Punjab-Haryana High Court
Manphool And Ors. vs Surja Ram And Ors. on 10 October, 1977
Equivalent citations: AIR 1978 PUNJAB AND HARYANA 216
ORDER
1. This is a petition by the contesting defendant challenging the correctness and validity of the order of the trial Court dated June 15, 1976, whereby two sets of applications filed by two different sets of non--contesting defendants for being transposed as plaintiffs have been allowed. I will also dispose of by this order Civil Misc. No. 1996--C--II--1977 filed by the plaintiff--respondent wherein he has prayed for his application for withdrawal of the suit submitted in the trail Court being treated as withdrawn and his being treated as withdrawn and his being permitted to prosecute the original suit in the Court below for his own benefit as well as for the benefit of the entire body of reversioners including the two sets of defendants who have been allowed to be transposed as plaintiffs.
2. In order to appreciate the submission made by the learned counsel in support of and against the revision, it is necessary to briefly survey the relevant facts of the case. One Roopa was the common ancestor of the parties. He had four sons, namely, Sadda, Raju, Dallu and Hanwanta. We are concerned in this litigation with the estate of Sadda. He left behind him his widow Devo and son Balu who was married to Mst. Hiran Balu and Hiran have left behind only one daughter, i.e., Sona defendant No. 18. The grandsons of Raju and Hanwanta are defendants to the suit. Out of the heirs of Dallu, Nathu is the plaintiff and his own grandson and other great--grandson are defendants to this suit.
3. After the death of Sadda and Balu, the latter's widow Hiran adopted Puran defendant No. 1(since deceased and now represented by the present petitioners) as son to her deceased husband by a registered adoption deed dated September 16, 1930. The adoption was questioned in a suit filed by Asa son of Raju, grandson of Roopa,. All the grandsons of Dallu, i.e., Mana's heirs were impleaded as defendants to the suit. On February 8, 1932, a compromise was effected in the suit between all the parties thereto whereby two--thirds share in the estate of Hiran went to the adopted son and one--third to Raju's son Asa. All the heirs of Mana including defendants Nos. 10, 11 and 15 to 19(or their predecessors as the case may be) agreed to the compromise decree. Hiran died on March 5, 1952. In October, 1952, mutation of two--thirds share of Hiran's estate was effected in favour of the adopted son Puran. The possession of the remaining one-third share in Hiran's estate (subject to a little diminution effected by a compromise) was obtained by Asa by filling a suit. The other part of the estate of Sadda which had till then remained in the hands of his widow Devo was gifted by her in December, 1954, to her adopted grandson Puran. In order to keep up the chronological history of facts, it may be mentioned at this stage that Puran had filed a suit in a Court at Hissar against Bajrang and others for possession of one-half share in a particular piece of land which does not form the subject--matter of the present litigation. He had based the claim on the adoption. The trial Court by its judgment dated February 29, 1960, dismissed the suit of Puran. The appeal preferred by Puran was dismissed by the judgment and decree of the Court of the Senior Subordinate Judge (with enhanced appellate posers), Hissar, dated January 23, 1961. It was in the above--mentioned circumstances that on January 23, 1973, Nathu (grandson of Mana and great--grandson of Dallu), who was a minor at that time, filed the present suit for possession of the entire estate of Sadda by questioning the mutation of October, 1952, in favour of Puran and also the gift made by Devo in his favour in December, 1954, on the ground that neither the adoption nor the alienation was binding on his reversionary interest.
4. During the pendency of the suit, Nathu plaintiff and Puran defendant arrived at an amicable settlement and filed a written compromise in the trial Court on October, 1975. On the same day Birbal (and grandson of Dallu) defendant No. 11 in the suit and Ieedan (grandson of Dallu) defendant No. 5, filed an application for being transposed as plaintiffs. On November 12, 1975, Sona, daughter of Hiran, grand-daughter of Sadda, also filed an application for being transposed as plaintiff. On January 7, 1976, Nathu, plaintiff after attaining majority filed an application for withdrawing the suit. He stated therein that he was a minor when the suit was instituted and having attained majority he had satisfied himself that he had no right under any provisions of law to be a successor of either Hiran or Devo as collaterals of nearer degrees were present at the time of their death. The ultimate prayer was for the suit being dismissed as having been withdrawn.
