This power 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 of Civil Procedure. 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. The defendant or his L.Rs in a partition suit is equally interested as the plaintiff in having the properties in suit partitioned. In fact in the instant case the defendants have claimed that their share in the property be also partitioned by metes and bounds in this proceeding. The position of the parties in a partition suit is different from the position of the parties in ordinary suit. In a partition suit every party is in the position of the plaintiff and the Court in such cases should in exercise of the power under Order 1, Rule 10 add the L.Rs of a deceased party even after the suit is abated. The L.Rs of the deceased defendants are co-sharers and as such necessary parties in partition suit.
"Rebutting this argument, Sri N.S. Rao submits that this is not a suit for partition simplicitor. Though the deceased Gangu Belchadthi as plaintiff has claimed partition first defendant denied her right to share in the properties and the first defendant has filed appeal in this Court because his contention denying a right to share is negatived and therefore, on his failure to bring the legal representatives on record within the time prescribed his appeal against the findings of the Trial Court rejecting his contentions abates. Sri N.S, Rao submits that the law of limitation prohibits the appellant to bring the L.Rs of the deceased plaintiff on record beyond 90 days from the date of death. Sri N.S. Rao submits that an application has therefore been filed under Order 1, Rule 10 of the CPC to get over the prohibition under Order 22, Rule 4 of the CPC. Sri N.S. Rao submits that what he cannot do under Order 22, cannot be permitted to be done under Order 1, Rule 10 of the CPC. I find much force in this contention. It is worthy of note that nowhere in the affidavit filed in support of the present I.A. the applicant contends that he was not aware of the death of Gangu Belchadthi before the memo was filed in Court on 28-6-1995. The fact that Gangu Belchadthi is the sister of the applicant also is not disputed. The fact that they are residing in the close neighbourhood also is not disputed. Under such circumstances, it goes without saying that the applicant was very well aware of the death of Gangu Belchadthi from the date of her death which occurred on 26-7-1993. The application came to be filed after two years of the death. One could understand if this is a simple suit for partition where the right to share is not disputed. On the other hand, the main contention in the appeal appears to be that the Trial Court was wrong in awarding a decree for partition as claimed in the suit. When that is the contention of the appellant he cannot say that this is a simple suit for partition where the right to share is admitted. Under such circumstances, what I find is that the present application is one filed without bona fide intentions and one filed to circumvent the provisions of Order 22 of the CPC. I find lack of bona fides in the application and I, therefore, hold that the application cannot be sustained to get over the laches of the appellant. The application is therefore, dismissed and consequently, the appeal is dismissed as abated".
2. At the very outset, the learned Counsel for the respondents raised objection that the appeal has been dismissed by the Court below and that therefore, the petitioner ought to have filed an appeal under Order 43, Rule 1 of the CPC. From the perusal of the order referred above, it is clear that the Court has taken into consideration the bona fides of the parties which required to consider the application under Order 22, Rule 9 of the CPC. Forgetting for the moment that the application is filed under Order 1, Rule 10 of the CPC, Order 1, Rule 10 of the CPC gives an independent right to the parties to come on record but under Order 22, Rule 9 of the CPC and other relevant rules, it is for the parties to bring on record the L.Rs of the parties. That is also governed under Section 5 of the Limitation Act and a discretion is given to the Court to condone the delay and set aside the abatement order if there is abatement. In an application filed under Order 1, Rule 10 of the CPC the question of limitation does not arise more so in a suit for partition. Similar question arose before the Calcutta High Court in Provat Chandra Coomar and Others v Rabindra Nath Coomar and Others , wherein it is held as follows:--
"Even if the Court sets aside the abatement, the defendant is confronted with a difficulty equally formidable. Order 22, Rule 4 no doubt enables the defendant or his legal representative to make an application for substitution but the Limitation Act expressly provides that such an application must be made within 90 days. Though Section 5 of the Limitation Act has been made expressly applicable by Order 22, Rule 9 of the Code to an application to set aside an abatement, it has not been made applicable to an application, for substitution under Order 22, Rule 3 or Rule 4. It would therefore seem that a defendant after abatement is neither entitled to make an application to set aside an abatement or to make an application for substitution either. Even though the Court has inherent power to set aside an abatement, it would not enure to the benefit of the defendant or his legal representative in a partition suit having regard to the fact that the right to apply is time barred.
