The importance of bringing necessary parties on record without delay and the application of Rule 10 of Order 1 CPC and Section 21 of the Limitation Act, 1963 in the context of a counterclaim.

JUDGMENT

Dama Seshadri Naidu, J. - Facts:

The petitioner purchased a piece of property from the respondents. Later, he came to know that the respondents had no title to the property. So, he repurchased the property from those whom he believed to be the actual owners.

2. As the petitioner paid the sale consideration, first, to persons without title to the property, he wanted to recover the money. So he filed Special Civil Suit No.3/2011 before Civil Judge, Senior Judge, at Quepem. He has sought a declaration that the Sale Deed the respondents executed is void, and they should return the sale consideration. In that suit, the respondents filed a counterclaim seeking a declaration and other consequential reliefs. To put this counterclaim in perspective, we need to narrate how the title to the property in question flowed.

3. One Murari Vithal Sawardekar was the head of the family, which included his wife and daughter. When his wife died, the succession opened, and the property fell to his daughter's share. But the daughter, too, predeceased him. Then, the property reverted to Murari Sawardekar, the father and head of the family. The respondents are the other children of Murari Sawardekar.

4. But during his lifetime, Murari Sawardekar gifted the property to one Vithal Sawardekar. It was through a registered Deed of Gift, dated 10.05.1984. So, when Murari Sawardekar died, he had no subsisting interest in the property. That accepted, the question of the respondents' succeeding to that unavailable estate would not arise. At least, this is the petitioner's plea.

5. In the counterclaim, the respondents as the plaintiffs wanted the Gift Deed, dated 10.05.1984, declared void. But they did not add the donee or his legal representatives as parties to the counterclaim. They, in fact, showed only the petitioners as the defendants in that counterclaim. It is even though the petitioner was not a party to the document. In the same year, in 2011, the petitioner filed the written statement and pointed out that the donee's legal representatives are the necessary parties. In their absence, he has contended, the counterclaim must fail for non-joinder of necessary parties.

6. Nine years later, in 2020, the respondents applied to the trial Court, invoking Rule 10 Order 1 of CPC, to implead the original donee's legal representatives as the defendants in the counterclaim. Through the impugned order, dated 01/10/2019, the trial Court allowed that application. Aggrieved, the petitioner, who is the original defendant in the counterclaim, has filed this Writ Petition.

Arguments:

Petitioner:

7. Shri Coutinho, the learned counsel for the petitioner, has drawn my attention to sub-rule 5 of Rule 10 of Order 1, CPC. According to him, a party brought on record in a pending suit should be deemed to have been added as a party from the date he had been served with the summons. Only under exceptional circumstances can a party be brought on record as if he had been a party from the inception. Here, according to him, the trial Court does not spell out whether the parties were brought on record prospectively or otherwise.

8. Shri Coutinho has also pointed out that the respondents, in their own words, came to know about the Gift Deed in 2011. Therefore, to seek a declaration about that Deed, they had the cause of action then. But they did not choose to implead the donee or, in his absence, his legal representatives. Instead, they sought the relief of declaration against the petitioner, who was not a party to that gift deed. Pointing to section 21 of the Limitation Act, Shri Coutinho asserts that the respondents' claim against the parties now sought to be brought on record stands barred by limitation. To support his contentions, he has relied on Vasant Permanand Muley v. Aurangabad Municipal Council, (2009) 3 AllMR 1. Therefore, he has urged this Court to allow the Writ Petition.

Respondents:

9. Shri Venkatesh R. Tamba, the learned counsel for the respondents, has submitted that the