5. Admittedly, no order has so far been passed on the original compromise filed by the plaintiff and the real contesting defendant. The other three applications, i.e., the two applications for transposition and the plaintiff's application for withdrawal of the suit were taken up together by the trial Court and disposed of by his common order dated June 15, 1976. While allowing both the applications for transposition, the learned Subordinate Judge has held that the plaintiff's application for withdrawal of the suit has become infructuous. Though the learned Subordinate Judge has not said whether the application for withdrawal of the suit was being dismissed as infructuous or that no order was necessary to be passed on it because it had become infructuous, it is obvious from the following sentence by which he had decided the application that he has thought it to be unnecessary to pass any separate order as he has assumed that the plaintiff had walked out of the suit by not attending the Court to prosecute it:--
"Since Nathu Ram plaintiff has withdrawn himself from the suit, his application for withdrawal dated 7-1-1976 has become infructuous."
6. Whereas the heirs of Puran defendant No. 1(original contesting defendant) have questioned the order for transposition of some of the defendants as plaintiffs, an application has been filed (C. M. 1996--C--II of 1977) in this Court in the revision petition on behalf of Nathu plaintiff withdrawing the application for withdrawing the application for withdrawal of the suit and asking for being permitted to prosecute the original suit. So far as the plaintiff's application is concerned. I am unable to find any merit in it. After submitting his application for withdrawal of the suit he did not appear before the trial Court at any hearing. Whereas the learned counsel for the petitioners submits that his suit should be deemed to have been dismissed under Order 9, Rule 8 of the Code of Civil Procedure on account of his continuous non--appearance and the mandatory language of that rule, Mr. G. L. Nagpal, the learned counsel for the one set of defendant--respondents, has submitted that the trial Court should be deemed to have acted under Order 17, R. 2 of the Code and not under O. 9, R. 8. The only difference between the two rules is that whereas under O. 9, R. 8. The only difference between the two rules is that whereas under O. 9, R. 8 the court is required to dismiss the suit if the defendant appears and the plaintiff does not appear when the suit is called on for hearing, Rule 2 of O. 17 vests a discretion in the Court either to pass an order dismissing the suit under O. 9, R. 8 or to make such other order as it thinks fit if any of the parties fails to appear on any day to which the hearing of the suit has been adjourned. It is unnecessary to travel into this controversy, as it appears to me to be plain that the plaintiff having applied for the suit being dismissed as withdrawn and having thereafter consciously and deliberately failed to appear in the trial Court and prosecute the suit, he has no right to claim the withdrawal of his application for withdrawal of the suit in the proceedings pending in this Court. He is deemed to have withdrawn from the suit and that is the end of the matter so far as he is concerned. If the other defendants had not applied for transposition before the plaintiff's application there would have been nothing in the field for them to tackle and this entire litigation would have come to an end. As, however, the applications for transposition were made before the plaintiff applied for the withdrawal of the suit, those applications had to be disposed of one way or the other. It is for these reasons that I hold that there is no merit in the application of the plaintiff for leave to withdraw the application for withdrawal of the suit for leave to prosecute the suit. The plaintiff's application is, therefore, dismissed with costs.
