RAM KUMAR Vs. UNION OF

JUDGEMENT

(1.) THIS application dated 21st July, 1976 purports to be under Order 22 rule 10 C. P. C. (though it is wrongly headed as section 22 rule 10 C. P C.). The application has been moved by one Maliabir Prasad Gupta s/o Late Shri Gopal Lal Gupta claiming that he is an assignee and, therefore, he seeks to be impleaded as a party in the appeal in place of the appellants. The brief allegations in the application are these: The suit giving rise to the instant second appeal was filed on the allegations that on an agreement entered into the year 1917 between the predecessor-in-interest of firm Radha Krishna Sheo Datt Rai and Oudh and Ruhel Khand Railway the firm was permitted to construct an assistant and spur siding on the main line to the Mill premises of the firm. The firm constructed the siding on its own costs and was the owner thereof. The railway was not entitled to jofn any other spur siding with the said firm siding for the benefit of any other person Shankar Hydraulic Press was a rival concern set up after the said agreement and the railway in contravention of the agreement aforesaid jofned the siding of the firm with a spur siding constructed for the benefit of the said rival firm, Shanker Hydraulic Press. The relief which was sought in the suit was for a prohibitory injunction in the beginning and when the disputed spur siding was constructed a relief of mandatory injunction was claimed for the removal of the spur siding. It is alleged that after the decision of the lower appellate court in 1959 certain developments took place, the effect of which was that the applicant became the assignee of the entire concern owned by the dissolved firm Radha Krishan Sheo Datta Rai. It is said that the respondent, Union of India, has served notice dated July 19, 1976. alleging that the agreement of 1917 and the subsequent agreement of 1944 stood determined. On the basis of the said facts the applicant prayed that he might be permitted to continue the appeal and he should be impleaded as an appellant in the appeal. The application has been opposed by the Union of India. It has filed a counter-affidavit wherein it has been contended that in fact there was no assignment as claimed by the applicant and that no assignment was validly possibly in view of clause 13 of the agreement relating to the main siding. Threfore, the alleged assignment, even if a fact, would be vofd and ineffective. It has also been contended that the applicant, Maliabir Prasad Gupta, sought to be brought on record as a legal representative of the deceased, Ram Kumar, but his prayer was rejected by the Court. This application is said to be an attempt to circumvent the order of the Court refusing to bring on record the applicant, Maliabir Prasad, as an heir of the deceased appellant, Shri Ram Kumar. An affidavit-in-rejofnder has been filed on behalf of the applicant.

(2.) THE first question which has arisen in these proceedings is whether the afforesaid application under Order 22 rule 10 is hit by the rule of limitation. Learned counsel for the Union of India, Shri Vinod Swarup, contended that the residuary Article 137 would be applicable to every application under the Civil Procedure Code for which no specific period of limitation is prescribed under some other article of the Limitation Act. He placed reliance on Chandradeo Pandey Sukhaeo Rai A. I. R. 1972 All. 504 where is has been laid down as under:

(3.) THE cases relied on are as follows: