Telagareddy Yesu Rama Eswara Prasad and Another Vs Life Insurance Corporation of India and Others

@JUDGMENTTAG-ORDER

A. Gopal Reddy, J.@mdashThis revision under Article 227 of the Constitution of India is directed against the orders of the Senior Civil Judge, Kothapeta dated 05-11-2007 in allowing I.A.2009 of 2005 in O.S. No. 61 of 2003 filed under Order I Rule 10 CPC to add petitioners therein, who are sons of the 1st defendant, as defendant Nos. 3 and 4 in the suit.

2. The 1st respondent - Corporation herein instituted the above suit for recovery of the loan amount availed by the 1st defendant, in a mortgage deed by creating a mortgage, for construction of commercial shopping complex in his name. It also filed LA. stating after filing the suit they came to know about the death of the 1st defendant. The 2nd defendant, who is the husband of the 1st defendant, on receipt of summons appeared before the court through advocate and filed vakalat, therefore they served a memo on the Counsel for the 2nd defendant to inform the date of death of the deceased 1st defendant, the names and addresses of legal representatives of 1st defendant, but the 2nd defendant failed to furnish the names and correct addresses of the 1st defendant. Now with great trouble they collected the names and addresses of the legal representatives of the 1st defendant. Hence, filed the above I.A. on 12-07-2005 to implead the petitioners herein as defendants 3 and 4 in the suit.

3. On receipt of notice, the 2nd petitioner herein filed a counter, opposing the impleadment, stating that the suit was filed before the Court on 17-06-2003 and the 1st defendant died on 06-03-2003. The said fact was intimated by the 2nd defendant to the Court on 25-03-2004 and the matter was adjourned for taking steps. The plaintiff failed to take steps to bring the legal representatives of the deceased 1st defendant and the present application filed under Order I Rule 10 CPC cannot be maintainable and also denied about the 1st defendant obtaining loan from the plaintiff - Corporation, constructing the shopping complex in the plaint schedule property and their enjoying the income derived from the said shopping complex.

4. The lower court by the impugned order allowed the LA. holding that 2nd defendant who is one of the legal representatives of deceased Is'' defendant was already on record by the time the plaintiff came to know about the death of 1st defendant; since the 1st defendant died prior to the filing of the suit and the suit filed by the plaintiff against the 1st defendant is a bona fide mistake, the application under Order I Rule 10 CPC is maintainable.

5. Questioning the correctness of the same the present revision is filed.

6. Sri S. Subba Reddy, learned Counsel for the petitioners strenuously contended that since the date of mortgage deed is 18-09-1992, the 1st defendant died on 06-03-2003, the suit was filed on 17-06-2003 and memo to the said effect was filed on 25-03-2004, the application filed on 12-07-2005 is barred by limitation since 12 years period for filing mortgage suit is over by 18-09-2004. Therefore, the defendants 3 and 4 cannot be impleaded against whom the suit is time barred and the same is liable to be set aside. To buttress his submission reliance is placed on the judgment of the Supreme Court in Sreenivasan v. Peter Jebaraj 2008 (3) ALD 35 (SC).

7. On the other hand, learned Counsel for the 1st respondent-Corporation supported the order of the lower court contending that on the date of institution of suit death of defendant No. 1 is not known to the plaintiff and only on return of summons with an endorsement that addressee died, steps were taken to implead defendants 3 and 4; as one of the legal representatives of the deceased- 1st defendant is already on record, suit will not get abated. Therefore, the impugned order passed by the lower court does not warrant any interference.

