Original plaintiffs are the present petitioners who have challenged the order dated 12th January 2012 passed by the learned Sr. Civil Judge, Baroda below Application Exh. 144 in Regular Civil Suit No. 385 of 1997 rejecting the application for bringing heirs of deceased defendant on record.
There are in all three Special Civil Applications preferred by the original plaintiffs.
Special Civil Application No. 1721 of 2012 is preferred to challenge the order dated 28th November 2011 of the trial Court in the very same suit viz. Regular Civil Suit No. 385/1997, declaring the suit to have abated.
Special Civil Application No. 1716 of 2012 also arises out of an Order dated 28th November 2011 passed by the trial Court below Application 120 in Regular Civil Suit No. 385 of 1997 preferred under Order VI Rule 19 and under Order I Rule 10 CPC.
To understand the tenor of the disputes between the parties, reproduction of brief facts would be necessary.
The petitioner is the original plaintiff who preferred Suit for declaration and permanent injunction against the respondents to the effect that properties mentioned in the suit are joint family properties, purchased from the income of the joint family, and therefore, none of the respondents has any right to deal with the said properties either by transferring, alienating or assigning in any manner.
Petitioner had preferred an injunction application, inter alia, urging to restrain the respondents from transferring in any manner the properties and the Court granted such injunction in favour of the present petitioner on 30th October 1999 in respect of the property bearing Survey No. 53/15A, Tikka No. 3/3 as also in respect of other properties. It is the say of the petitioner that inspite of this categorical order of injunction, some third party has entered into the suit land and the property has changed hands in the year 2005 and Revenue entry was mutated in favour of one Lilavatiben. This was on the strength of the sale deed that these entries were mutated in the Revenue records.
The petitioner preferred an application under Order VI Rule 17 CPC for amendment by impleading the said party - Smt. Lilavatiben Desai and Dakshesh N. Shah - a partnership firm. This was rejected by the trial Court vide its order dated 28th November 2011.
In the meantime, original defendant no. 1 - father of the present petitioner passed away on 21st February 2010. An Application Exh. 144 was preferred by the petitioner to bring heirs and legal representatives of the defendant no. 1 on record by moving an Application dated 5th May 2010. Since the demise was on 21st February 2010 within 90 days of the said period, this Application was moved and yet the Court rejected the said application by its order dated 12th January 2012. This aggrieved the petitioner, and therefore, challenge is made by way of Special Civil Application. While application Exh. 144 was pending, the Court by its order dated 28th November 2011 declared the suit to have been abated and this order is also challenged by a separate writ petition.
Learned advocate Shri Majmudar appearing for the petitioner urged fervently to this Court that the application which was moved was within the time prescribed under the Limitation Act for impleading the legal heirs of the original defendant no.1, however, for some strange reasons the said application has been rejected. Moreover, without deciding that application for impleading the heirs, the trial Court passed an order of abating the suit and subsequent thereto, application for impleading the heirs came to be decided, which is again a patently erroneous approach. He also lamented the fact of not allowing the subsequent purchasers and heirs of deceased Smt.Lilavatiben to be brought on the record. According to him, the issues framed in this case are suggestive and indicative that in absence of the original defendant no.1- the father, the cause of action of the suit would not survive. Moreover, by denying the impleadment of the heirs there are factual and legal errors committed by the Court.
Moreover, on the ground that other defendants who have been impleaded are merely ornamental and since no prayer is sought against any of them, the Court has passed an order of abating the suit.
Taking firstly the order of abatement of the suit alongwith Application Exh. 144, as rightly pointed out by learned advocate Shri Majmudar when the application was already moved by the present petitioner-original plaintiff to implead legal heirs of the original defendant no.1, on the ground that there are no prayers sought for against any of the heirs, the Court did not deem it fit to implead the heirs. It was also actuated by the fact that on 20th January 2005, the original defendant no. 1- father has transferred the suit property by registered sale deed in favour of the proposed defendant no.9-Smt. Lilaben G. Desai through power of attorney holder Shri Dakshesh N. Shah, who is applicant of Civil Application No. 2893 of 2012. The Court dismissed the application to implead heirs of Smt. Lilavatiben and that was another factor which weighed with it to deny this application of impleading the heirs of defendant no.1.
Looking at the issues framed by the Court where it is not only the defendant no.1-the father against whom the prayer has been sought, there are other defendants in whose respect the issues nos. 1 & 2 have been framed as well. Moreover, there are legal heirs of the defendant no.1 and who can step into the shoes of the original defendant no.1. Moreover, application for impleading daughters as the legal heirs within the time frame permitted under the Limitation Act cannot be denied only on the count that they were not originally impleaded as party defendants. For the sample reason that if they were not necessary or proper parties when the suit was filed, they being the heirs of original defendant no.1 can surely be required party, be needed to be brought on the record.
The Court also committed a patent error by denying such a request of impleading heirs on the ground that the request for impleading heirs of Smt. Lilavatiben has also been denied, who was transferred the property by a registered sale deed way back in the year 2005. The trial Court did not take into account the fact that from the year 1998, injunction was operating in favour of the present petitioner and any transfer subsequent thereto will be governed by the principles of lis pendence as provided under Section 52 of the Transfer of Property Act. In other words, even without impleading heirs of Smt. Lilavatiben also, all the proceedings of this suit will be binding to the subsequent purchasers and therefore, application of present petitioner to join heirs of Smt. Lilavatiben also could not have been denied. But, even if that aspect is not combined at this stage, independently also, that cannot be ipso facto a reason for denying impleadment of the heirs of deceased-org. Defendant no.1.
