1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 261 OF 2007 1. Shri Sambhaji Vishnu Karapurkar @ Sambhaji Vishnu Gaokar, Son of late Vishnu Raja Gaokar @ Vishnu Raja Karapurkar. Major in age, married, businessman, R/o. Bicholim-Goa, at present residing at House No. 52, Panaji-Goa. 2. Shri Ghanashyam Tukaram Gaokar, s/o. Tukaram Ghanashyam Gaokar, major in age, married, agriculturist, resident of H.No. 48, Karapur, Sankhali-Goa. .... Petitioners V/s 1. Smt. Taramati Arjun Gaokar, Widow of Arjun Jagannath Arjun Gaokar, Major in age, housewife. 2. Shri Ramesh Arjun Gaokar, S/o. late Arjun Jagannath Gaokar, Major in age, married, businessman. 3. Smt. Viyanga Ramesh Gaokar, W/o Ramesh Arjun Gaokar, Major in age, housewife. 4. Shri Mohan Arjun Gaokar, S/o. late Arjun Jagannath Gaokar, Major in age, married, Government servant. 5. Smt. Manda Mohan Gaokar, W/o. Mohan Arjun Gaokar, Major in age, married, housewife. 6. Shri Sandeep Arjun Gaokar, S/o. late Arjun Jagannath Gaokar, Major in age, bachelor. 7. Shri Rajendra Arjun Gaokar, 2 S/o. late Arjun Jagannath Gaokar, Major in age, married, businessman. 8. Smt. Anuradha Rajendra Gaokar, W/o. Rajendra Arjun Gaokar, Major in age, housewife. 9. Sumitra Arjun Gaokar, Daughter of Arjun Jagannath Gaokar, Major in age, unemployed. 10. Ms. Sarita Arjun Gaokar, Daughter of Arjun Jagannath Gaokar, Major in age, unemployed. 11. Smt. Babi Kashinath Gaokar, widow of Kashinath Jagannath Gaokar, major in age, housewife, All defendants no. 1 to 11 are resident of House No. not known, Karapur, Sankhali-Goa. 12. Smt. Sunita Divakar Kolwalkar, D/o. Kashinath Jagannath Kolwalkar, Major in age, married, housewife. 13. Smt. Divakar Kolwalkar, Son-in-law of Kashinath Jagannath Gaokar, Major in age, married, serviceman, Both defendants no. 12 and 13 are resident of Kolwale, Bardez-Goa. .... Respondents Mr. M.S. Joshi, Advocate for the Petitioners. Mr. Sudin M.S. Usgaonkar, Advocate for Respondents no. 2,3, 5 to 8 & 10. CORAM : N.A. BRITTO, J. DATE : 10th JULY, 2008 ORAL JUDGMENT : Rule. By consent heard forthwith. 3 2. Challenge in this Writ Petition is to the order dated 14/06/2007 of the learned Civil Judge Senior Division, Bicholim in Special Civil Suit No. 30/2000/A, by which an application dated 16/12/2006 to add 125 persons as plaintiffs, has been rejected by the learned trial Court on the ground that there was no evidence on record to show that the said proposed plaintiffs are the legal heirs of the persons mentioned in para 5 of the plaint. 3. Two plaintiffs filed the said suit for declaration that the plaintiffs along with the legal heirs of the persons mentioned in the “deed of transaction, agreement and obligation dated 19/11/1944” are the co-owners of the suit property and for a further declaration that the names of late Arjun Jagannath Gaonkar and Kashinath Jagannath Gaonkar were wrongly recorded in the occupancy column of Survey No. 192/1 and 191/00 of Karapur Village and also for other incidental reliefs. The plaintiffs had pleaded that the suit property was being enjoyed in common by the plaintiffs i.e. two of them and the legal heirs of late Sanvlo Bivam Gaonkar, Boscora Locximona Gaocar, Vishnu Raja Gaocar, Vishvonath Ramchandra Gaocar, Cantaram Muran Gaocar, Visvonath Ramchandra Gaocar, Deu Vencatexa Gaocar, Rautu Camum Gaocar, Tucaramo Ganzama Gaocar. The plaintiffs pleaded that plaintiff no. 1 is the son of Vishnu Raja Gaocar and plaintiff no. 2 was the son of Tucaramo Ganozama Gaocar. The suit was filed on or about 22/09/2000 claiming that the cause of action had arisen on 20/08/2000. 4 4. The defendants no. 1 to 13 had contested the suit by filing written statement dated 6/10/2000 and defendants no. 14 & 15 had contested the suit by filing written statement in February, 2002. The defendants no. 1 to 13 had pleaded that a suit for declaration ought to have been filed by all the allotees along with the grantor (Mocasador) and they ought to have been parties to the suit. The defendants had stated that there was already a decree in Civil Suit No. 44/69 that the suit property belonged to Jagannath and his heirs...etc. 5. Defendants no. 14 and 15 had stated that the suit was bad for non- joinder of necessary parties namely the heirs of late Sanvlo Bivam Gaonkar, Boscora Locximona Gaocar, Vishnu Raja Gaocar, Vishvonath Ramchandra Gaocar, Cantaram Muran Gaocar, Visvonath Ramchandra Gaocar, Deu Vencatexa Gaocar, Rautu Camum Gaocar, Tucaramo Ganzama Gaocar. The said plaintiffs also pleaded that the suit was barred by limitation since the claim of the plaintiffs was based on the said transaction dated 19/11/1944. 