BALKAR SINGH Vs. BALJINDER SINGH

JUDGEMENT

(1.) IN order to challenge sales dated 21. 6. 1972 and 11. 2. 1974 made by defendants No. 7 and 8, plaintiffs (respondents No. 1 to 7 herein) filed a suit for possession claiming agricultural land, the subject-matter of the sales, to be coparcenary property of Hindu Undivided Family. Defendants in their written statement, apart from denying averments made in the plaint, also prayed for the dismissal of the suit on the ground that on the date when the suit was instituted, defendant No. 1 was already dead. On this objection, plaintiffs made an application under Order X, Rule 10 of the Code of Civil Procedure, to implead legal representatives of defendant No, 1 as defendants to the suit. This application on contest was allowed. This order is being challenged in the present revision petition.

(2.) THE point in issue is squarely covered by decision of this Court in Joginder Singh and Ors. v. Krishan Lal (1977)79 P. L,r. 374, where it was held that while substituting the legal representatives by amendment under Order 1 Rule 10 (2) or under Section 153, C. P. C. the Court should bear in mind the difference in a case to which Limitation Act, 1908, applies and the case to which Limitation Act, 1963, applies, whereas in a case covered by the 1908 Act, the Court must go into the question of limitation before allowing a party to be added, the process would not be exactly the same under the 1963 Act. Where the Court would first decide the question of fact about the dead person having been impleaded by some bona fide mistake and then at the time of directing the representatives being brought on record either decide the question of limitation and grant or refuse the relief on the basis of decision on the question of limitation or come to a finding on the first point, and then proceed to go into the question of limitation and also deal with the prayer under the proviso if the same is invoked by any party. In either event, it would be futile to leave the question of limitation being decided with the main suit because it may result in unnecessary waste of time and energy of both the parties as well as the time of the Court. If on the decision of a question of limitation the party cannot be added and proviso is not invoked, the ratio of the judgment of the Supreme Court Ramprasad Dagaduram v. Vijaykumar Motilal Hirakhanwala (AIR 1967 S. C. 278) would apply, If the proviso is invoked, but the prayer therein is declined by the Court, again the situation would be the same. It is only if the suit against the newly added party is found to be within time that there would be any purpose in allowing the addition or substitution. Therefore, the trial Court must decide the question of limitation before or at the time of directing the impleading of the legal representatives of the persons who were dead before the institution of the suit and also decide the question arising under the proviso if the same is invoked by any party before actually impleading any such legal representative. "

(3.) LEARNED counsel has not been able to point out as to how the suit if brought today would not be within limitation particularly when some of the plaintiffs are minors who are seeking possession after ignoring sales on the ground that vendor was not competent to make sale of the property which belongs to the Hindu Undivided Family. Application for substitution was filed immediately when it was brought to the notice of the plaintiffs that defendant No. 1 had died before the institution of the suit. In this view of the matter, mistake in impleading defendant No. 1 as party to the suit seems to be bona fide. The Division Bench judgment of this Court in Amar Kaur v. Sadhu Singh AIR 1961 Pandh 57, relied upon by the counsel for the petitioners has no application to the facts of the present case as in that case the appeal filed in the name of a dead person was held to be a nullity.