish P. Prabhu Dessai, s/o late Premanand Prabhu Dessai, aged 30 years, service, r/o H. No. 1096, Ghotmorod, Kakoda, Curchorem, Goa. 5 Mrs. Deepa S. Prabhu Dessai, d/ o late Premanand Prabhu Dessai, aged 32 years, housewife, married and her husband, 6 Shri Shantadas V. Dessai, s/o Shri Vishnu Dessai, aged 41 years, service, Both Indian Nationals and r/at Cuncolim, Salcete, Goa. …..... Respondents. Mr. Nitin Sardessai, Advocate with Mr. D. Shirodkar, Advocate for the petitioners. Mr. Shivan Dessai, Advocate for the respondents. - 4 - Coram:- N. A. BRITTO, J. Date:- 22nd July, 2010. ORAL JUDGMENT Heard. Rule By consent heard forthwith. 2. In this writ petition, the defendants in Regular Civil Suit No. 26/2002/B challenge the order of the first Appellate Court in Regular Civil Appeal no.73/2009 which has allowed the application filed by the plaintiffs to join the minor son of plaintiff no.1 and the husbands of her daughters of plaintiff nos. 2 and 3, as appellants( plaintiffs) in the suit pursuant to an application filed by the plaintiffs/appellants under Order 1, Rule 10, of C.P.C., dated 17.9.2009. 3. There is no dispute that the said defendants in their written statement had taken a plea of non joinder, stating that the suit was bad for non-joinder of proper and necessary parties. They had further pleaded that all the parties to the consent decree and the deed of partition and other family members of the said parties as also all the - 5 - heirs of late Ganesh Prabhu Dessai were essential parties to the present suit. 4. Admittedly, the defendants had not specified in their written statement the names of the persons in absence of whom the suit was bad for non-joinder. Issue was framed by the Trial Court in relation to non-joinder and, it came to be partly answered in favour of the defendants but not in the light of plea taken by them, and as a result the suit came to be dismissed. 5. Prior to that PW1 was examined on 19.6.2008 and it is at that time that defendants brought to the light, that the minor son of plaintiff no. 1 was not joined and so also husbands of plaintiff nos. 2 and 3 who were married in the years 2004 and 2007, respectively and to that extent learned trial Court held that the suit of the plaintiffs was bad for non-joinder. This finding is recorded in para 20 while dealing with issued no. 4 by learned trial Court. As rightly observed by the learned trial Court in answering issue no. 4 in the negative, that, non- joinder of Saplesh, minor son of plaintiff no.1 and husbands of plaintiff - 6 - no. 2 and 3 was fatal to the suit of the plaintiffs. 6. The plaintiffs, therefore, filed an appeal in the year 2009 and filed the said application dated 17.9.2009 stating that the said Saplesh who was minor had now attained majority but inadvertently was not joined as plaintiff in the suit. The plaintiffs also stated that the husbands of plaintiff nos. 2 and 3 were not joined and their interest was not conflicting with the interest of the appellants/plaintiffs and therefore no prejudice would be caused to the defendants in case three appellants/plaintiffs were joined as parties to the appeal. 7. Learned first appellate Court referred to the provisions of Order 1, Rule 10 (2) C.P.C., 1908 as well as to section 21( 1 ) of the Limitation Act, 1963 and observed that in terms of provision of section 21(1) of the Limitation Act, 1963, and held that the Court was to be satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith and therefore it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Learned first Appellate Court referred - 7 - to the case of Ramalingam Chettlar( 2001(3) S. C. 179) wherein it was held that Court if satisfied that a new plaintiff or defendant were omitted to be added or substituted due to mistake in good faith, the Court may direct that the suit, as regards the newly added or substituted party, shall be deemed to have been instituted on an earlier date. 8. Learned First Appellate Court observed that the contents of the application filed by the petitioners in terms of Order 1, Rule 10, C.P.C. was verified on oath, stating that inadvertently the minor son Saplesh was not added as a party and that appellant nos. 2 and 3 were married in the year 2004 and 2007 and as such their husbands were not joined and therefore came to the conclusion that there was mistake made in good faith resulting in said three persons not being joined as parties and further held that they be deemed to have been added in terms of proviso to section 21(1) of the Limitation Act, 1963. 