6. It appears that after the plaintiffs started with their evidence on 16/12/2006 that the application came to be filed by the said two plaintiffs to join another 125 persons as plaintiffs. In filing the said application, reference was made to certain statements made by plaintiff no.1 conceding that he had not joined all the legal heirs of Savlo, Bhaskar, Vishnu, Vishwanath, Shantaram, Deu, Ravlu and Tukaram Gaonkars, etc. The said application 5 came to be filed stating that since the suit was of declaratory in nature all the co-owners should be necessary parties to the present suit as the plea of non- joinder of the parties goes to the root of the suit and its is absolutely necessary to add the said persons, being co-owners as plaintiffs to the present suit i.e. from plaintiff no. 3,4,5 onwards. 7. The learned trial Court, as already stated, rejected the said application filed under Order 1, Rule 10, CPC because there was no evidence on record to show that the proposed plaintiffs were the alleged legal heirs of the persons who were mentioned in para 5 of the plaint. The learned trial Court also stated that in case the said application was granted, it would cause prejudice to the defendants who had taken the plea of non-joinder. 8. Counsel on behalf of the petitioners/plaintiffs submits that there was no restriction for the Court to have allowed the said application in terms of Order 1, Rule 10(2) which states that parties can be joined at any stage of the suit. Emphasis has been placed on the aforesaid provision which states that 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 6 presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 9. Learned Counsel further points out that the proposed plaintiffs ought to be added were the legal representative of the co-owners whose names were found pleaded in para 3 of the plaint and therefore the learned trial Court was not at all justified in rejecting the application since the said addition could have been made by the plaintiffs at any stage of the suit. 10. Learned Counsel had placed reliance on the cases of M/s. Chitralekha Builders & Anr. V/s. G.I.C. Employees Sonal Vihar Co-op. Hsg. Soc. Ltd. & Ors. (2005 (4) ALL MR 584) and Amit Kumar Shaw & Anr. V/s. Farida Khatoon & Anr. (2005 (5) ALL MR (S.C.) 458). In the first case, a Division Bench of this Court has stated that the object behind Rule 10(2) of Order 1 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this rule, a person may be added as a party to a suit in the following two cases : (1) when he ought to have been joined as plaintiff or defendant, and is not joined so, or (2) when, without his presence, the questions in the suit cannot be completely decided. 7 In the second case, the Apex Court has stated that the power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this Rule, a person may be added as a party to a suit in the following two cases: (1) when he ought to have been joined as plaintiff or defendant, and is not joined so, or (2) when, without his presence, the questions in the suit cannot be completely decided. 11. On the other hand, Shri Usgaonkar, the learned Counsel on behalf of the defendants has submitted that the plaintiff had filed the suit on 22/09/2000 pleading a cause of action which had taken place on 20/08/2000 and the joinder of proposed plaintiffs on or about 16/12/2006 was clearly time barred. Learned Counsel on behalf of the defendants submits that the provisions of Order 1, Rule 10(2) are subject to the restriction of the Limitation Act, 1963 and in this context, learned Counsel has placed reliance on the case of Ramprasad Dagaduram V/s. Vijaykumar Motilal Hirakhanwala & Ors. (AIR 1967 SC 278), which case, Shri Joshi on behalf of the plaintiffs has sought to distinguish on the ground that what had happened in that case was at the appellate stage and the suit there was filed by the sole heir which is not the case herein. Shri Joshi further points out that in this case the trial is still pending and the plaintiffs have approached the Court at an early stage. 