(9) There is however the provisions of Order 1, Rule 10 of the Code which is very wide in its terms and which would enable the L.R. of a deceased defendant to be added as a party. Order 1, Rule 10(2) provides:
"The Court may at any stage of the proceedings. . . order that the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in a suit be added".
This power 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 of Civil Procedure. 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. The defendant or his L.Rs in a partition suit is equally interested as the plaintiff in having the properties in suit partitioned. In fact in the instant case the defendants have claimed that their share in the property be also partitioned by metes and bounds in this proceeding. The position of the parties in a partition suit is different from the position of the parties in ordinary suit. In a partition suit every party is in the position of the plaintiff and the Court in such cases should in exercise of the power under Order 1, Rule 10 add the L.Rs of a deceased party even after the suit is abated. The L.Rs of the deceased defendants are co-sharers and as such necessary parties in partition suit. The direct authority in support of this proposition, is the decision of the Bombay High Court in the case of Lakshmichand Rewa Chand v Kachubhai Gulabchand. At page 395 of the report Scott, C.J. makes the following observations:--
"It is obvious, however, that in a partition suit all the parties should be before the Court. The suit has actually reached the stage of a commission to divide the property, and the applicant is a sharer. Nothing in the Code limits or affects the inherent power of the Court to make such orders as may be necessary for the ends of justice, and under Order 1, Rule 10, the Court may, at any stage of the proceedings, order that the name of any person whose presence may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit, be added. We therefore, order that the applicant be added as a defendant in the suit, being bound by all the proceedings up-to-date".
This suit is also for partition. The first defendant who suffered a preliminary decree preferred an appeal and the plaintiff was arrayed as first respondent. The plaintiff died and in her place her children were to be brought on record as legal representatives. But since the application under Order 22, Rule 9 was barred by time, the appellant filed this application under Order 1, Rule 10 of the CPC which is not controlled by Order 22, Rule 9 of the CPC. On the other hand, it is a independent provision. Therefore, the finding of the Court below that the appeal abates and the application is filed under Order 1, Rule 10 of the CPC only to circumvent the provisions of Order 22, Rule 4 of the CPC cannot be accepted. The appeal came to be dismissed only as the consequences of the dismissal of the application filed under Order 1, Rule 10 of the CPC. Therefore, the contention of the learned Counsel for the respondents that only appeal lies and revision petition cannot be entertained also is liable to rejected. If the application filed under Order 1, Rule 10 of the CPC is allowed by this Court, the consequent remedy of setting aside the dismissal order would enure to the benefit of the appellant therein. Under that circumstances, I am of the considered view that this petition deserves to he allowed.
3. Accordingly, this revision petition is allowed and the impugned order dismissing I.A. No. II is set aside and R.A. No. 165 of 1989 is restored on the file directing the Court below to permit the appellant to amend the appeal memo by bringing the L.Rs of the first respondent as respondents 1(a) to 1(i).
4. At this stage, the learned Counsel for the respondents submitted that the appeal has been pending since a very long time and the Court below may be directed to dispose of the same within three months. This submission has some force. The parties are fighting only on the limited question. However, the Court below is directed to dispose of the appeal as expeditious as possible preferably within three months from the date of receipt of this order.