7. Mr. Balraj Bahl, the learned counsel for the petitioners, has firstly contested on the basis of the judgment of this Court in Bhagwan Singh v. Bhagta, (1958) 60 Pun` LR 492, that the original suit filed by Nathu was itself barred by time, as admittedly he had not been born at the time of the adoption. That is not a matter on which I am called upon to pronounce in the present proceedings. In fact, Mr. Bhal concedes that the question of limitation of the suit filed by Nathu was in issue between the parties in the trial Court before the suit was withdrawn and that matter cannot be decided in the present proceedings. The learned counsel has, however, submitted on the authority of the observations of a Division Bench of this Court in Arjan Singh v. Kartar Singh, 77 Pun LR 34: (AIR 1975 Punj & Har 184), that before directing a party to be impleaded (and the same naturally applied to the question of allowing a party to be transposed as a plaintiff) the Court can insist that it should be prima facie satisfied about (i) the bona fides of the applicant, (ii) the plausibility of the applicant's claim and (iii) the genuineness of his interest in the litigation. It is from this point of view that he was canvassed that if he can show that the defendants could not have been allowed to be transposed as plaintiffs is not bona fide and the claim which they seek to press is not even plausible, the order of the trial Court has to be set aside and the applications of the defendants must be dismissed. It is in the same strain that he has referred to my judgment in Kaka Singh v. Rohi Singh, 1977 Pun LJ 320: (AIR 1978 Punj & Har 30). The learned counsel for the respondents have argued that the above--mentioned two judgments relate to cases of addition of new parties and have no application to a case like the present one where an existing party merely wishes to be transposed from the array of defendants to that of the plaintiffs. I am unable to agree with this contention. The circumstances in which a new party can be impleaded or an existing defendant can be transposed as a plaintiff are enumerated in Rule 10 of Order 1 of the Code. The power to strike out or add parties or transpose them in contained in sub--rule (2) of Rule 10 of Order 1 and I am unable to find any practical difference in the grounds on which such a prayer can be allowed.
8. Mr. Bahl has referred me to paragraph 25 of the Rattigan's Digest of Customary Law wherein it is stated that though all collateral heirs succeed together and not to the exclusion of each other but the right of collaterals to succeed is not a single individual one so as to give each collateral a right of action for the whole estate and has argued that the filing of the suit by one of the collaterals could not save limitation of the suit for the others. Once again, it is not necessary to deal with that proposition for the purpose of disposing of this revision petition. In judging the plausibility of prima facie chances of success of the defendant--respondents in the suit of their being transposed as plaintiffs, I can only take into account if their suit, even if filed on the date on which Nathu had filed the suit, would be patently barred by time. The argument of Mr. Bahl is that whereas the plaintiff sought to bring the suit within time on account of his minority, no such consideration applies to the defendant--respondents and, therefore, even if they had filed a suit in January, 1973, for questioning the adoption of September, 1930, or the gift of December, 1954, the same would have been prima facie barred by time. The only reply which Mr. Nagpal, the learned counsel for the respondents, could give to this argument is that the question of litigation can and should be decided only if and after transposition is allowed. For this proposition, he relies on the judgment of the Calcutta High Court in Moniruddin Ahmed v. Sarat Chandra Roy, ILR (1949) 1 Cal 85. It has no doubt been observed in the Division Bench judgment of the Calcutta High Court in Moniruddin Ahmed's case (supra) that the Court's power to add a party and its duty to dismiss the suit against the added party on the ground of limitation are two different questions and that the question of limitation is not to be considered at the time of adding or transposing a party, but should be decided after the parties have been added or transposed. There is no doubt that sub--section (2) of S. 21 of the Limitation Act is a mere exception to the law contained in sub--section (1) of that section. That would not, however, bring a suit by a transposed plaintiff within time on the date on which the original plaintiff instituted the suit. It appears that the observations of the Calcutta High Court are based on the peculiar facts of that case and are in any case at variance with the law laid down by the Division Bench of this Court in Arjan Singh's case (AIR 1975 Punj & Har 184)(supra). I, therefore, hold, following the Division Bench Judgment of this court, that no order of transposition as a plaintiff or addition of a new plaintiff should ordinarily be passes where it is prima facie patent that if the newly added party or the transposed plaintiff had originally filed the suit on the date when the suit in question was in fact filed, it would have been doubtlessly barred by time. On the merits of the question of limitation the only argument which Mr. Nagpal has been able to advance is based on the observations of their Lordships of the Supreme Court in Giani Ram v. Ramji Lal, AIR 1969 SC 1144, wherein it has been held that under the customary law of Punjab a declaratory decree obtained by the reversionary heirs in an action to set aside the alienation of ancestral property ensures in favour of all persons who ultimately take the estate on the death of the alienor. The argument of the learned counsel for the respondents is that a decree of the Hissar Court dismissing the suit of Puran against Bajrang and others amounts to the grant of a declaration about the adoption being a nullity which enures for the benefit of the defendant-respondents. I am unable to agree with this contention on the simple ground that no declaration has been granted by the Hissar Court at all and, therefore, the question of any declaration enuring for the benefit of one or the other of the reversioners does not arise on the facts of the instant case. There is good deal of difference between the grant of declaration on the one hand and the dismissal of a suit for possession based on an adoption on the other hand. Mr. Balraj Bahl has also laid stress on the fact that though part of the claim was dismissed, partial decree was passed by the Hissar Court in that very suit in favour of Puran based on the same adoption. Be that as it may, nothing stated in the judgment of the Supreme Court in Giani Ram's case appears to me to lead to the conclusion that, if the respondents, who are now contesting the petition, had filed a suit in January, 1973, for the relief which was claimed by Nathu, the same would have been within time. On that ground alone, I hold that the defendant--applicants have no prima facie case entitling them to be transposed as plaintiffs. Even otherwise their applications for transposition do not appear to me to be bona fide. They had kept quiet from January, 1975 to October, 1975. It was only after the plaintiff and the contesting defendant to the suit had come to an amicable settlement and had filed a compromise in Court that the applications for transposition were made. It appears that a see-saw battle had been going on between the plaintiff and the non-contesting defendants to the suit inter se in which the poor contesting defendants were the victims.
