Nathulal vs Gangabishan - 1986 Supreme(MP) 592

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : M. S. Kanga.
For the Respondent: R. S. Garg.

Headnote:Civil Procedure Code, 1908 – O. 31, R. 2 and O. 1, R. 10 – necessary parties impleaded after realising mistake – prayer rightly allowed.
        Short Note
       1. After the case was received for fresh trial before the trial Judge, an application was filed purporting to be under order 1, rule 10, Civil Procedure Code for joining applicants Ramnarayan. Devchand and Ramlal as defendants being the trustees who were not impleaded earlier. The learned trial Judge allowed that application and directed that they be joined as defendants. The applicants being aggrieved by this order, have filed this revision petition.
       2. Held : The learned counsel for the applicants contended that in view of the specific direction contained in the remand order, the Court below had no jurisdiction to allow the application of joinder of parties. He relied on the cases of Commissioner of Income Tax and Bhandara v. Dewas Cine Corporation (1969 J.L.J. Short Note No. 46) and Rukhmanand v. Dinbandhu and others (1971 JLJ Short Note No. 159). The cases are not in point and the statement of law made therein will not apply to the facts of this case. The remand order related to the pleadings as they existed when the matter came in appeal. However, when new facts arose and the plaintiff felt that non – joinder of some of the trustees will be fatal to the suit, instead of maintaining the correctness about the validity of the plaint, he could very well choose to join the remaining trustees so that the requirement of Order 31, rule 2, civil Procedure Code could be satisfied. The remand order did not foreclose such an application by the plaintiff. Thus, there was no error of jurisdiction in the order of the Court below in allowing joinder of necessary parties.
       3. The next question is whether the provision under order 1, rule 10 (5) Civil Procedure Code with regard to limitation will apply to the newly added defendants. This matter has to be left for decision by the Court below because this question being a mixed question of fact and law has to be decided by the Court below with advertence to order 1, rule 10 (5) Civil Procedure Code and section 21 of the Limitation Act. It is open to the defendants to raise a specific plea in that behalf if and when it is so advised. 1969 JLJ SN 46 and 1971 JLJ SN 159 distinguished.
       Revision dismissed.