PAYYANNUR v. KUNNUMMAL LAKSHMI

The petitioner herein is the plaintiff in O.S.No.306/2012 of the Sub Court, Payyannur. Petitioner is aggrieved by Exts. P9 and P11 orders. Ext.P9 dismissed Ext.P8 application for impleadment and Ext.P11 dismissed Ext.P10 application for amendment. Ext.P11 is infact consequential to Ext.P9.

2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

3. Learned counsel for the petitioner submits that the suit is based on an agreement for sale by and between the petitioner/plaintiff and one Raghavan. The agreement was entered into on

20.09.2008, date, petitioner/plaintiff had advanced a sum of Rs.5,00,000/- to the said Raghavan, as part of the O.P.(C).No. 2328 of 2023 ..3.. sale consideration. The agreement was not performed. In the mean time, Raghavan died and the suit was instituted against his legal heirs. At the time of institution of the suit, the plaintiff was aware that Raghavan had two wives, of which, the first wife, who according to the plaintiff is the legally wedded wife, was impleaded as defendant no.1 and the children of Raghavan through defendant no.1 were impleaded as defendants 2 and 3. The children of Raghavan through his second wife were impleaded as defendant nos.4 and 5. However, the second wife of Raghavan was not impleaded. By virtue of Ext.P8 application, she was sought to be impleaded as Additional 6th defendant. According to the learned counsel, additional 6th defendant is a necessary party to the suit, wherefore, dismissal of Ext.P8 application vide Ext.P9 order is bad in law.

4. Learned counsel for the respondent submits that, as early as in the year 2013, defendants 4 O.P.(C).No. 2328 of 2023 ..4.. and 5 (who are the children of the additional 6th defendant sought to be impleaded) filed written statement, contending that their mother, who is a necessary party, has not been impleaded in the suit. However, there is a whopping delay of about ten years in seeking impleadment, vide Ext.P8. According to the learned counsel, the application for impleadment was rightly dismissed by the learned Sub Judge, finding that the same is highly belated.

5. Having heard the learned counsel appearing on both sides, this Court finds no reason to interfere with Ext.P9 order of the learned Sub Judge, by invoking the jurisdiction under Article 227 of the Constitution. As rightly contended by the learned counsel for the respondents, the plaintiff/petitioner had notice about the second wife of the said Raghavan, as early as in 2013. However, it was on the date on which the suit was listed for trial that the plaintiff/petitioner O.P.(C).No. 2328 of 2023 ..5.. came up with a petition to implead the said second wife of Raghavan. As rightly found by the learned Sub Judge, there is inordinate delay, which is not even sought to be explained in Ext.P8 application. It is relevant to note that in Ext.P8 application, the plaintiff/petitioner traces the source of information to the written statement preferred by the 4th defendant, which in fact was filed in the year 2013. In the absence of any explanation whatsoever, the impugned Ext.P9 order cannot be found fault with.

6. That apart, this Court also notice another aspect, which dissuades this Court from interfering with Ext.P9 order. Going by Section 21 of the Limitation Act, a suit as against a newly added defendant will be deemed to have been instituted only when such defendant is so made a party. The proviso to Section 21 (1) applies only in a case where the omission to include the defendant was due to a mistake made in good faith. O.P.(C).No. 2328 of 2023 ..6.. In the instant case, there exists hardly any circumstance to invoke the proviso, inasmuch as, the plaintiff/petitioner was put to notice of the necessity to implead the mother of defendants 4 and 5, as far back as on 2013. If that be so, even if the impleading petition is allowed, the suit as against the proposed additional 6th defendant can be deemed to have been instituted on the date of such impleadment, in which case, the claim as against the said additional defendant will stand time barred, the claim being one for money. In these circumstances, this Court finds no reason to interfere with Ext.P9 order. If Ext.P9 order is sustained, Ext.P11 order also has to be sustained. It is so done. The Original Petition (Civil) fails and the same will stand dismissed. TR Sd/- C. JAYACHANDRAN JUDGE O.P.(C).No. 2328 of 2023 ..7.. APPENDIX OF OP(C) 2328/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 Exhibit P11 A TRUE COPY OF THE PLAINT IN O.S.NO.306/2012 ON THE FILES OF SUB COURT, PAYYANNUR A TRUE COPY OF THE AGREEMENT DATED 20.09.2008 EXEUCTED BETWEEN THE PETITIONER AND THE DECEASED VADAKKAN RAGHAVAN ON 20.09.2008 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT NO.1 AND 2 DATED 08.04.2013 IN O.S.NO.306/2012 A TRUE COPY OF THE WRITTEN STATEMENT DATED 08.03.2018 FILED BY THE 3RD RESPONDENT IN OS NO.306/2012 A TRUE COPY OF THE WRITTEN STATEMENT DATED 01.08.2013 FILED BY THE 4TH DEFENDANT IN O.S.NO.306/2012 ON THE FILES OF SUB COURT, PAYYANNUR A TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.NO.1/2023 IN O.S.NO.306/2012 ON THE FILES OF SUB COURT, PAYYANNUR A TRUE COPY OF THE ORDER DATED 03.01.2023 IN IA.NO.1/2023 IN O.S.NO.306/2012 ON THE FILES OF SUB COURT, PAYYANNUR A TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.NO.2/2023 ON THE FILES OF SUB COURT, PAYYANNUR A TRUE COPY OF THE ORDER DATED 03.01.2023 IN I.A.NO.2/2023 IN O.S.NO.306/2012 ON THE FILES OF SUB COURT, PAYYANNUR A TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.NO.3/2023 IN O.S.NO.306/2012 ON THE FILES OF SUB COURT, PAYYANNUR A TRUE COPY OF THE ORDER DATED 03.01.2023 IN I.A.NO.3/2023 IN O.S.NO.306/2012 ON THE FILES OF SUB COURT, PAYYANNUR