SAVITABEN TRIBHOVANDAS Vs. HEMKUNVERBEN LAXMICHAND

JUDGEMENT

(1.) TWO questions of an unprecedented nature relating to the interpretation of sec. 281 A of the Indian Income Tax Act 1961 as amended by the Taxation Laws (Amendment) Act 1972 which came into force on November 15 1972 have been raised in this revisional application by original defendants Nos. 1 and 2 whose contention that the suit instituted by respondent No. 1 original plaintiff Hemkunverben was not maintainable was negatived by the trial Court which heard the relevant issue being issue No. 12 as a preliminary issue. Aforesaid two questions are :-

(2.) The basic facts are not in dispute. The suit giving rise to this revision application viz Special Suit No. 52/72 has been instituted by Hemkunverben on the premise that certain property (Fixed Deposit Receipts) standing in the joint names of Makuben the paternal grandfather of defendants Nos. 1 3 4 and 5 and Savitaben (defendant No. 1) really belonged to the plaintiff and that Makuben and Savitaben were her benamidars. A declaration to this effect was sought along with a consequential injunction. The suit was resisted by petitioners (original defendants Nos. 1 and 2) inter alia on the ground that the suit was not maintainable in view of the aforesaid provision viz. sec. 281A which in so far as material is in the following terms :

(3.) The grievance of the learned counsel for the petitioners in regard to the view taken by the trial Court that the aforesaid provision (sec. 281A) will not apply even as against newly added defendants who are impleaded for the first time subsequent to the enactment of the said provision (it was enforced on November 15 1972 appears to be well founded. The suit was initially instituted against only one person namely petitioner No. 1 Savitaben The rest of the defendants namely petitioner No. 2 Tribhovandas and opponents Nos. 2(a) to 2(c) were impleaded later on pursuant to an order passed by the learned trial Judge on February 2 1975 i.e some 22 years after the enforcement of sec. 281A The learned trial Judge has taken the view that since the suit as agAinst original defendant No. 1 Savitaben had been instituted prior to the enforcement of sec. 281A and since the rest of the defendants were only formal parties there was no bar to the maintainability of the suit as against the newly added defendants who were impleaded for the first time after the enforcement of sec. 281A. The learned trial Judge has overlooked the provision contained in sub-rule 5 of Rule 10 of Order I of the Code of Civil Procedure of 1908 in reaching this conclusion. It is provided by the sub-rule that subject to the provisions of the Indian Limitation Act of 1875 sec. 22 a proceeding as against any person added as defendant shall be deemed to have begun only on the service of the summons. It is therefore evident that so far as the newly added defendants are concerned the suit can be treated 85 having been instituted only on the date on which the summons of the amended plaint was served i. e. some 2 years subsequent to the enforcement of sec. 281A. The suit as against them cannot therefore be considered as maintainable unless the case falls within clause (a) (b) or (c) of sec. 281A(1). It is not contended on behalf of the plaintiff that either of the aforesaid three clauses is attracted. Under the circumstances as the matter stands to day there is no escape from the conclusion that the suit as against the newly added defendants is not maintainable. The learned trial judge has committed an obvious error in proceeding an the assumption that the newly added defendants are formal parties. The namely added defendants the son and grandsons of Makuben in whose name along with the name of Savitaben the Fixed Deposit Receipts stand (defendant No. 2 is the son of Makuben and defendants No. 3 4 & 5 are the grandsons of Makuben). The declaration sought by the plaintiff would bind the newly added defendants as well. Under the circumstances it cannot be said that they are formal parties. The view taken by the learned trial Judge cannot therefore be sustained. It must be held that the suit as against defendants Nos. 2 to 5 is not maintainable as the matter stands today.