Veerender Singh Siradhana, J. - (1.) IN the instant writ application, the petitioner/applicant (for short petitioner) has assailed the legality, validity and correctness of the order dt. 13.7.2011 passed by the learned Trial court dismissing the application under Order 1 Rule 10 of the Civil Procedure Code (for short the CPC). Briefly, the essential material facts necessary for appreciation of the controversy are: that the respondent/plaintiff (for short respondent) filed civil suit number 91/97, which has been subjected to cross appeal bearing CAR No. 40/02 (Brijendra Singh vs. Balaram) and CAR No. 42/02 (Lalaram vs. Bijendra Singh), which have been consolidated, and are pending hearing before the appellate Court. The petitioner having learnt about the pendency of the appeals, filed an application under Order 1 Rule 10 CPC in Appeal Number 40/02, pleading that since he had been out of Station w.e.f. 1995 -96, on account of his education; he learnt about the pendency of the appeal only on 14.7.2003. Since the subject matter of the appeal involves ancestral property, in which he too has right and interest, therefore, he be impleaded as a party to the appeal; The learned Court below having considered the facts, circumstances and material available on record, dismissed the application under Order 1 Rule 10 CPC by impugned order dt. 13.7.2011.
(2.) I have heard the learned counsel for the petitioner and perused the material available on record. The learned Court below while dismissing the application under Order 1 Rule 10 CPC, has recorded a specific reason to the effect that both the appeals arise out of the same judgment and order, and therefore, have been consolidated for hearing. The learned Court below further observed, in the impugned order, that in appeal number 42/02 (Lalaram vs. Bijendra), the petitioner has already been impleaded as a party, being legal heir of deceased Bijendra, as 1/5 and amended cause title has also been brought on record. It has been further detailed, out in Appeal Number 40/02, that an application by the appellant Chander @ Chanderbhan, is still pending for taking on record the legal heirs of Late Bijendra Singh wherein name of the petitioner appears as 1/5, being legal heir, though no order has been passed on that application. Be that as it may, once both the appeals have been consolidated, and the petitioner has already been impleaded as a legal heir in Appeal Number 42/02 and both the appeals are to be heard and decided together, the application preferred by the petitioner under Order 1 Rule 10 CPC, is without any substance since the petitioner has already been brought on record as a party to the appeals. The learned court below also made a formal order on the application under Order 22 Rule 4 CPC in appeal number 40/02 (Bijendra Singh vs. Lalaram), with a further direction to submit the amended cause little to the party concerned. The order passed by the learned Court below, in my opinion, suffers with no material illegality much less an error apparent on the face of record.
(3.) HAVING considered the facts, circumstances and material available on record, it is evident that the petitioner preferred the application under Order 1 Rule 10 CPC in the appeals. Therefore, the question for consideration is; whether in the instant case at hand, provisions of Order 1 Rule 10 CPC can be attracted, particularly in the face of provisions contained under Order 22 Rule 4 CPC, for substitution of legal heirs of a dead person in the appeal. In my opinion, the answer would be in negative in view of the maxim "Generalia Specialibus non derogant", which implies prevalence of special provision over the general.;