ORAL JUDGMENT
1. In present petition, the petitioner has prayed, inter alia, that:-
“10(A) to allow this petition with costs;
(B) to quash and set aside the order dated 3.9.2011 passed on application Ex.31 in Civil Suit No. 320/2008 of the learned 7th Additional Senior Civil Judge, Rajkot;
(C) to allow the application Ex.31 made in Regular Civil Suit No. 320/2008 by permitting to implead the respondents No. 7 and 8 as party defendants No. 7 and 8 in the said suit;”
2. So far as the relevant facts are concerned, it has emerged from the record and submissions by learned advocates for the petitioner and the respondent No. 7 that the defendant No. 7 in Regular Civil Suit No. 320 of 2008 purchased certain properties in March-1995.
2.1 The said defendant No. 7 of the suit died in May-1998. Despite such fact, the said purchaser of the property in March, 1995 (who died in May 1998) was impleaded as defendant No. 7 in the said Suit No. 320 of 2008.
2.2 The said suit being RCS No. 320/2008 came to be filed on or around 24.6.2008, i.e almost 13 years after the sale was executed and about ten years after the said purchaser of the property died in May, 1998, impleading the said purchaser of property as defendant No. 7 in the suit.
2.3 From the record, it has also emerged that the said suit being RCS No. 320/2008 is filed by the petitioner seeking cancellation of a sale deed whereby certain property came to be sold to the original defendant No. 7 in the suit.
2.4 The above-mentioned details, give out that at the time when the suit was filed, it was filed against a dead person so far as the defendant No. 7 of the suit is concerned.
2.5 In that view of the matter, the suit was treated as abated qua defendant No. 7 vide order dated 31.3.2009
2.6 Having regard to the said fact, the plaintiff moved an application dated 20.5.2009 requesting the learned trial Court to set aside the abatement qua the defendant No. 7 and to join the heirs of deceased defendant No. 7.
2.7 The said application came to be registered as application Exh.14
The learned trial Court has summarized the subject and scope of the said application Exh.14 in the order in following terms:-
“…. According to plaintiff, the defendant No. 7 expired on 31-01-2009 as per the endorsement of bailiff on summons. According to plaintiff, the suit against defendant No. 7 is abated and therefore, the plaintiff has filed present application to set aside the abatement and to join the heirs of deceased defendant No. 7 as parties.”
2.8 The learned trial Court, after considering the facts and circumstances of the case, rejected the said application Exh.14 vide order dated 9.9.2009
2.9 It is pertinent that the plaintiffs did not challenge the said order dated 9.9.2009
2.10 Sometime after the said application Exh.14 was rejected, the plaintiffs filed another application dated 15.11.2010 i.e after delay of about 14 months after the order dated 9.9.2009 and almost 2 years and 5 months after the suit was filed.
By the said application dated 15.11.2010, the plaintiffs requested the learned trial Court to implead two persons named in the application as party defendant in the suit claiming that the said two persons are the heirs of the original defendant No. 7 (the person qua whom the suit is treated as abated).
The said application came to be registered as application Exh.31
2.11 The two persons whose names were mentioned in the application Exh.31 (who are impleaded as respondent Nos. 7 and 8 in present petition) are the same persons (i.e heirs of said/original defendant No. 7) whose names were mentioned in/for whose impleadment previous application Exh.14 was earlier moved by the plaintiffs (which came to be dismissed vide order dated 9.9.2009) filed reply/objection against the application Exh.31
2.12 After considering the application and the reply/objections by the proposed defendants, i.e present respondent Nos. 7 and 8, the learned trial Court rejected the said application Exh.31 vide order dated 3.9.2011
The petitioner is aggrieved by the said order hence, present petition.
3. Learned advocate for the petitioner submitted that, initially the application (i.e Exh.14) which was filed in May-2009 was filed for impleading two persons in the suit as heirs of the said deceased defendant No. 7. However, the second application which came to be filed by the plaintiff (i.e Exh.31) is filed under Order-1 Rule-10 on the ground that the proposed defendants, i.e the said two persons, are necessary and proper party for adjudicating the suit. According to the learned advocate for the petitioner, the learned trial Court has committed error in rejecting the said application without appreciating the difference between the two applications (i.e Exh.14 and Exh.31). The learned advocate for the petitioner submitted that the said application is not filed under Order-22 Rule-3, but it is an application under Order-1 Rule-10. Learned advocate for the petitioner also contended that the learned trial Court has committed error in applying principle of res-judicata to the second application (Exh.31) on the ground that the earlier application (Exh.14) is decided and therefore, the second application (Exh.31) is not maintainable.
