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1975 DIGILAW 100 (KAR)

KARIYAPPA v. PATEL RUDRAPPA

1975-07-22

K.J.SHETTY

body1975
( 1 ) WHAT is the duty of a party who has obtained an order from the Court under Or. 22, R. 4 CPC? Is it for him to correct the cause title of the plaint to give effect to the said order? Should he file an application under Or. 6, r. 18 of CPC for leave to amend the cause title? These are the questions that arise for consideration in this revision petition. ( 2 ) THE matter arises in this way: One Angadi Kariyappa brought a suit for mesne profits. During the pendency of the suit, defendant 3 died. On 21st Deer, 1968, the, plaintiff filed an application under Or. 22, R. 4 of CPC to bring on record the legal representatives of the deceased. On 22nd Septr, 1969, the Court allowed the application. But unfortunately nobody did the necessary correction to that effect in the cause title of the plaint. Thereafter, this suit was transferred from one Court to another. After the lapse of a couple of years, the plaintiff was informed that the names of legal representatives of the deceased defendant were not recorded in the cause title of the suit. The plaintiff, then came forward with an application under Or. 6, r. 18 of CPC for extension of time and leave to amend the cause title so as to give effect to the order d/. 22nd Sepr, 1969. The plaintiffs probably thought that the amendment ought to have been made within fourteen days from the order d/. 22nd Sepr, 1969, and since it was not made, he could not amend the cause title without the leave of the Court as required under or. 6, R. 18 of CPC. The Court rejected the said application on the ground that it was highly belated. ( 3 ) THE validity of the said order is called into question in this revision petition. ( 4 ) THE principal question that arises for consideration is whether or. 6, Rr. 17 and 18 of CPC are attracted after the order was made under or. 22, R. 3 or R. 4 of CPC. The lower Court proceeded on that assumption. But, it seems to me that there is no justification for such conclusion. ( 5 ) OR. 6, Rr. 17 and 18 of CPC are attracted after the order was made under or. 22, R. 3 or R. 4 of CPC. The lower Court proceeded on that assumption. But, it seems to me that there is no justification for such conclusion. ( 5 ) OR. 22, R. 4 of CPC, so far as it is relevant provides : it is seen therefrom that when the defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. When once the order is made under the above provision, the said order should be given effect to, by recording the necessary names in the cause title of the pleadings. It might be done either by the party who obftained the order or by the Office of the Court. All that is required to be done is to effect the necessary changes in the particulars of the plaint in substituting the names of the heirs of the debased. When such change is made or recorded, it cannot be considered as an amendment of the plaint within the meaning and scope of Or. 6, R. 17 Substitution of the legal representatives of the deceased is made to give effect to the order made by the Court under Or. 22. R. 3 or 4. Or. 6, R. 17 or Or. 6, R. 18 of cpc has no application to such situation. ( 6 ) MY view finds support from the observation in thp decision of the bombay High Court in Darbar Alabhoi Vajsurbhai v. Bhura Bhaya, AIR. 1937 Bom. 401, wherein it was observed :" It was no part, of the appellant's duty to take the necessary steps to carry out the Court's order for the substitution of the names of the heirs of the deceased respondent who were properly served with notices in order to correct the record of the Court in terms of its order. That was a ministerial function which thp Court's establishment WPS charged to perform. If it was not performed or neglected, the fault would not lie with the appellants. " ( 7 ) IN the view that I have taken, it has to be held that the plaintiff's application under Or. 6, R. 18 of CPC was uncalled fox. That was a ministerial function which thp Court's establishment WPS charged to perform. If it was not performed or neglected, the fault would not lie with the appellants. " ( 7 ) IN the view that I have taken, it has to be held that the plaintiff's application under Or. 6, R. 18 of CPC was uncalled fox. ( 8 ) MR. M. S. Gopal. learned Counsel for the contesting respondents, urged that the suit has abated since the legal representative of the deceased plaintiff has not been brought on record within the time allowed by law. I have no material to hold one way or the other and I express no opinion on that contention. The respondents may raised the same before the Court below. ( 9 ) WITH the above observation, this petition is disposed of, without an order as to costs. --- *** --- .