8. A Division Bench of this Court in Khaja Begum Vs. Gulam Mohiuddin and Others, considered similar question where a small cause suit was filed against a dead person four days after the death and later LA. was filed to bring the legal representatives of the deceased sole defendant to the suit, which was allowed by the trial court. The lower court while holding that the original debt and part payment were true dismissed the suit on these grounds. Firstly, the suit was originally instituted against a dead person. Therefore, it was void ab initio and it could not be continued subsequendy against the legal representatives of the deceased defendant. Secondly that two more daughters and son of the deceased defendant were not impleaded as parties and, therefore, the suit was bad for non-joinder of necessary parties. Thirdly, the plaintiff was a moneylender and since she did not possess a licence, she could not file the suit. On revision being filed this court after referring the judgment of the Madras High Court in K. Ismail v. Pavu Amma AIR 1955 Mad. 644 and a judgment of this Court in C. Raju and Others Vs. Dinshaji Dadabhai Italia and Another, did not agree with the view of the lower court that the suit as instituted was ab initio void and it could not be continued against the legal representatives of the deceased defendant when admittedly they were brought on record before the period of limitation for the suit had expired. On the second question after following the judgment in Mohd. Sulaiman v. Mohd. Ismail AIR 1966 SC 729 it was held the view of the lower court that the suit is bad for the non-joinder of the parties is not correct and also ordered third question in favour of the plaintiff and accordingly set aside the judgment of the lower court and allowed the revision.

9. In Rasetty Rajyalakshmamma and Others Vs. Rajamuru Kannaiah, this Court after referring Section 21 of the Limitation Act held as under:

...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. This provision is obviously added for making Section 21 consistent with Sections 14 and 17(1)(c) which lay down that a bona fide mistake is a valid ground for extending the period of limitation in cases where the suit for application is for relief from the consequences of such bona fide mistake. The applicability of the Section is specifically excluded however to a case where the suit was properly instituted originally but became defective due to assignment or devolution of any interests during the pendency of the suit.

It was further held as under:

...that the omission to implead the legal representatives of the deceased-defendant when the suit was instituted was due to a bonafide mistake. Therefore under the proviso of the Sub-section (1) of Section 21 of the Limitation Act, the legal representatives of the deceased defendant shall be deemed to have been included as defendants on the date of the original institution of the suit i.e. 5-2-1973. The suit must therefore be held to have not abated.

Accordingly confirmed the order of the lower court allowing the application filed by the plaintiff to add the legal representatives of the deceased defendant after the period of limitation in the suit.

10. In Naranlal Jethalal Thakkar Vs. Shivprasad Achratlal Jani, the suit was originally filed seeking to recover possession of certain property as the reversioner of the previous owner. The plaintiff died on 01-02-1938. An application to bring the heirs of the plaintiff on record was made on 21-03-1938 and in answer to that application, the three sons of the plaintiff were brought on record. Besides those three sons, the plaintiff had left a widow and it is said that by reason of the Act 18 of 1937, which came into operation on 14-04-1937, widow was one of the heirs of the plaintiff jointly with the three sons, and that she ought to have been brought on the record. But before brought on record widow also died on 15-04-1938 within less than 90 days from the date of the plaintiffs death and her heirs were the three sons of the plaintiff, who were already on the record. Repelling the contention that as the three sons are not described as heirs of the plaintiff but also as heirs of their mother, the suit abated, at any rate as to the mother''s interest. The Division Bench after discussing various judgments held as follows:

...If the proper parties are not before the Court, the suit cannot proceed; but if a party is on the record, he can appear either in person or by Counsel and make any representation which seems good to him, whether in one capacity or in more than one capacity, and being on the record, it is in my opinion competent to him to put in a plaint or defence stating his attitude in the different capacities in which he is suing or being sued. On its being brought to the notice of the Court that the record does not show that he is suing or being sued in more than one capacity, it is the duty of the court to have the record amended. But an amendment of that sort can be made at any time, and I apprehend that if an application were made to strike out a pleading on the ground that the interest of the party pleading was not properly shown on the record, the Court would amend the record, and not strike out the pleading. In my opinion there is no justification for enlarging the words of Order 22 Rule 3 so as to cover a case where all that is required is formal amendment of the record, and not the addition of new parties.

Holding so dismissed the revision confirming the order of the trial court.