4. The petition and the said submissions by the learned advocate for the petitioner are opposed by learned advocate for the respondent No. 7, who submitted that in the application Exh.14, the petitioner - plaintiff mentioned names of two persons and requested that the said two persons may be impleaded as defendants in the suit proceedings on the ground that they are heirs of the original defendant No. 7 qua whom the suit is treated as abated. Learned advocate for the respondent submitted that the decision of treating the suit as abated qua defendant No. 7 has attained finality, inasmuch as in the application Exh.14, was rejected by the learned trial Court vide order dated 9.9.2009 and the said order has not been challenged by the petitioner - plaintiff in appeal or by way of writ petition or in any manner whatsoever and the said order has attained finality. The learned advocate for the respondent also submitted that the applications have been moved with malafide intention.
The learned advocate for the respondent would contend that when the suit qua the original defendant No. 7 stands abated and the said decision is accepted even by the petitioner - plaintiff and has attained finality, the question of impleading his heirs in the suit proceedings do not arise. Learned advocate for the respondent therefore, relied upon the order dated 9.9.2009 passed below Exh.14
5. I have heard learned counsel for the petitioner and the respondent No. 7 and considered the submissions made by learned counsel for the petitioner and the respondent No. 7 and I have also examined the material on record.
5.1 Before proceeding further, it is relevant to mention that the second person, i.e one of the two proposed defendants in the suit namely Mr. Jivabhai Panchabhai Bharvad died on 7.2.2012
Thus, the request to implead the said person as one of the defendants in the suit would otherwise also not survive now and the said application is now, even otherwise, rendered infructuous in respect of one of the persons mentioned in application.
5.2 At the outset, it would be appropriate to take into account the observations by the learned trial Court in the order dated 9.9.2009, which read thus:-
“6. According to the ratio laid down in the above said cases, O.22 R.4 of C.P.C will apply only when the party dies during the pendency of the proceeding. Further held that a suit against dead person is admittedly a nullity and therefore, O. XXII, R.4 can not be invoked. Further held that the provisions of O. XXII R.4 of C.P.C and O.I R.10 of C.P.C are different and independent. Therefore, according to heirs of deceased defendant, the heirs can not be joined as party because the suit is filed against dead person.
7. Now in this case, the endorsement for the bailiff for the death of defendant No. 7 made on 31-01-2009 and the present application is filed on 20-05-2009. The application is filed for setting aside abatement and to join the heirs in this suit. Moreover, there is no case if the plaintiff that he has no knowledge about the death of defendant No. 7 or he has made inquiry. Therefore, as per the judgment produced by the defendant, the suit against dead person is nullity. Moreover, the plaintiff has not mentioned the provision under which he has filed the present application. Moreover, the plaintiff has remedy against the heirs therefore, no injustice will cause to him. Moreover, there are other defendants on record.
8. Under these circumstances, the application can not be allowed. Hence, I pass the following order in the interest of justice.
ORDER
1. The application is not allowed.
2. No order as to cost.”
5.3 At this stage, it is relevant to take into account some relevant dates. It is pertinent that in respect of the sale deed executed in March, 1995, the petitioner - plaintiff filed the suit in 2008, i.e after about 13 years after the sale deed was executed and in June, 2008 (i.e after 13 years) they prayed for cancellation of sale deed executed in March 1995. Moreover, the suit came to be filed in June, 2008 by the plaintiffs one month after the purchaser died in May, 2008. Thus, the suit came to be filed against a dead person (being one of the defendants).
Furthermore, even after the Court declared, vide order dated 31.3.2009 that the suit stands abated qua defendant No. 7, the plaintiff did not take any action whatsoever for almost 2 months.
