- (1.) Challenge in the present petition is to the order dated 9.5.2011, passed by the learned court below, whereby the application filed by respondent No. 1-plaintiff for impleading the petitioners as defendants in the suit, was allowed. Briefly, the facts of the case are that late-Dewan Chand Setia entered into an agreement to sell dated 26.6.2002 for sale of House No. B-08/446, situated on Radaur Road, Camp Yamuna Nagar, District Yamuna Nagar for a total sale consideration of Rs. 10,00,000/-. Earnest money of Rs. 1,00,000/- was paid. The last date for execution of the sale deed was fixed as 31.8.2002. The vendor having not executed the sale deed, various notices were issued by respondent No. 1-plaintiff on 28.8.2002, 4.9.2002 and 26.9.2002. The suit for possession by way of specific performance of agreement to sell was filed by respondent No. 1-plaintiff on 31.8.2005 against the legal heirs of Dewan Chand Setia, as he had expired. During the pendency of the suit, an application under Order 1 Rule 10 CPC was filed for impleading the petitioners also as defendants in the suit being legal heirs of deceased-Dewan Chand Setia. The application having been allowed by the learned court below vide impugned order dated 9.5.2011 that the petitioners, who have been directed to be impleaded as defendants, are before this court.
(2.) Learned counsel for the petitioners submitted that the learned court below has failed to deal with the objection raised by the petitioners regarding the suit against them being time barred either on the date the application for impleading them as defendants in the suit was filed or the date on which the court allowed the same. An objection to that effect was taken, but the same has not been properly dealt with by the learned court below. Even in the application, the prayer was not that the petitioners should be deemed to be impleaded as party from the date of filing of the suit. He further submitted that in terms of Order 1 Rule 10(5) CPC, a suit against a newly added defendant shall be deemed to have been filed only on the date service of the defendant is effected. In support of the submissions, reliance was placed upon a judgment of this court in Om Parkash v. Darshan Singh, 2004 136 PunLR 539.
(3.) On the other hand, learned counsel for respondent No. 1-plaintiff submitted that while directing impleadment of the petitioners as defendants in the suit, while allowing the application filed by the plaintiff, the learned court below placed reliance upon the provisions of Section 21 of the Limitation Act, 1963 (for short, "the Act"), which enables the court to implead parties from the date the suit was initially instituted, in case the mistake is bonafide. In support of his contention that mistake of the plaintiff white not impleading the petitioners as defendants in the suit being legal heirs of deceased-De-wan Chand Setia at the time of initial filing was bonafide, reference was made to paragraph No. 1 of the plaint, where it was stated that the defendants are the only legal heirs of deceased-Dewan Chand Setia. While filing written statement, the defendants in the suit, who are none else than widow and sons of deceased-Dewan Chand Setia, did not raise any plea regarding the suit being bad on account of non-joinder of necessary parties as all the legal heirs had not been impleaded. The averments made by the plaintiff in paragraph 1 of the plaint were admitted. Even in paragraph 10 of the written statement, it was stated by the defendants that they are the absolute owners of the property in dispute. Defendant No. 5, namely, the widow of deceased-Dewan Chand Setia, being one of the legal heirs, had appeared in the witness box as DW-2. Even in her cross-examination, she stated that she and her four sons are the owners of the property in dispute after the death of Dewan Chand Setia. In fact, the plaintiff came to know about the fact that there are other legal heirs of deceased-Dewan Chand Setia only when on 27.4.2010, application for amendment of the written statement was filed by the defendants seeking to take up the plea that the suit is bad for non-joinder of necessary parties. Immediately after notice was issued in the application, the plaintiff moved application under Order 1 Rule 10 CPC seeking to implead the legal heirs which, according to the defendants, had not been impleaded initially in the suit. In support of the submissions, reliance was placed upon Karuppaswamy v. C. Ramamurthy, 1993 AIR(SC) 2324 and Telagareddy Yesu Rama Eswara Prasad and another v. Life Insurance Corporation of India and others,2010 1 CCC 505.;