Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2016 Supreme(Bom) 1589

R.K.DESHPANDE
Pandurang Sitaram Pande, (Deceased through L. Rs) Org. Pltff Vinaykumar Pandurang Pande – Appellant
Versus
Avinash Ramkrishna Pande – Respondent

Advocates:
Advocate Appeared:
For the Appellant : Shri. C.A. Joshi, Counsel.
For the Respondent:Shri. Anil Mardikar, Senior Counsel assisted by Shri. Sumit Joshi, Advocate.

Judgement Key Points

Key Points: - (!) O.1 R.10(2) CPC empowers court to add or strike parties at any stage. - (!) Court may exercise discretion at second appellate stage to permit joinder; added parties relate back to filing date, curing defect. - (!) Upon granting permission to join, added parties’ replies are on record; suit cannot be dismissed for non-joinder. - (!) Civil Application allowing joinder of two sisters was disposed of, enabling their addition as defendants/respondents. - (!) Limitation discussion: dispute about whether Article 65 or Article 113 applies; Article 113 3-year period; Article 65 12-year period; court discusses applicability. - [4000527040015] Discussion of which limitation article applies; decision clarifies applicability in context. - (!) Decree details: plaintiff entitled to partition of specific shares; enumerates shares for defendants. - (!) Enquiry into mense profits under Order 20, Rule 12 from filing date. - (!) Will of Kamal (Exh.117) accepted; affects share calculation. - (!) Appeal partly allowed; decree modified accordingly.

Question 1?

How to permit the addition of necessary parties at any stage of proceedings in a suit for partition and separate possession?

Question 2?

What is the applicable law of limitation for joining necessary parties in a partition suit and how does it affect dismissal for non-joinder?

Question 3?

What are the effects of joining the legal representatives of two sisters on the record and the consequent shares in the partition decree?

JUDGMENT :

R.K. Deshpande, J.

One Sitaram @ Balabhau Pande was the owner and in possession of the suit property. He died in the year 1978 and was survived by 5 sons, namely, (1) Ramkrushna, (2) Pandurang, (3) Haribhau, (4) Laxman and (5) Bharat and two daughters, namely, (1) Smt. Jankibai and (2) Smt. Tarabai. Smt. Dwarkabai, wife of Sitaram, died in the year 1943 and was thus a predeceased. The son, Pandurang Sitaram Pande, filed Regular Civil Suit No. 81 of 2001 on 08.11.2001 for partition and separate possession of his ?th share in the suit properties. He also claimed a decree of Rs. 30,950/- with future interest at the rate of 18% per annum by way of mesne profit and also claimed an enquiry into the mesne profit under Order 20, Rule 12 of Civil Procedure Code. The suit was filed on the basis of cause of action shown in the plaint as 06.10.2001 when the plaintiff by issuing notice to the defendant no.7 called upon him to effect partition of the suit property.

2. The brothers Haribhau and Laxman were joined as defendant Nos. 1 and 2. The third brother Bharat died before filing of suit and therefore, his widow Smt.Kamal was joined as defendant No. 3. Two sisters namely Smt.Jankibai a

Click Here to Read the rest of this document