5. Both the parties have undertaken to appear before the Court below on 10-12-1998.
6. Office is directed to send the records immediately.
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Karnataka High Court
Rojappa Alias Thabati Belchada vs Muthappa Belchada And Others on 24 November, 1998
Equivalent citations: ILR 1999 KAR 2108, 2000 (3) KarLJ 450
1. O.S. No. 42 of 1983 came to be filed by one Gangu Belchadthi for partition and separate possession of the suit property on the file of the learned Civil Judge (Senior Division), Udupi. The said suit came to be decreed and a preliminary decree was passed against the defendants. Being aggrieved by that preliminary decree, the first defendant therein preferred initially before this Court R.F.A. No. 443 of 1986, but subsequent to the amendment of Civil Courts Act, the appeal stood transferred to the II Additional District Judge, D.K., Mangalore and the same was registered in R.A. No. 165 of 1989. When the appeal was pending the first respondent/plaintiff died on 26-7-1993. The first respondent Counsel filed a memo reporting the death of the plaintiff/first respondent on 28-6-1995. Thereafter the first defendant/appellant filed I.A. under Order 1, Rule 10 of the CPC to bring the legal representatives of deceased plaintiff as respondents in her place. That application was opposed by the respondents and ultimately, the same came to be rejected by the learned Court below, the relevant paragraph reads as follows:--"Rebutting this argument, Sri N.S. Rao submits that this is not a suit for partition simplicitor. Though the deceased Gangu Belchadthi as plaintiff has claimed partition first defendant denied her right to share in the properties and the first defendant has filed appeal in this Court because his contention denying a right to share is negatived and therefore, on his failure to bring the legal representatives on record within the time prescribed his appeal against the findings of the Trial Court rejecting his contentions abates. Sri N.S, Rao submits that the law of limitation prohibits the appellant to bring the L.Rs of the deceased plaintiff on record beyond 90 days from the date of death. Sri N.S. Rao submits that an application has therefore been filed under Order 1, Rule 10 of the CPC to get over the prohibition under Order 22, Rule 4 of the CPC. Sri N.S. Rao submits that what he cannot do under Order 22, cannot be permitted to be done under Order 1, Rule 10 of the CPC. I find much force in this contention. It is worthy of note that nowhere in the affidavit filed in support of the present I.A. the applicant contends that he was not aware of the death of Gangu Belchadthi before the memo was filed in Court on 28-6-1995. The fact that Gangu Belchadthi is the sister of the applicant also is not disputed. The fact that they are residing in the close neighbourhood also is not disputed. Under such circumstances, it goes without saying that the applicant was very well aware of the death of Gangu Belchadthi from the date of her death which occurred on 26-7-1993. The application came to be filed after two years of the death. One could understand if this is a simple suit for partition where the right to share is not disputed. On the other hand, the main contention in the appeal appears to be that the Trial Court was wrong in awarding a decree for partition as claimed in the suit. When that is the contention of the appellant he cannot say that this is a simple suit for partition where the right to share is admitted. Under such circumstances, what I find is that the present application is one filed without bona fide intentions and one filed to circumvent the provisions of Order 22 of the CPC. I find lack of bona fides in the application and I, therefore, hold that the application cannot be sustained to get over the laches of the appellant. The application is therefore, dismissed and consequently, the appeal is dismissed as abated".
2. At the very outset, the learned Counsel for the respondents raised objection that the appeal has been dismissed by the Court below and that therefore, the petitioner ought to have filed an appeal under Order 43, Rule 1 of the CPC. From the perusal of the order referred above, it is clear that the Court has taken into consideration the bona fides of the parties which required to consider the application under Order 22, Rule 9 of the CPC. Forgetting for the moment that the application is filed under Order 1, Rule 10 of the CPC, Order 1, Rule 10 of the CPC gives an independent right to the parties to come on record but under Order 22, Rule 9 of the CPC and other relevant rules, it is for the parties to bring on record the L.Rs of the parties. That is also governed under Section 5 of the Limitation Act and a discretion is given to the Court to condone the delay and set aside the abatement order if there is abatement. In an application filed under Order 1, Rule 10 of the CPC the question of limitation does not arise more so in a suit for partition. Similar question arose before the Calcutta High Court in Provat Chandra Coomar and Others v Rabindra Nath Coomar and Others , wherein it is held as follows:--
"Even if the Court sets aside the abatement, the defendant is confronted with a difficulty equally formidable. Order 22, Rule 4 no doubt enables the defendant or his legal representative to make an application for substitution but the Limitation Act expressly provides that such an application must be made within 90 days. Though Section 5 of the Limitation Act has been made expressly applicable by Order 22, Rule 9 of the Code to an application to set aside an abatement, it has not been made applicable to an application, for substitution under Order 22, Rule 3 or Rule 4. It would therefore seem that a defendant after abatement is neither entitled to make an application to set aside an abatement or to make an application for substitution either. Even though the Court has inherent power to set aside an abatement, it would not enure to the benefit of the defendant or his legal representative in a partition suit having regard to the fact that the right to apply is time barred.