9. In fairness to the counsel for the parties, I may also notice an additional argument which has been advanced by Mr. Bahl. He has argued that after the repeal of S. 6 and amendment of S. 7 of the Punjab Customs (Power to Contest) Act, 1920 by the Punjab Customs (Power to Contest) Amendment Act 1973, no such application as the present one is maintainable. Mr. G. L. Nagpal, the learned counsel for the respondents has, however, submitted not without justification that the bar of S. 7 cannot apply to any challenge to an alienation or appointment of an heir made by a female because of the exception contained in S. 5 of the principal Act which says that nothing in that Act applies to any alienation or appointment of an heir made by a female. Prima facie Mr. Nagpal appears to be correct in this behalf. It is, however, not necessary to pronounce on this point finally for the purpose of deciding this revision petition.
10. Nor is it necessary to deal at any length with the submissions of Mr. Bahl based on the judgment of the Allahabad High Court in Raisa Sultana Begum v. Abdul Qadir, AIR 1966 All 318, and of this Court in Bahadur Chand v. Ashok Sharma, AIR 1974 Punj & Har 52, that the mere submission of the application for withdrawal of the suit is deemed to end the plaintiff's suit and nothing survives thereafter. As already stated, the law laid down by the Allahabad High Court and the Punjab High Court in the above-mentioned cases and as also by their Lordships of the Supreme Court in M/s. Hulas Rai Baij Nath v. Firm K. B. Dass and Co., AIR 1968 SC 111, relates to situations where no application for transposition of any party is pending on the date on which the application for withdrawal of the suit is made. A feeble attempt was made by Mr. Gopi Chand Code introduced by the amendment made in the Code in 1976. BY operation of clause (s) of sub--section (2) of S. 97 of the amendment Act the said provision cannot be relied upon in a suit which was instituted before the amendment of the Code.
11. Mr. Y. R. Sachdeva, the learned counsel for defendants Nos. 11 and 15, submitted in addition that when an application for transposition is pending the suit cannot be withdrawn till the application is disposed of. For this proposition, he has relied on the judgment of the Madras High Court in Kunju Kombi Achan v. Ammu, AIR 1932 Mad 31. That proposition is again academic on the facts and circumstances of the case. The trial Court has not dismissed the suit and, therefore, the question of the stage at which the application for withdrawal of the suit can be disposed of is merely academic on the facts of this case.
12. For the foregoing reasons, I allow this petition, set aside and reverse the order of the trail Court on the two applications for transposition and dismiss both those applications. The passing of this order leaves in the field two applications, namely one made by the original plaintiff in January, 1976, for withdrawal of the suit and the other for effecting a compromise submitted in October, 1975. Since nothing survives for compromise on the withdrawal of the suit, the earlier application has become infructuous and it is not necessary to pass any order on the same. The applications for transposition having been dismissed, there is no impediment in the way of the suit being dismissed as withdrawn. I, therefore, allow the plaintiff's application for withdrawal of the suit and dismiss the original suit as withdrawn. The costs of the revision petition will have to be borne by the parties as incurred by them.
13. Petition allowed.