9. Shri Sardessai, learned counsel appearing on behalf of the defendants/respondents in Regular Civil Appeal no.73/2009 has placed - 8 - reliance on the State of Kerala vs. Sridevi and others (2000(9) SCC 168) and has submitted that although there is no specified period under Order 1, Rule 10 to make an application, any such application had to be filed within three years under Article 137 of the Limitation Act. Learned Counsel also has placed reliance on Vasant Permanand Muley Vs. Aurangabad Municipal Council and ors. (2009(3) ALL MR 1 and has submitted that if a party which is necessary party not being joined after a period of limitation, the suit will have to be dismissed, reason being that the suit could be said to be a properly constituted suit only when necessary parties was joined in the suit. Shri Sardessai has also placed reliance on Karuppaswamy and others vs. C. Ramamurthy, (1993(4) SCC 41, and has submitted that in invoking section 21 of the Limitation Act, an averment that a mistake was made in good faith by impleading a dead person in the suit should be made and the Court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having been occurred in good faith and it is court's satisfaction alone that breathes life in the suit. - 9 - 10. On the other hand Shri Dessai, learned counsel on behalf of the respondents, has submitted that the ratio of the judgment in State of Kerala (supra) was that there could not be any abatement upon the death of sole respondent in a case where the judgment was delivered by the Court after the death had taken place. Learned counsel has submitted that all major children of plaintiff no.1 were joined as parties to the suit filed by her ( Plaintiff no.1) and that the plaintiffs were under a bonafide belief that minor son of plaintiff no. 1 was not required to be joined and for that reason the plaintiffs had not joined him as a party to the civil suit. Learned counsel submits that the plaintiffs were not to derive any benefit by not joining the said minor son of plaintiff no.1 and husbands of plaintiffs/appellants no. 2 and 3 who had got married in the year 2004 and 2007 respectively. He submits that they were not joined due to an inadvertent mistake. Learned counsel has placed reliance on Division Bench Judgment of this Court in Chitralekha Builders Vs. G. I.C. Employees, 2005(5) Bom. C.R. 764, wherein with reference to sub rule 2, of Rule 10, of Order 1, it has been stated that the object behind the said provision is to discourage contests on technical pleas, and to save honest and bonafide claimants from being - 10 - non-suited. The Division Bench has also referred to the case of Razia Begum ( AIR 1958 SC 886) wherein it was observed, after considering various judgments, that (i) the question of addition of parties under Order 1, Rule 10 C.P.C. is generally not one 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. (ii) that in a suit relating to the property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject matter of litigation. 11. That the parties can be joined at the appellate Court. Shri Dessai has placed reliance on Hardatt Sharma Vs. M/s Jaikishen Shamlal and Sons and others, AIR 1983 J & K 129 wherein it has been observed that appeal being the continuation of the suit, a person may be added as party to it, even at the stage of the appeal, provided his addition is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. - 11 - 12. Admittedly, issue of non-joinder initially framed was not answered in favour of the defendants because of the plea taken by them but because in the course of evidence of the plaintiffs on or about 19.6.2008 it had come to light that the plaintiffs had not joined the said minor son who later became major, and husbands of plaintiff no. 2 and 3 who had got married much after filing of the suit in the year 2004 and 2007. As rightly submitted by Shri Dessai, learned counsel on behalf of the plaintiffs/appellants the non-joinder of said three persons is bonafide and that is also a conclusion arrived at by the learned first Appellate Court and being so, in my view it calls for no interference in extraordinary jurisdiction. Consequently this writ petition fails and it is hereby dismissed. 13. Rule discharged with no order as to costs. N. A. BRITTO, J. vn*