The application Exh.14 seeking to join heirs of the defendant No. 7 (the purchaser) as party defendant to the suit was moved in May, 2009 (i.e on 20.5.2009) almost two months after the Court passed the order dated 31.3.2009
The said application Exh.14 was rejected by the Court vide order dated 9.9.2009
Then after further delay of almost 14 months, the subject application being Exh. No. 31 came to be filed on 15.11.2010
The aforesaid chronology and the details of delay at various stages are relevant and need to keep in focus.
5.4 Before proceeding further, it is also relevant to note that in the said application (Exh.14), the plaintiff - petitioner had mentioned names of two persons describing them as the heirs of original defendant No. 7 and had requested the learned trial Court to implead the said two persons as party defendants in the suit on the ground that they are heirs of the original defendant No. 7.
Since a copy of the application Exh.14 is not placed on record, the Court asked the learned advocate for the petitioner to place on record a copy of said application (Exh.14).
In response, the learned advocate placed on record copy of the application (Exh.14).
On comparison of the said two applications Exh.14 and Exh.31, it has come out that the real and actual purpose and, more important, real and actual effect of the relief prayed for in the said two applications are similar inasmuch as in effect and in substance the petitioner ultimately and some how wants to rope-in and join/implead the said two persons as defendants in the suit and the only ground on which such request is repeatedly made is that the said two persons are heirs of deceased defendant No. 7 and the petitioner - plaintiff seeks similar relief by way of two different applications and therefore, the request made by the applicant is not justified.
This is the aspect which comes out from the observations and conclusion recorded by the learned trial Court in paragraph 4 and 5 of the order dated 3.9.2011 below application Exh.31
6. There is no dispute about the fact that the date on which the suit being RCS No. 320/2008 came to be filed, the original defendant No. 7 in the suit was not alive.
There is also no dispute about the fact that the said defendant No. 7 died on 19.5.1998, whereas the suit for cancellation of sale deed (executed in March, 1995) came to be filed after about 13 years on 24.6.2008, thus, the suit stood abated qua defendant No. 7 who was not alive on the date on which it was filed.
6.1 It is also not in dispute that for long time after having filed the suit, the plaintiff did not take any action for making the request to set aside the abatement.
It was only in May-2009 that the plaintiff moved the application Exh.14 dated 13.5.2009 and prayed that the abatement may be set aside and the two persons whose names were mentioned in the application may be impleaded as party defendants in the suit on the ground that they are heirs of the said original defendant No. 7.
The learned trial Court rejected the said application vide below mentioned observations:-
“1. Heard learned advocates for the parties. Read the application and objections at Ex.19
2. According to the plaintiff, he has filed present suit against the defendants for the cancellation of the sale deed and to obtain share in the suit premises. According to the plaintiff, the defendant No. 7 expired on 31-01-2009 as per the endorsement of bailiff on summons. According to plaintiff, the suit against defendant No. 7 is abated and therefore, the plaintiff has filed present application to set aside the abatement and to join the heirs of deceased defendant No. 7 as parties.
3. The heirs of deceased defendant No. 7 have filed objections at Ex.19 contending that the suit is not maintainable against the dead person. According to him, the order passed for the abatement is legal one. The heirs of deceased defendant No. 7 has denied the facts of the plaintiff's application and requested to dismiss the application.
4. In this suit, the summons of the defendant No. 7 returned with the endorsement on 31-01-2009 of the bailiff that defendant No. 7 expired. According to plaintiff, the suit against dead defendant No. 7 is abated and it is required to be set aside.
6. According to the ratio laid down in the above said cases, O.22 R.4 of C.P.C will apply only when the party dies during the pendency of the proceeding. Further held that a suit against dead person is admittedly a nullity and therefore, O. XXII, R.4 can not be invoked. Further held that the provisions of O. XXII R.4 of C.P.C and O.I R.10 of C.P.C are different and independent. Therefore, according to heirs of deceased defendant, the heirs can not be joined as party because the suit is filed against dead person.
7. Now in this case, the endorsement for the bailiff for the death of defendant No. 7 made on 31-01-2009 and the present application is filed on 20-05-2009. The application is filed for setting aside abatement and to join the heirs in this suit. Moreover, there is no case if the plaintiff that he has no knowledge about the death of defendant No. 7 or he has made inquiry. Therefore, as per the judgment produced by the defendant, the suit against dead person is nullity. Moreover, the plaintiff has not mentioned the provision under which he has filed the present application. Moreover, the plaintiff has remedy against the heirs therefore, no injustice will cause to him. Moreover, there are other defendants on record.”
