KUNJ BEHARI Vs. K D CHURIWALA AND SONS HUF

JUDGEMENT

(1.) By this application the defendants seek dismissal of the petition on the ground that Rishi Kumar being necessary' party to the suit was added as a part after expiry or limitation and the suit has become incompetent and not maintainable. The application has arisen from the following facts. Shri Kunj Behari and Rishi Kumar filed this petition under Section 20 of the Arbitration Act praying that the Agreements dated 3-2-1979 and 6-2-1979 be directed to be filed in this court and further proceedings in the matter of appointment of Arbitrator may be taken. The suit was filed by both the petitioners through one counsel Mr. Sabharwal on 12-2-1985. Petitioner No. 2 Rishi Kumar filed an application 1. A. 939185 through another counsel. Mr. Mohinder Goel and praved that in view of the compromise arrived at between petitioner No. 2 and the respondent, the court may grant him necessary permission for sale and transfer of certain flats by the respondent ia favour of the petitioner No. 2 and may be allowed to withdraw his name from the array of the petitioners and the petition be continued in the name of other petitioner Kunj Behari Petitioner No. I only. The application was directed to be listed on 21-4-1985. In view of the fact that Mr. Mohmder Goel, Advocate, had filed a vakalatnama for petitioner No. 2, whereas previously both the petitioners were represented by one counsel Shri Sabharwal, Shri Sabharwal was discharged in respect of his vakalatnama as far as petitioner No. 2 was concerned. I. A. 939/85 was adjourned from time to time. Thereafter, the suit was listed on 1st October, 1985 when none appeared on behalf of the petitioners and the suit was dismissed for default. An application, I.A. 5701185, was filed on behalf of petitioner No. 1 under Order 9 Rule 9 Civil Procedure Code on 4th October, 1985 for setting aside the dismissal and restoration of the suit. The application was allowed on 30th October, 1986. The operative portion of the order reads as under :- "Application is, therefore, allowed and the suit is' restored to its original number, as far as respondent No. I is concerned. There is no application on behalf of respondent No. 2. The question whether the suit is maintainable only by plaintiff No. 1 will be considered on the next date of hearing. To be listed on 21-1-1987." The suit was listed on 22nd January, 1987 to decide the question whether the suit was maintainable only by petitioner No. 1. On that date, Mr. Goel appeared for petitioner No. 2 and requested that the matter might be adjourned so as to enable petitioner No. 2 to file an application for restoration of the suit qua him. Request was acceeded to and the matter was adjourned. In the meanwhile, petitioner No. 1 filed an application being I. A. 656187 under Order I Rule 10 Civil Procedure Code PRAYING THAT PETITIONER No. 1 may be permitted to transpose petitioner No. 2 as respondent No. 7 or any other order which may bejust and proper be passed. Petitioner No. 2 also moved an application being I. A. 663187 for restoration of the suit. The application was contested on behalt of the respondent and by order dated 22-4-1987 the application was dismissed. Application of petition No. 1 under Order I Rule 10 Civil Procedure Code was disposed of by order dated 30-11-1987. The prayer of petitioner No. I for transposing petitioner No. 2 as respondent was disallowed on the ground that the person who is to be transposed as plaintiff or defendant should be a party to the suit. Since petitioner No. 2 ceased to be a party to the suit, as the suit qua him was dismissed. He could not be transposed as a respondent. However, it was held that petitioner No. 2 was a party to the arbitration agreement and he was a necessary party for these proceedings. His presence was necessary for effectual and complete adjudication of all the questions involved in the suit. The application was allowed to the extent that petitioner was permitted to implead petitioner No. 2 as respondent in the suit. Now, this application, 1. A. 2343188, which is under disposal has been filed by the respondent seeking disposal of the suit on the ground that Rishi Kumar being necessary party was added as party vide order dated 30-11-1987 after expiry of the period of limitation and, therefore, the petition should be dismissed as having become barred by time. It is stated in the application that Rishi Kumar was added as a party under the provision of Order I Rule 10(2) Civil Procedure Code after expiry of the period of limitation. The proccedings against Rishi Kumar shall be deemed to have taken with the service of summons within the meaning of sub-rule (5) of Rule 10 Order I Civil Procedure Code but no such summons have yet been served, nor can any be served long after expiry of the limitation period.

(2.) The application is being opposed on behalf of Kuni Behari, petitioner No. 1. In the reply, it is stated that the suit on behalf of Rishi Kumar was not restored. As he was necessary party to the arbitration suit, the petitioner sought addition or transposition of Rishi Kumar in this suit. Notwithstanding the dismissal of Rishi Kumar's application for restoration of the suit the petitioner could still ask for addition of Rishi Kumar as a party to the suit. There is no question of limitation. Even otherwise the respondent has no locus standi to raise (bis objection. Rishi Kumar was always a party to the suit and there was no requirement to have him as respondent in this suit. It was only after Rishi Kumar's application for restoration was dismissed, the necessity of addition of Rishi Kumar arose.

(3.) I have heard the counsel for the parties. Contention of the applicant is that Rishi Kumar was necessary party to the suit. The suit qua him was dismissed. He was made a party to the suit by order dated 30-11-1987. On that date, when he was directed to be added as a party, the suit had become barrcd by time. Sub-rule (5) of Rule 10 of Order I Civil Procedure Code , provides that subject to the provision of Indian Limitation Act, Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. It is contended that according to the petitioner, as alleged in the plaint, cause of action arose on 26-3-83 and the suit was filed OB 6-2-1984. Rishi Kumar was added as a party on 30-11-1987. The period prescribed for fixing application under Section 20 of the Arbitration Act is three years from the date when the cause of action arose. Obviously, cause of action, according to the petitioner, arose on 26-3-1983 and Rishi Kumar was added on 30-11-1987, which is beyond the period of limitation. It is also contended that Rishi Kumar was a necessary party to these proceedings. In support of his contention, the learned counsel has relied upon the following judgments : 1979 S.C. 1682, AIR 1981 Delhi 193. AIR 1960 A.P. 98, AIR 1982 Delhi 103. AIR 1977 S.C. 282, AIR 1977 S. C. 2439, AIR 1930 Lahore 747, 1927 P.C. 252 and AIR 1967 S. C. 278.