Inveighing the order dated 17.08.2007, passed by the Additional District Court (Fast Track Court) Namakkal in I.A.No.21 of 2004 in O.S.No.26 of 2004, this civil revision petition is focussed.
2. Heard both sides.
3. A summation and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
(i) The first respondent/plaintiff filed the suit O.S.No.131 of 1999 seeking the following reliefs:
VERNACULAR ( TAMIL ) PORTION DELETED
(ii) During the pendency of the suit, I.A.No.21 of 2004 was filed under Order 22 Rule 4 of CPC for impleading the L.Rs of the deceased D3 and D4 as D6 to D9. The lower Court allowed the application. Being disconcerted and aggrieved by the order of the lower Court, the proposed defendants 8 and 9 filed this revision petition on various grounds.
4. The learned counsel for the revision petitioners would advance his argument to the effect that D3 and D4 died long prior to the filing of suit and in such a case, invoking Order 22 Rule 4 of CPC is next to impossibility. If at all any party to the lis dies during the pendency of the suit, the question of invoking Order 22 Rule 4 CPC would arise. But in this case, suppressing the material facts relating to the death of D3 and D4 even anterior to the filing of the suit, the plaintiff had chosen to file I.A.No.21 of 2004 which deserves to be simply dismissed in limine. But the lower Court erroneously allowed the I.A. by its cryptic order.
5. A bare poring and perusal of the order of the lower Court would ex facie and prima facie reveal and display that the order of the lower Court is far from satisfactory. The relevant facts are that D1 and D2 borrowed money from the plaintiff, for which, D3 through his son D4, the Power of Attorney created an equitable mortgage by deposit of title deeds by way of securing the prompt repayment of the loan by D1 and D2 in favour of the plaintiff. It so happened that according to the plaintiff, D1 and D2 committed default.
6. The records would reveal and exemplify that D3 and D4 died long prior to the filing of the suit, which has not been contradicted by the other side. As such, it is pellucid and palpable that even on the date of filing the suit, D3 and D4 were not in existence, which tantamounts to the suit having filed only as against D1 and D2 and not against D3 and D4. Further, the plaintiff wanted to implead the L.Rs of D3 because he happened to be the original mortgagor who created the mortgage through his son D4. Now D3 and D4 died long prior to the filing of the suit. Hence what the plaintiff should have done was that he should have filed an application under Order 1 Rule 10 CPC and not the one under Order 22 Rule 4 of CPC.
7. I am fully aware of the fact that owing to some misconception or mistake such application I.A.No.21 of 2004 was filed. Hence I am of the view that one more opportunity should be given to the petitioner to get corrected the said application as one under Order 1 Rule 10 of CPC, and proceed with his I.A. In such an event, the proposed parties should be given due opportunity to file counter raising the limitation point also as correctly pointed out by the learned counsel for the revision petitioner. Here, the mortgage was created on 01.06.1993 and the suit was filed on 04.12.1998. However, the I.A.No.21 of 2004 was filed during August 2000. Hence necessarily the limitation point also should be considered by the lower Court. As such, without focussing its attention on the proper line and making a proper approach, simply the lower Court allowed the application as has been correctly pointed out by the learned counsel for the petitioners due to non application of mind. Hence the order of the lower Court is set aside and the matter is remitted back to the lower court and the petitioners are given liberty to get amended the said I.A. as one under Order 1 Rule 10 CPC and also for adding necessary averments in the supplementary affidavit as well as in the petition, whereupon the lower Court shall give due opportunity of filing counter to the respondents including the revision petitioners herein. Thereafter, the lower Court is enjoined to decide the limitation point also as it is obvious and axiomatic that the date of the filing of the IA.No.21 of 2004 alone should be taken as the cut off date for computing the limitation period. If at all that application could be held to be within the limitation period, then the question of adding proposed parties would arise, as otherwise such application should be dismissed.
Accordingly, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
gms To Additional District Court (Fast Track Court) Namakkal