It is all along emphasized by the otherside that the suit of the present petitioner is bogus and the property of the defendant no.1 is a self-acquired property, the suit has been preferred with an oblique motive. However, this aspect can be decided by the Court on merits on recordance of evidence but that cannot preclude the petitioner to implead legal heirs nor could that deny him protection made available by the provisions of Transfer of Property Act.
Again, this application is decided on 12th January 2012 ie., subsequent to passing of the order of abatement and that itself is an erroneous approach - contrary to the settled procedure prescribed under the law. Once having passed an order of abatement, the Court could not have decided application for impleading of heirs thereafter. Again, adjudication of this Application Exh.144 ought to have preceded the order of abatement below Exh.1. Be that as it may, even the reasonings given in abating the suit also does not specify the reasons. One of the grounds given while abating the suit is that Smt. Lilavatiben died on 21st March 2009 and the proposed defendant no.10 declared this aspect on 22nd June 2011. The Court was of the opinion that despite such declaration made, within 90 days, her heirs were not brought on the record, the suit was required to be abated. Thus, on both the grounds that the prayer was only against defendant no.1 who passed away on 20th February 2010 and since no heirs of Smt. Lilavatiben had been brought on the record, the suit was ordered to be abated.
As already mentioned hereinabove, the death of original defendant no.1 cannot take away the cause particularly when the heirs were already sought to be brought on the record and non-impleading of Smt Lilavatiben would have no bearing either on the application of impleading the heirs or on the final outcome of the suit, as admittedly such a transfer has been effected during the pendency of the suit.
This brings this Court to the order passed below Application Exh.120 which is an application made under Order VI Rule 17 as well as under Order I Rule 10 CPC. According to the petitioner-plaintiff since the registered sale deed was effected on 20th January 2005 whereby the power of attorney holder Shri Dakshesh N. Shah transferred the suit property of Smt. Lilavatiben and entry was mutated in the revenue record, they were proposed to be impleaded as party-defendant nos. 9 & 10. According to the proposed defendant no.10-power of attorney holder, the said document executing power of attorney in his favour was on 19th March 1991 registered with the sub-registrar. The document of power of attorney preceded the suit and also the order of injunction. The subsequent transfer in the year 2005 will have no binding effect on the said defendant. The Court on the ground that the document was registered in the month of January 2005 before the sub-registrar office and this application to implead parties as proposed defendants was preferred after three years, held the same as barred by the law of limitation. Moreover, it reiterated the ground of non-impleading the heirs of Smt. Lilavatiben and on all these counts, rejected the application.
In the opinion of this Court, without taking vital aspects into consideration, this application has been decided. Firstly, any act done by the power of attorney is an act of the person who gave such authority to the holder. The original defendant no. 1 was prevented from transferring the suit property in the year 1998. Even though he gave a power of attorney to the proposed defendant no.10-Shri Dakshesh Shah and though that document was registered with the sub-registrar office, the fact remains that the person owning the property was injuncted by the order of the Court of law, and therefore, that injunction would also operate against his power of attorney. Having given such power before the suit was filed cannot authorize the power of attorney holder to transfer the suit land despite the Court's injunction; and secondly, when such a transfer was effected pendente lite, the request to implead Smt. Lilavatiben and power of attorney holder as the proposed parties will have no bar of limitation. As mentioned hereinabove, there would be no necessity to implead them as party as the outcome of this suit will have complete binding effect on the subsequent purchasers. However, if the heirs of Smt. Lilavatiben have not been impleaded within 90 days from the knowledge of the plaintiff ie., from 28th November 2011; as mentioned by the Court in its order passed below Application Exh.1, the present petitioner would not be precluded to so implead by virtue of the limitation set out under the Limitation Act. Resultantly, it can be concluded this wise -
That the dismissal of Application Exh. 144 denying impleadment of the heirs of defendant no.10 is hereby quashed. Consequentially, the order passed below Application Exh. 1 of abatement of the suit also stands quashed. The petitioner plaintiff shall implead heirs of the defendant no.1 within 14 days from the date of receipt of this order and the subsequent proceedings shall be undertaken in accordance with law.
Order rejecting Application Exh. 120 also is quashed and set-aside. Notice should be issued to the proposed defendant no.10. As far as Smt. Lilavatiben is concerned, when she was still a proposed party, who had not been impleaded as party defendant, and therefore, to bringing her heirs on the record, the notice be issued afresh to them as proposed parties, since the order below Exh. 120 is being quashed.
Without being influenced by any of the observations made hereinabove in this order, the suit shall proceed expeditiously as possible where the petitioner-original plaintiff has also assured this Court of full cooperation in expeditious trial of the proceedings.
With these observations, these Special Civil Applications are allowed. Rule is made absolute to the aforesaid extent. Direct service of this order is permitted.
{Ms.
Sonia Gokani, J.} Prakash*