Patna High Court
Chunchun Chaudhary vs State Of Bihar And Ors. on 19 May, 1988
Equivalent citations: AIR1989PAT34, AIR 1989 PATNA 34, 1988 BBCJ 701 (1989) BLJ 41, (1989) BLJ 41
Author: Satya Brata Sinha
Bench: Satya Brata Sinha
ORDER Satya Brata Sinha, J.
1. These two writ applications, involving common questions of law and fact, were heard together and are being disposed of by this common judgment. In these writ applications the petitioner has prayed for issuarnce of a writ of certiorari for quashing of an order D/- 30-12-81 passed by Assistant Settlement Officer, Bhagalpur (respondent 2), as contained in Armexure '1' to these writ applications.
2. The facts of the case lie in a very narrow compass.
3. The petitioner claims himself to be entitled to the land in question by reason of two sale deeds dt. 3-2-73 allegedly executed by the predecessor in interest of the respondent No. 6 in C.W.J.C. No. 3918 of 1982 and respondent 3 in C.W.J.C. No. 3920 of 1982. According to the petitioner he had come in peaceful cultivating possession of the aforesaid purchased land The petitioner has asserted that after final publication of the record of rights, he came to learn that the land in question was recorded in the names of respondents 3 to 20 in each case as raiyat as also in the names of respondents 21 to 24 as under raiyats in C.W.J.C. No. 3920 of 1982. According to the petitioner he was not aware of the survey proceedingas he purchased the said land at the initial stage of the survey operation and, as such, could not file any objection as he was not made a party in the pbjection petition. The petitioner, having come to learn of the final publication of the Khatian, filed an application before the Assistant Settlement Officer at Revenue Court, Bhagalpur (respondent 2), purported to be under Section 106 of the Bihar Tenancy Act. In the said proceedings which was initiated on the said objection petition filed by the petitioner, the respondents 3 to 7 appeared and filed their respective written statements, inter alia, contending therein that some of the respondents had already died before institution of the said suit. The petitioner having come to learn of the said fact filed an application for substitution of heirs and legal representatives in place of the deceased respondents 8 to 20. The contesting respondents filed rejoinder to the said application for amendment wherein they prayed for dismissal of the said suit on the ground that the said purported substitution petition was filed at a belated stage. By the impugned order, as contained in Annexure '1' to these writ applications, the respondent 2 has rejected the said application filed on behalf of, the petitioner and dismissed the said suit.
4. In these cases, counter-affidavits have been filed on behalf of the contesting respondents as also on behalf of the respondent 2. In the said counter-affidavits the respondents contended that the impugned order having been passed by the Assistant Settlement Officer in exercise of his power conferred upon him under Section 106 of the Bihir Tenancy Act, a revision petition was maintainable as against the said order under Section 108 thereof as also appeals could have been filed against the said order in terms of Section 109 A thereof. The contesting respondents have further asserted that the vendors of the petitioner had no right to sell the interest of his co-sharers and on that ground the said purported deeds of sale were void ab initio. It was further pointed out that the petitioner filed the said application for amendment of plaint after six years of the filing of the suit and in view of the fact that a suit of the nature filed by the plaintiff is maintainable only against the entire body of the landlords and as such in absence of all the co-sharers, the same was not maintainable. The said respondents further pointed out that in view of the admitted position that at the time of the filing of the said suit the original respondents 8 to 20 were dead, the said suit could not have proceeded in accordance with law.
5. The learned counsel appearing on behalf of the petitioner has raised a very short question. The learned counsel submitted that in terms of Order 1, Rule 10 of the Civil P.C., such an application was maintainable. In this connection learned counsel has referred the case of Rasetty Rajyalakshmamma v. Rajamuru Kannaiah reported in AIR 1978 Andh Pra279, Ashok Kumar v. Kanhaiya Lal reported in AIR 1974 All 417 and Smt. Satyabhama Jalan v. Murli Manohar Jalan reported in AIR 1977 Pat 243.