6.2 It is also not in dispute that the petitioner - plaintiff did not challenge the said order before any Court and the said order has attained finality.
6.3 It is also not in dispute that about one year thereafter, the petitioner - plaintiff moved another application dated 15.11.2010, which came to be registered as application Exh.31
It is also not in dispute that in the said application also, the petitioner - plaintiff mentioned names of the very same two persons whose names were mentioned in the application Exh.14
It is also not in dispute that this time, i.e in the second application Exh.31, the petitioner - plaintiff made slight change in the application Exh.31 and claimed that the said persons may be impleaded as defendants in the suit on the ground that the said two persons are necessary party for deciding the suit.
6.4 In this context, what becomes relevant is the reason and justification on which the petitioner claimed that the said two persons are necessary party for deciding the suit.
The only ground on which the petitioner - plaintiff claimed that the said persons are necessary party for deciding the suit is that the said two persons are heirs of the deceased defendant No. 7. The same reason was cited in support of/for making the application Ex.14 and the said earlier application was preferred solely and precisely on the same ground.
Except the said status of the said two persons, any other reason is not urged or shown and it is also not claimed and/or demonstrated as to how the said two persons have any interest in or connection with the dispute involved in the subject suit, in any other capacity and/or how are the said two persons necessary party and how do they have any interest in this dispute. Any details on this count are not mentioned in the application and any ground - except that they are heirs of the said defendant No. 7 - is not made out.
It is also relevant to note that out of the said two persons one person whom the petitioner wants to implead as defendant in the suit has died.
Besides this, as mentioned earlier, for the surviving heir of the original defendant No. 7 (i.e the persons whom the petitioner wants to be impleaded as party defendant in the suit) the plaintiff had made attempt to rope him in the suit as defendant on the ground that he is heir of the original defendant No. 7 and when the said attempt failed, the petitioner - plaintiff preferred another application seeking impleadment of the very same person, however, on the ground that the said person is necessary party to the suit proceeding.
In response to the query as to how the petitioner - plaintiff claims that the said persons are necessary party, then the only reply given by the learned advocate for the petitioner is that the said persons are the heirs of the original defendant No. 7.
6.5 Before proceeding further, it is also relevant and interesting to note that though in the suit the petitioner - plaintiff has impleaded other six persons as defendants, however, when the relief prayed for in the suit is examined, it emerges that in the suit, the plaintiff has prayed for substantial relief only against the original defendant No. 7, i.e a person who had expired on the date of the suit.
In this context, learned advocate for the petitioner - plaintiff would contend that in the suit, the plaintiff has also prayed for partition of the suit property. However, it cannot be overlooked that the suit property in respect of which the partition is prayed for is the same property, which came to be purchased by the original defendant No. 7 qua whom the suit already stands abated and the order on that count has attained finality.
6.6 The request made by the plaintiff - petitioner vide subsequent application Exh.31 dated 15.11.2010 is required to be considered in light of above mentioned facts.
When the above mentioned aspects are kept in focus and in that light the application Exh.31 is examined, then, it emerges that the application Exh.31 is nothing but an ingenious way employed by the petitioner - plaintiff to bring in picture the heirs of the original defendant No. 7 against whom the suit stands abated and thereby to revive the claim against the property which the plaintiff sold and said original defendant No. 7 purchased in March-1995 and thereby to circumvent the obstacle of limitation in the event suit were to be filed afresh and/or against other persons including the said two persons.
At this stage, it is necessary to recall that the sale deed which the plaintiff wants cancelled was executed in favour of said defendant No. 7 in March, 1995 and the plaintiff filed the suit (for cancellation of the sale deed) almost 13 years after the sale deed was executed and almost 1 month after the purchaser (i.e the defendant No. 7) died.
From the facts and circumstances of the case and also from the material on record, it has emerged that when one application (i.e the application Exh. No. 14) failed, another application for similar purpose and for same persons by only changing the mode of the request came to be preferred and the learned trial Court recognized the attempt of the petitioner - plaintiff and passed the impugned order. The learned trial Court has not committed any error in rejecting the said application.
