Delhi High Court
Madho Prasad vs Ram Kishan And Ors. on 6 June, 2005
Equivalent citations: 121(2005)DLT384, 2005(82)DRJ696
Author: Mukul Mudgal
Bench: Mukul Mudgal
JUDGMENT Mukul Mudgal, J.
1. This petition under Article 227 of the Constitution of India (hereinafter referred to as the `Article 227') challenges the Order dated 4th May, 2004 passed by the Additional District Judge, Delhi(hereinafter referred to as the `ADJ') in Suit No.211/03 titled "Madho Prasad v. Ram Kishan" declining the petitioner/plaintiff's prayer under Order I Rule 10 CPC for addition and deletion of the parties.
2. The petitioner claims to be the owner of the property admeasuring 2866.06 sq. yds. forming part of Khasra No.52 situated in village Masoodabad, Najafgarh, Delhi. On 14th June, 1998, the respondents along with their associates are said to have visited the above said property with an object to encroach, trespass and take forcible possession of the same. The petitioner could only identify the respondent Nos.1,3,5 and 6 and certain other persons, namely respondents 2 and 4 who accompanied them were imp leaded as defendant Nos.2 and 4 in the suit No.211/03 filed by the petitioner. The petitioner on becoming aware of the true identity of the respondent No. 2 and 4, filed an application under Order I Rule 10 read with Section 151 CPC, on 19th March, 2004 or deletion of respondent/defendant Nos.2 and 4 from the array of the parties, as they had died even prior to the filing of the suit and for impleadment of unknown defendant Nos.2 and 4 on 14th June, 1998. It was also prayed that respondent/defendant furnish particulars of the said unknown persons. Addition to Rajinder Prakash, Govind Ram and Jai Prakash as parties was also sought by this application leading to the impugned order.
3. The Trial Court declined to interfere by its impugned order dated 4th May, 2004 inter alia on the following grounds:-
(i) that upon the death of the defendants 2 and 4 their legal heirs should have been brought on record forthwith.
(ii) that the basis of impleading Rajinder Prakash, Govind Ram and Jai Prakash as parties was the averment in the written statement.
(iii) that the basis for impleading them as parties was averred in the written statement filed by defendants 1,3 and 5 as far back as in November, 1998.
(iv) that since the application filed was for impleadment in 2004, the application is highly belated.
(v) that it was averred in the plaint that all the named defendants came to dispossess the plaintiff and that there were certain other persons who could not be identified by the plaintiff.
The ADJ has dismissed the petitioner's application to implead legal heirs of defendant No. 2 Multan Singh and defendant No. 4 Johari Mal, on the ground that the defendants 2 and 4 died prior to the filing of the suit. The death of the defendants 2 and 4 was stated in the written statement itself which was filed in 1998 and the application was filed in 2004
3. The respondent brought on record that the three parties Rajinder Prakash, Govind Ram and Jai Prakash were sought to be harrassed by making them a party as they already enjoyed an injunction in their favor in respect of the property.
4. The petitioner has himself averred in his application that the respondent 1, 3 and 5 have stated in the written statement that Rajinder Prakash allegedly purchased the property from Govind Ram and Jai Prakash. Since the plaintiff has himself stated this in his application and the application was thus based on the averments made in the written statement in 1998, the application was highly belated and no cause whatsoever was shown for the delay and it was rightly dismissed.
5. Reliance has been placed by the learned counsel for the petitioner on several judgments to contend that when the suit was brought against number of defendants, one of whom stated to be dead at the time of the same, the court should not have dismissed the case against the other defendants and struck off the suit against the former. As per his own averment that the suit has only been posted for adjuding its maintainability in respect of the rest of the defendants and the above authorities are obviously not applicable. As the suit has not yet been dismissed against the other defendants, these arguments are entirely premature and are unncessarily delaying the proceedings. The other plea advanced by the learned counsel for petitioner is that the defendants sought to have been imp leaded are necessary and proper parties for the adjudication of the suit and it has been averred by citing the following decisions that even at a later stage, the necessary party must be imp leaded.
1.AIR 1937 Patna 49
2.AIR 1976 AP 226
3.AIR 1958 AP 195
4.
5.AIR 1955 Nag 78
6.AIR 1958 Assam 56
7.
6. The above decisions deal with the existence of power of the Court to join party at any stage of proceedings but none of the decisions cited by the petitioner mandate that the parties must be joined at a later stage. In the present case the petitioner's own application stated that the relevant facts for joining the parties were stated in the written statement in 1998. No explanation is forthcoming why an action in respect of pleading in the written statement was taken only by filing the application in 2004 Accordingly no case is made out for interference.
7. In my view here is no cause for interference with the impugned order dated 4th May, 2004 which clearly shows that the ground averred for the joining of the 3 intended respondents Sh. Rajinder Prakash, Govind Ram and Jai Prakash was available to the petitioner/plaintiff in November, 1998 itself when the written statement on behalf of the defendants 1, 3 and 5 was filed. Since the petitioner's application to implead the LRs of the deceased defendants 2 and 4 was moved only in March, 2004 the Trial Court was justified in holding that the application was highly belated and therefore the trial court was justified in dismissing the application particularly when no satisfactory explanation was forthcoming. In this view of the matter, the petition deserve to be dismissed and is dismissed.