6. Learned counsel appearing on behalf of the respondents, on the other hand, has submitted that these writ applications are not maintainable in view of the fact that the petitioner had alternative remedies by way of an appeal or a revision application As contemplated under Sections 109A and 108 of the Bihar Tenancy Act respectively. The learned counsel for the respondents submitted that even assuming that an application under Order 1, Rule 10(2) of the Civil P.C. is maintainable by bringing the heirs and legal representatives of the deceased respondents 8 to 20 on record, the same would obviously be barred by limitation. The learned counsel has placed strong reliance upon Harendra Nath Choudhury v. Dwijendra Nath Banerji reported in AIR 1933 Cal 787.
7. Section 106 of the Bihar Tenancy Act provides that a suit may be instituted before a Revenue Officer at any time within three months from the date of the certificate of the final publication of the record-of-rights under Sub-section (2) of Section 103A of the Bihar Tenancy Act, by presenting a plaint on stamped paper, for the decision of any dispute regarding any entry which a Revenue Officer has made in, or any omission which the said officer has made from the record.
8. Section 107 of the Bihar Tenancy Act provides that in all such proceedings, the Revenue Officer shall, subject to rules made by the State Government under this Act, adopt this procedure laid down in the Civil P.C. for the trial of suits; and his decision in every such proceeding shall have the force and effect of a decree of a Civil Court in a suit between the parties, and, subject to the provisions of Sections 108 and 109 A, shall be final. In view of the provisions of Section 107 of the said Act there cannot be any doubt that the provisions of Order 1, Rule 10 of the Civil P.C. shall have application in relation to a suit instituted under Section 106 of the Bihar Tenancy Act. However, as noticed hereinbefore Section 106 of the Act provides for a period of limitation. The period of limitation fixed under the Bihar Tenancy Act shall prevail for the period of limitation prescribed under Limitation Act, 1963, and, assuch, asuitcontemplatedunder Section 106 thereof must be instituted within a period of three months from the date of certificate of final publication of record of rjghts.
9. Order 1, Rule 10 of the CivilP.C. reads as follows :
"10. Suit in name of wrong plaintiff.-
(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may, at any stage of the suit, if satisfied that the suit has been instituted through, a bona fide mistake, and that it is necessary for the determination of the real matter in disputeso to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and 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 effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended. -- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served oh the new defendnat and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877) Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."
10. The object of Order 1, Rule 10(2) is to bring about before the Court at the same time all the persons who are parties to dispute relating to the subject matter so that the dispute may be determined at the same time without any delay or inconvenience and expenses of separate actions and trials. By reason of such a power the Court places itself in a position of being able to effectually and completely adjudicate upon and settle all the questions involved in the suit. However, the said provision is subject to the other provisions contained therein as also Section 22 of the Limitation Act, 1908, which is now Section 21 of Limitation Act, 1963.
11. There is no doubt that if the suit has been instituted against several defendants and only one br some of them is/are dead the suit cannot be said to be void ab initio and in such case it may be open, to strike out the name of the deceased and proceed with the suit, in case the deceased was not a necessary party but in case he/they was/were his/their heirs and/or legal representatives can be impleaded by amending the plaint but such a power has to be exercised subject to law of limitation. Earlier, in view of provisions of Section 22 of the Limitation Act (1908) as it then stood a party could not have been impleaded by way of amendment in terms of Order 1, Rule 10(2) of the Civil P.C.; in case a period of limitation for filing a fresh suit as against such person had come to an end. Reference in this connection may be made C. Raju v. Dinshaji Dadabhai Italia reported in AIR 1961 Andh Pra 239 and Bibi Asma Shah v. Suresh Prasad reported in 1978 BLJR 552.
12. In terms of Order 1, Rule 10(2) a new plaintiff or a defendant can be added or substituted but the suit shall, as regards him, be deemed to have been instituted when he was so made a party subject to the provisions contained in Section 22 of the old Limitation Act.
Reference in this connection may be made Amin Lal v. Hunna Mal reported in AIR 1965 SC 1243 and Krishna Reddi v. Gandavaram Raghava Reddi reported in AIR 1927 PC 257.