8 12. Order 1, Rule 10, Sub rule 5, also provides that subject to the provisions of the Indian Limitation Act, 1877, the proceedings against any person added as defendant shall be deemed to have began only on the service of summons. 13. Section 21 of the Limitation Act, 1963 deals with the effect of substituting or adding new plaintiff or defendant. Subsection 1 thereof provides that: Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party: Provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Sub-section (2) further provides that nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff. 14. The defendants have taken the plea of limitation that the suit filed by the plaintiffs, as it is, without joining 125 proposed plaintiffs, is time barred, but that is another matter which the trial Court is bound to decide. Learned Counsel on behalf of the plaintiffs has not been able to make any statement whether the said application proposing to add 125 persons as plaintiffs was signed by them. In my view, such an application could have been entertained to be added as plaintiffs only in case they had signed the application and not 9 otherwise. Two plaintiffs without the consent of others could not have certainly insisted that 125 more persons should be joined to the suit filed by them. The statement of law on the subject can be seen from para 19 of the judgment of the Apex Court. The Apex Court has stated that: The Court has power to add new plaintiff at any stage of the suit, and in the absence of a statutory provision like Section 22 (now Section 21), the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted. But the policy of Section 22 is to prevent this result, and the effect of the section is that the suit must be regarded as having been instituted by the new plaintiff when he is made a party. (see Ramsebuk v. Ramlall Koondoo, (1881) ILR 6 Cal 815. The rigour of this law has been mitigated by the proviso to Section 21(a) of the Indian Limitation Act, 1963, which enables the Court on being satisfied that the omission to include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Unfortunately, the proviso to Section 21(1) of the Indian Limitation Act, 1963 has no application to this case, and we have no power to direct that the suit should be deemed to have been instituted on a date earlier than November 4, 1958. In para 21, the Court observed that the High Court had power to join Mahabalkumari as a party plaintiff under Order 1, Rule 10 of the Code of Civil Procedure and to join Rajkumari and Premkumari as defendants under Order 1, Rule 10(2) and to allow consequential amendments of the plaint under Order 6, Rule 17. But having regard to the bar of limitation, the added parties are not entitled to obtain any relief. 15. Reverting to the facts of the case, it is not the case of the plaintiffs that they did not know that the proposed plaintiffs were not required to be joined as plaintiffs or defendants. In fact, the plaintiffs did mention in para 3 the names of persons to whom the property belonged and therefore it is obvious that the said persons or upon their death, their legal representatives were 10 required to be joined as parties to the suit in case the plaintiffs were seeking a declaratory relief. Specifically, the issue of non-joinder was brought to the notice of Court by the defendants when they filed their written statements. According to the plaintiffs, the cause of action arose on 20/08/2000 and the proposed plaintiffs are sought to be joined on or about 16/12/2006. Needless to say, the suit by the proposed plaintiffs would be clearly time barred to obtain the relief sought and in such a situation no fault could be found with the impugned order in dismissing the application to join the said 125 persons as plaintiffs. 16. There is no merit in this Writ Petition, therefore the same is hereby dismissed. Rule discharged. N.A.BRITTO.J. NH/-