11. In Fakira and Another Vs. Board of Revenue for Rajasthan at Ajmer and Others, the Rajasthan High court was dealing with non-impleadment of legal representatives in the appeal pending before the Board of Revenue. On dismissal of appeal by the Board of Revenue on the ground that it had abated on the death of Aladin who was one of the co-appellants allowed the writ petition. After referring the decision of the Supreme Court in Mahabir Prasad Vs. Jage Ram and Others, which declare the law on the subject, held that one of the legal representatives of the deceased was already on the record as an appellant in the second appeal before the Board of Revenue, it was not permissible for the learned members of the Board to hold that the appeal had abated, and accordingly set aside the order of the Board and allowed the writ petition directing the Board to dispose of the appeal on merits.

12. In Karuppaswamy and Others Vs. C. Ramamurthy, the plaintiff filed a suit against a person not knowing that he had died 6 weeks prior to filing of the suit. The plaintiff became aware of the defendant''s death only from remarks on the returned summons. Immediately he filed an application under Order XXII Rule 4 CPC for impleading legal representatives of the dead defendant. The trial court allowed the application, as there is nothing to show that the plaintiff was aware of the death of the defendant. The High court also confirmed the same. On further appeal the Supreme Court after considering the various judgments of different High Courts, including the judgments of this Court in Khaja Begum v. Gulam Mohiuddin (2 supra) R. Rajyalakshmamma v. R. Kanaiah (3 supra), and the principles laid down in Munshi Ram Vs. Narsi Ram and Another, held that the appeal should be dismissed observing Division Bench of this Court in Khaja Begum''s case (2 supra) on which strong reliance was placed by the learned Counsel for the petitioners is not a case under the proviso to Sub-section (1) of Section 21 of the Act and thus requires no comment approved the ratio laid down in R. Rajyalakshmamma''s (3 supra) holding that the institution of the suit was rightly held therein to be not void ab initio.

13. The judgment on which reliance is placed by the learned Counsel for the petitioners in Sreenivasan ''s (1 supra) has no application to the facts of the present case for the reason, in the said case there was an agreement for sale between one Shahul Hameed and Arunchalam who instituted suit against Shahul Hameed for specific performance. Shahul Hameed sold the property to one Saraswathi Ammal. As she was not a party to the suit, an application was filed to implead her as defendant. Meanwhile, she sold the property to third parties under two sale deeds. On allowing the I.A. subsequent to the sale of the property, plaint was amended showing Saraswathi Ammal as defendant, in which an ex-party decree was passed. The purchaser of Saraswathi Ammal sold the property to the respondent No. 1, who in turn sold to respondent No. 2. When Execution Petition was filed for execution of the decree, the executing Court executed sale deed in favour of the plaintiff, who filed for specific performance. On such execution of the sale deed Saraswathi Ammal filed I.A. to set aside the ex-parte decree with an application to condone the delay in seeking to set aside ex-parte decree in the suit. On dismissal of I.A., as not pressed, second application was filed and the same was also dismissed on merit. Against which Saraswathi Ammal filed an appeal, which was dismissed. Against dismissal of appeal a revision Petition was filed, which was also dismissed. On dismissal of the revision a suit was filed by the respondents for declaration of tide and injunction, which was decreed and the appeal against the same was allowed which was reversed in the Second appeal by the High Court holding that Saraswathi Ammal had got absolute tide when sale to vendor of respondents 1 and 2 who in turn sold the same to plaintiffs'' and the subsequent transferees are not parties to the suit and the title vests with them and the plaintiffs also got absolute title. On the date when the ex-parte decree was passed, plaintiffs'' vendor''s vendor did not have any right to the property and the Supreme Court confirmed the same.

14. From the analysis of the judgments, referred to above, and since the principles laid down by this Court in R. Rajyahkshmamma''s case (3 supra) has been approved by the Supreme Court in Karuppaswamy''s case (6 supra), the 2nd defendant, who is the husband of 1st defendant, was already on record, the suit cannot be declared as void ab initio and on impleading the petitioners herein as defendants 3 and 4 in the suit, which relates back to filing of the suit, no infirmity is discernable in the order passed by the lower court by invoking proviso to Sub-section (1) of Section 21 of the Limitation Act, 1963 warranting interference.

15. The revision fails and it is accordingly dismissed. No costs.