13. But the position changed after the coming into force of the new Limitation Act. There is no doubt that by reason of Section 21 of the Limitation Act (1963) in a given case the Court has been empowered to direct that a party would be deemed to have been impleaded from an earlier date provided the mistake in not impleading him can be said to have been made in good faith. Reference in this connection may be made Munshi Ram v. Narsi Ram reported in AIR 1983 SC 271. In this view of the matter it has to be held that the Court has a discretion in terms of proviso under Section 21 of the Limitation Act to condone the delay in filing the application for addition of parties after the period of limitation provided the same is made bona fide and a good cause is shown therefor. Reference in this connection may also be made to Rasetty Rajyalakshmamma v. Rajamuru Kannaiah reported in AIR 1978 Andh Pra 279, wherein a Division Bench of Andhra Pradesh High Court has stated as follows :--
"The object of the section is primarily to protect the right a party may have, but action was not originally constituted properly but was defective. In case of such defective action at the commencement itself, a new plaintiff or defendant can be substituted or added under this section and the suit as against such substituted or added party shall be deemed to have been instituted when he was so made a party. A proviso, however, has been added to Sub-section (1) so that any omission to include a person due to a mistake made in good faith does not deprive a party of his rights against that person if the court is satisfied in that behalf. By the proviso, power is conferred on the court in such circumstances to direct that the suit as regards to the plaintiff or defendant shall be deemed to have been instituted at any earlier date."
In Khalil Ahmad v. The Additional District Judge (supra) it has been held that under Order 1, Rule 10(2) the Court has power to implead a necessary party in order to enable the Court to adjudicate effectually and completely all the questions involved in the suit. In Smt. Satyabhama Jalan v. Murli Manohar Jalan reported in AIR 1977 Pat 243, a learned single Judge of this Court has held in the case where parties are required to be added, necessarily the Court has power to implead him if the conditions precedent therefor are satisfied :
14. The learned counsel for the petitioner has also placed strong reliance upon a decision of this Court in Gourishankar Ganeriwala v. State of Bihar reported in 1970 Pat LJR 531. In the said decision in a suit for declaration as against the State of Bihar that, or adding of intervenors as parties on the ground that they are in actual physical possession of land in question was held tobe bad in law, as thereby, the nature of the plaintiffs' suit would wholly change. This decision, in my opinion, is not applicable to the facts of the present case. Learned counsel for the petitioner further relied upon a Full Bench decision of this Court in Nand Kumar Rai v. State of Bihar reported in 1974 Pat LJR 27 : (AIR 1974 Pat , 164), wherein it was held that the scope of a suit or a proceeding under Section 106 of the Bihar Tenancy Act for the purpose of altering an entry made in the record of rights must primarily be limited to the question of possession and not to the question of title. There is absolutely no doubt or dispute about this proposition but that does not, in my opinion, help the petitioner in this .case inasmuch as it is an admitted that various, persons whose names entered into records of rights much prior to the filing of the suit, (sic) From the aforementioned decisions, it is evident, that in a given case, the Court has power to implead the heirs of a party, who died prior to the institution of the suit.
15. In Harendra Nath Chaudhury's case reported in AIR 1933 Cal 787, a Division Bench of the Calcutta High Court has held that in a case under Section 106, Ben. Ten. Act, the entire body of co-sharers is a necessary party. For the purpose of disposal of this application the aforementioned point is not very relevant.