6.7 When the object of the plaintiff for impleading the said two persons in the suit proceedings, viz. to bring the heirs on record is the same, then merely because the plaintiff changed the provision under which the application is purportedly made would not help the plaintiff to run away from the fact that the defendant No. 7 died even before the suit was filed and the suit against said defendant stands abated and that the suit was filed after the said defendant No. 7 died and the plaintiff also cannot escape from the fact that the said two persons are sought to be impleaded because they are heirs of the original defendant No. 7 and that is the only reason and ground on which the plaintiff claims that they are necessary party and wants to implead them as defendants in the suit. There is no reason or cause or justification other than the fact that the said two persons are heirs of the defendant No. 7 to whom the plaintiff seeks impleadment as defendants in the suit proceedings.
Moreover, the plaintiff petitioner also wants to wriggle out of the contention/objection against the maintainability of suit on ground of limitation and also to escape the objection against the request (to join the said persons) on the ground that such requests/application are time barred.
It is pertinent that the defendant No. 7 was not alive when the suit was filed, however, the said two persons were not impleaded in the suit and immediately after filing the suit, any step in that direction were not taken. Not only this, but the application Exh.14 was filed two months after the Court passed the order dated 31.3.2009 and the Exh.31 came to be filed almost 14 months after the order dated 9.9.2009 whereby the Exh.14 was rejected.
6.8 When the suit qua original defendant No. 7 stands abated and when the order dated 31.3.2009 was not and has not been challenged by the petitioner, such attempt of the plaintiff - petitioner to get the heirs of original defendant No. 7 impleaded by way of backdoor entry in the suit proceedings, cannot be entertained.
The learned advocate for the petitioner tried to distinguish the two applications on the ground that the earlier application was made under Order-22 Rule-3 whereas subsequent application is made under Order-1 Rule-10 and therefore, the subsequent application could not have been rejected on the ground that the earlier application was rejected, however, in the facts of the case, the said submission does not carry the petitioner's case farther.
7. In such facts and circumstances of the case, the Court is required to pierce the facade and look into and through the attempt of the petitioner - plaintiff viz. to revive the claim which has already abated and to overcome and sideline and circumvent the decision which has attained finality and more important reason being that the plaintiff - petitioner wants to keep the dispute alive so as to take advantage of soaring prices of land and thereby to keep the pressure on the said persons for arm-twisting purpose. Such ingenious method of putting the fact - situation (which is existing since 1995) at naught cannot be permitted.
8. Having regard to the aforesaid factual aspects and the position emerging from the said facts, it cannot be said that the learned trial Court has committed any error in rejecting the application Exh.31 or that the reasons and conclusion recorded by the learned trial Court are arbitrary or perverse.
Even if the attempt of the petitioner - plaintiff of assailing one of the reasons assigned by the learned Court viz. the subsequent application Exh.31 is barred by the principle of res-judicata on the ground that the Exh.31 can not be said to be barred by res-judicata since the two applications are taken out under different provisions (though the purpose and object for filing two applications is same) is to be entertained only for examining and testing it, then also, when the substantive decision and conclusion of the learned trial Court is correct and/or when other reason/s is/are justified and sustainable in the facts and circumstances of the case then merely because one of the reasons is not justifiable, then this Court, in writ proceedings, would not be inclined to interfere with such decision and conclusion of the learned trial Court. Ultimately, what matters is the final conclusion and decision of the learned trial Court.
In the facts and circumstances of the case, this Court is of the view that learned trial Court has not committed any error in passing the impugned order and the order does not deserve to be interfered with.
The petitioner has failed to make out any case to interfere with the impugned order.
Therefore, the petition fails and deserves to be rejected and is, accordingly, rejected.
9. At this stage, learned advocate for the petitioner submitted that the petitioner may opt to carry the order further and therefore, ad-interim arrangement, which is made vide order dated 3.2.2012 may be continued for some time.
10. the request is opposed by learned advocate for the respondent.
However, when the petitioner's request against the impugned order is rejected, the respondent has no base to oppose the request.
10.1 Having regard to the fact that the order is in operation since 3.2.2012, the request is accepted. The ad-interim arrangement/relief granted vide order dated 3.2.2012 will continue till 19.4.2014