(9) There is however the provisions of Order 1, Rule 10 of the Code which is very wide in its terms and which would enable the L.R. of a deceased defendant to be added as a party. Order 1, Rule 10(2) provides:
"The Court may at any stage of the proceedings. . . order that the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in a suit be added".
This power 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 of Civil Procedure. 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. The defendant or his L.Rs in a partition suit is equally interested as the plaintiff in having the properties in suit partitioned. In fact in the instant case the defendants have claimed that their share in the property be also partitioned by metes and bounds in this proceeding. The position of the parties in a partition suit is different from the position of the parties in ordinary suit. In a partition suit every party is in the position of the plaintiff and the Court in such cases should in exercise of the power under Order 1, Rule 10 add the L.Rs of a deceased party even after the suit is abated. The L.Rs of the deceased defendants are co-sharers and as such necessary parties in partition suit. The direct authority in support of this proposition, is the decision of the Bombay High Court in the case of Lakshmichand Rewa Chand v Kachubhai Gulabchand. At page 395 of the report Scott, C.J. makes the following observations:--
"It is obvious, however, that in a partition suit all the parties should be before the Court. The suit has actually reached the stage of a commission to divide the property, and the applicant is a sharer. Nothing in the Code limits or affects the inherent power of the Court to make such orders as may be necessary for the ends of justice, and under Order 1, Rule 10, the Court may, at any stage of the proceedings, order that the name of any person whose presence may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit, be added. We therefore, order that the applicant be added as a defendant in the suit, being bound by all the proceedings up-to-date".
This suit is also for partition. The first defendant who suffered a preliminary decree preferred an appeal and the plaintiff was arrayed as first respondent. The plaintiff died and in her place her children were to be brought on record as legal representatives. But since the application under Order 22, Rule 9 was barred by time, the appellant filed this application under Order 1, Rule 10 of the CPC which is not controlled by Order 22, Rule 9 of the CPC. On the other hand, it is a independent provision. Therefore, the finding of the Court below that the appeal abates and the application is filed under Order 1, Rule 10 of the CPC only to circumvent the provisions of Order 22, Rule 4 of the CPC cannot be accepted. The appeal came to be dismissed only as the consequences of the dismissal of the application filed under Order 1, Rule 10 of the CPC. Therefore, the contention of the learned Counsel for the respondents that only appeal lies and revision petition cannot be entertained also is liable to rejected. If the application filed under Order 1, Rule 10 of the CPC is allowed by this Court, the consequent remedy of setting aside the dismissal order would enure to the benefit of the appellant therein. Under that circumstances, I am of the considered view that this petition deserves to he allowed.
3. Accordingly, this revision petition is allowed and the impugned order dismissing I.A. No. II is set aside and R.A. No. 165 of 1989 is restored on the file directing the Court below to permit the appellant to amend the appeal memo by bringing the L.Rs of the first respondent as respondents 1(a) to 1(i).
4. At this stage, the learned Counsel for the respondents submitted that the appeal has been pending since a very long time and the Court below may be directed to dispose of the same within three months. This submission has some force. The parties are fighting only on the limited question. However, the Court below is directed to dispose of the appeal as expeditious as possible preferably within three months from the date of receipt of this order.
5. Both the parties have undertaken to appear before the Court below on 10-12-1998.
6. Office is directed to send the records immediately.
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