SURENDRA NATH SARKAR Vs. MANATAB MONIAN

JUDGEMENT

(1.) This Rule is directed against an order No. 102 dated 3-5-1976 passed by the Munsif, Additional Court, Ranaghat, in Title Suit No. 250 of 1964 By that order, the learned Munsif allowed an application filed by the plaintiffs 1 and 3 under Order 1, Rule 10 (2) of the Civil P. C. adding the heirs and legal representatives of plaintiff No. 2 as parties to the suit. The suit was for the declaration of the plaintiffs' title in the suit properties and for injunction restraining the defendants from interfering with their possession. It appears that in course of proceedings an application for amendment of the plaint was filed by the plaintiffs which was rejected and against that decision, the plaintiffs came up in revision giving rise to Civil Revision Case No. 2633 of 1965. While this Rule was pending, the plaintiff No. 2 and defendant No. 2 died and no application for substitution was made in time in respect of the aforesaid parties. Later an application for substitution after setting aside abatement was made but it appears that the application was dismissed and by an order dated Jan. 22, 1970, this Court held that the Rule having abated so far as defendants-opposite party No. 2 was concerned, it could not effectively proceed against the remaining opposite parties. The court further noted that one of the plaintiff-petitioners was also dead and no substitution was effected in his case either and the Rule was accordingly discharged. A review application giving rise to Civil Rule No. 1732 (R) of 1970 was also discharged by this Court by an order dated 12-7-1971. It may be noted here that Mr. Dutta Gupta, learned Advocate for the opposite parties states that the application for substitution in so far as the defendant-opposite party No. 2 is concerned was made within time but unfortunately the Court's attention was not drawn to the position before the aforesaid orders were passed. In this Rule it is not possible for me to consider this statement and/or to revise the aforesaid orders on that ground.

(2.) The plaintiffs Nos. 1 and 3 filed another application in the suit for substitution of the heirs and legal representatives of the aforesaid deceased parties after setting aside abatement. The said application was rejected by the trial court and an appeal therefrom was also dismissed. Thereafter on May 16, 1975, an application under Order 1 Rule 10 (2) of the Civil P. C. was filed for addition of the heirs and legal representatives of plaintiff No. 2 and defendant No. 2 in the present proceedings. This application has been allowed by the order impugned in this Rule.

(3.) Mr. Saha appearing for the defendants-petitioners has submitted that in the aforesaid circumstances it was not open to the court to allow an application adding the heirs and legal representatives of some deceased parties in the suit after the suit has abated in respect of the aforesaid parties. He has referred to the decision (Union of India v. Ram Charan) in which it was observed that the court is not to invoke its inherent powers under Section 151 of the Code for the purposes of impleading legal representative of a deceased respondent after the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representative of the deceased on record and when its application for setting aside abatement was not allowed on account of its failure to satisfy the court that there was sufficient cause for not impleading the legal representative of the deceased in time and for not applying for setting aside of the abatement within time. He has also referred to the decision in Rameswar Prasad v. Syam Beharilal in which the court also held that the discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as the deceased party is concerned. The court further observed that it had also wide discretion to pass such decrees and orders as the interests of justice demanded and such power is to be exercised in exceptional cases when its non-exercise would lead to difficulties in the adjustment of rights of the various parties. But not in case where the negligence of the appellant has resulted in abatement, 3-A. Mr. Dutta Gupta appearing for the opposite parties has submitted, on the other hand, that court has ample power in the interest of justice to allow an application under Order 1, Rule 10 (2) of the Civil P. C. in appropriate circumstances adding any person whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. He has referred to the decision in Lakhmichand v. Kachubhai reported in (1911) ILR 35 Bom 393 in which it was held that even when there was an abatement and the application for setting aside abatement was also not made within 60 days, in a partition suit all the parties should be before the court and that there was nothing in the C. P. C. limiting or affecting the inherent power of the court to make such orders as may be necessary for the ends of justice and in that case the parties were accordingly added in the proceeding. Reliance was also placed on the decision in Provat Chandra v. Rabindra Nath where it was held that even though the defendant has been given no power to make an application to set aside the abatement, the court has inherent power to set aside abatement and to enable the suit to be proceeded with and accordingly the court should exercise the inherent power to save the parties, the trouble and costs of a second partition suit and traverse the grounds already traversed. The court further held that the power under Order 1, Rule 10 of the Code of Civil Procedure is very extensive and there is no limitation curtailing or restricting the power of the court to add parties under Order 1, Rule 10 of the Code. In exercise of the power under this Rule, the court has power and should exercise that power to save a partition suit which has abated. Reliance was also placed on the decision in Khalil Ahmad v. Addl. District Judge, Gorakhpur in which it was observed that the court has been given the power to implead any person as a party when such implead-ment is necessary to enable the court to effectually adjudicate upon the questions involved in the suit. The inaction of the plaintiff to implead or bring on record a person as defendant in time cannot affect the court's power under Order 1 Rule 10 (2) of the Code. This was a euit for redemption of mortgage and one of the mortgagees died during the pendency of the suit and his heirs were not impleaded by the plaintiffs who were seeking redemption. An application was made beyond time under Order 22, Rule 4 of the Civil P. C. but that application was dismissed as time barred. The court referred to Supreme Court decision in Razia Begum v. Anwar Begum, in which it was observed that the question of addition of parties under Order 1, Rule 10 of the Civil 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 and accordingly there was no question of jurisdiction for interference. In the Allahabad case it was further observed that if necessary conditions exist, the court has power to direct impalement of any person and inaction of a plaintiff cannot abate the right of the court to implead him as a party in the suit in exercise of its jurisdiction under Order 1, Rule 10 (2) of the Civil P. C.