16. Learned counsel for the respondents further relied upon a decision of the Supreme Court in Ramprasad Dagaduram v. Vijaykumar Motilal Hirakhanwala and others reported in AIR 1967 SC 278, wherein the Supreme Court held that under Order 1,R. 10(1) of the Code of Civil Procedure read with Section 22 of the Limitation Act a suit must be deemed to have been filed on the date when the new parties are added. This decision, in my opinion, is not applicable to the facts and circumstances of the present case. In as much as therein the provisions of Section 22 of the Limitation Act 1908, was taken into consideration which now admittedly has undergone a change by insertion of proviso (2) Section 21 of the Limitation Act, 1963. The learned counsel further strongly relied upon a decision of Punjab and Haryana High Court reported in AIR 1977 Punj and Har 180, wherein the said High Court held that the question of substituting the legal representatives in terms of Order 22, Rule 4 of the Civil P. C. arises who was alive at the time when the suit was instituted. This decision, in my opinion, is not applicable to the facts and circumstances of the present case in view of Section 21 of the Limitation Act, 1963, In this decision it was held as follows :--
"After taking into consideration all these matters I am of the view that in a case of this type the trial Court must decide the question of limitation before or at the time of directing the impleading of the legal representatives of the persons who were dead before the institution of the suit, and also decide the question arising under the proviso if the same is invoked by any party before actually impleading any such legal representative. Inasmuch as the Court below has not done so, that part of the order of the trial Court which is contrary to the law laid down by me above has to be set aside."
This decision clearly supports the contention raised by the learned counsel appearing on behalf of the petitioners. Learned counsel for the respondents further have relied upon in Surendra Nath Sarkar v. Manatab Monian reported in AIR 1978 Cal 344, wherein the said Court held that once the application for substitution after setting aside abatement caused by the death of some parties in a suit is rejected on merits, the plaintiff will not be permitted to circumvent the position caused by operation of law to add them as parties by invoking the aid of Order 1, Rule 10(2) or of Section 151 of the Civil P.C. This decision is not applicable to the facts and circumstances of the present case, as evidently the petitioner had not earlier prayed for substitution the heirs of the deceased respondents. Learned counsel for the respondents further has referred to Rule 814 of the Technical and Survey Rules, 1959 Vol. II, page 119 for showing that the suit under Section 106 of the Bihar Tenancy Act would not be entertained after the expiry of the period of limitation. However, the Technical Rules cannot override the provisions of the Act. In that view of the matter, in my opinion, the same cannot take place on a statute.
17. From a perusal of the impugned order it appears that the respondent 2 did not address himself to the question as to whether in the facts and circumstances of the case the application for amendment in the plaint, as prayed for by the petitioner, should be allowed. Taking into consideration the facts and circumstances of the case the respondent 2 in the impugned order mainly proceeded on the basis that various difficulties would arise if the said application for amendment is allowed. The respondent 2, however, misdirected himself in passing the impugned order, in so far as it failed to take into consideration that he at that stage itself could determine the questions as to whether the plaintiff-petitioner had sufficient cause for not impleading the heirs and legal representatives of respondents 8 to 20 as parties to the suit. He further failed to apply his mind with regard to the question that whether the mistake on the part of the petitioner for not impleading the heirs and legal representatives of the said respondents as parties was owing to a bona fide mistake or not Had the respondent 2 addressed himself to these questions in such case it would have been possible for hmi to pass an order as to whether keeping in view of the intent and object of the provision of Order 1, Rule 10(2) of the Civil P.C. read with Section 21 of the Limitation Act the application for amendment should be allowed or not.
18. Taking into consideration all the facts and circumstances of the case, I am of the view that in the interest of justice the matter should be considered afresh by the respondent 2, keeping in view the observations mentioned hereinbefore as also the provisions contained in Order 1, Rule 10(2) of the Civil P.C. as also the provisions of Section 21 of the Limitation Act, 1963.
19. So far as the objection raised by the learned counsel for the respondents relating to availability of the alternative remedy is concerned, in my opinion, this petition cannot be thrown out on that ground as the writ petition has already been admitted. The same, If done, at this stage shall prejudice the petitioner immensely. Reference in this connection may be made to Gobind Saran v. State reported in 1983 Pat LJR 26 : (AIR 1983 Pat 96).
20. In the result, the writ applications are allowed and the order dt. 30-12-81, as contained in Annexure '1' to both the writ applications, are hereby quashed and the respondent 2 is hereby directed to consider the application for amendment of the petition filed on behalf of the petitioner afresh and pass orders thereon in accordance with law. However, in the facts and circumstances of the case, there will b.e no order as to costs.