In CS(OS) 178/2017-DEL HC- Discretion to implead necessary party can be exercised by Court suo moto, on application of plaintiff or defendant as well as on application of person who is not party to pending proceedings: Delhi HC 
Justice Mini Pushkarna [06-10-2022]

Read Order: MRS. REKHA KAPOOR v. DR. PAWAN CHANDRA & ANR 

Tulip Kanth

New Delhi, October 10, 2022: Clarifying that as per Order I Rule 10 CPC, Court has authority to implead a person as a party if presence of such person is considered to be necessary in the pending proceedings, the Delhi High Court has reasserted that necessary parties are those persons in whose absence no decree can be passed by the court or those persons whose presence before the court would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit.

The first defendant-appellant  had approached the Bench of Justice Mini Pushkarna by an application filed under Sections 5 & 14 of the Limitation Act, 1963 r/w Section 151 CPC, seeking condonation of delay in filing chamber appeal. It was the case of the defendant-Appellant that there was a delay of 5 days in filing the accompanying chamber appeal filed under Rule 5, Chapter – II of Delhi High Court (Original Side) Rules, 2018.

Justice  Pushkarna  was also considering another appeal filed on behalf of defendant-appellant against the order of the Joint Registrar whereby the Registrar disposed of the plaintiff’s application under Order XXII, Rule 4 read with Section 151 CPC to bring on record the legal representatives of the second defendant- deceased mother of plaintiff and first defendant. The Registrar held that plaintiff was in conflict of interest with the second defendant, due to which she couldn't be substituted as legal representative of the second defendant.

In this matter, the plaintiff, being daughter, had filed a suit for partition and rendition of accounts against her brother, first defendant and her deceased mother-second defendant, with respect to suit property located in Delhi’s Defence Colony. On the other hand, brother and mother of the plaintiff had put up a case that the property was self acquired property of the father of the plaintiff and first defendant. 

It was the case of defendants that the late father had executed a registered Will wherein he bequeathed all his properties including the suit property to his wife, i.e., second defendant exclusively and absolutely and a duly executed registered gift deed of the deceased mother, thereby gifting suit property in favour of her son,first defendant appellant herein and Dr. Savita Chandra, wife of first defendant. On the basis of said gift deed it was prayed that Dr. Savita Chandra may be brought on record as defendant in the present suit.

The Bench took note of the fact that the wife of the first defendant, Dr. Savita Chandra was claiming right in suit property by virtue of gift deed and Will executed by deceased second defendant in her favor along with her husband-first defendant

On the issue of limitation, after referring to the judgments of the Top Court in Shakti Tubes Limited Through Director Vs. State of Bihar and Others, Roshanlal Kuthalia and Others Vs. R. B. Mohan Singh Oberoi, the Bench held that the period spent in pursuing the first appeal in the present case would be excluded in computation of the period of limitation. Thus, contention on behalf of plaintiff/respondent herein that delay was to be computed from August 14, 2019 to January 30, 2020, was rejected.

The plaintiff’s contention that provisions of Section 5 and Section 14 of the Limitation Act wouldnot be applicable in the present case, was also found to be untenable by the Bench. “Specific liberty had been granted by this Court to withdraw the earlier appeal and to file fresh appeal within two weeks. As already held, period spent in pursuing the first appeal will be excluded in reckoning the limitation period. Accordingly, it is held that there is delay of 5 days in filing the present appeal, that occurred at the time of filing the first appeal”, the Bench noticed while condoning the delay of five days in filing the accompanying chamber appeal.

On the issue of impleadment of parties, the Bench noted, “Avoiding multiplicity of proceedings is one of the aspects of impleading necessary parties. Discretion to implead a necessary party can be exercised by Court either suo moto or on application of plaintiff or defendant or on application of a person who is not party to the pending proceedings.” The judgments of the Apex Court in Pankajbhai Rameshbhai Zalavadiya Vs. Jethabhai Kalabhai Zalavadiya and Amit Kumar Shaw And Another Vs. Farida Khatoon and Another, were also referred to.

Thus, considering that as per Order I Rule 10 CPC enables a court to add any person as a party at any stage of the proceedings, if presence of such person is necessary to effectively and completely adjudicate upon all the questions involved in the suit, the Bench held that Dr. Savita Chandra is a necessary party in the present case.

However, it was also observed by the Bench that the impleadment of Dr. Savita Chandra as defendant in the present case would not be construed as conferring any right upon her to the suit property and the issues as regards whether the suit property was HUF property, whether deceased defendant had any right to execute gift deed or Will or whether said gift deed or Will were validly executed by deceased defendant, were all questions that would be subject matter of adjudication in the pending suit between the parties.