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1983 DIGILAW 605 (ALL)

Mahendras Kaur v. Hafiz Khalil

1983-09-05

A.N.VARMA, K.C.AGRAWAL, SATISH CHANDRA

body1983
JUDGMENT K.C. Agrawal, J. - This Full Bench has been constituted to decide the correctness of the decision in Khalil Ahmad and Others Vs. Additional District Judge, Gorakhpur and Others, AIR 1974 All 422 . 2. The facts of the case relevant for deciding the reference are these. Hafiz Khalil, opposite party No. 1 filed Suit No. 309 of 1972 for injunction against Smt. Jiwan Kaur (since deceased) and Sardar Inder Singh restraining them from making any construction on the land in suit, and further from interfering in his right of egress and ingress over the land in dispute. 3. Smt. Jiwan Kaur died on November 17, 1974. The Plaintiff did not move any substitution application and setting aside abatement within time prescribed by law. Much after the expiry of time, the Plaintiff applied on 18th May, 1976, under Order XXII, Rule 4 of the CPC for substitution on the ground that he had acquired knowledge of the death of deceased Smt. Jiwan Kaur on 27th March, 1976. Thereafter, he moved two applications, one for condonation of delay and thereafter on 7th September, 1976 for setting aside the abatement. 4. Having held that the delay had not been satisfactorily explained, as there was no sufficient cause for condonation of delay and setting aside the abatement, the learned Munsif rejected the application on 31st January, 1978. Being of the opinion that the heirs of the deceased Smt. Jiwan Kaur could be brought on record under Order 1, Rule 10 of the CPC despite the rejection of the substitution application and the applications for setting aside abatement and condonation of delay, the Court directed for impleadment of the heirs of the deceased Smt. Jiwan Kaur on 31st January, 1978. Learned Munsif relied on Khalil Ahmad v. Additional District Judge (supra) for directing impleadment of the heirs of the deceased Smt. Jiwan Kaur. In this case, a Division Bench of this Court held that Order I, Rule 10(2) of the CPC gives power to the Court to implead any person as a party when such impleadment is necessary to enable the Court to effectually adjudicate upon the questions involved in the suit. Inaction of the Plaintiff to implead or bring on record a person as Defendant, according to the Division Bench, cannot affect the Court's power under this Rule. 5. Inaction of the Plaintiff to implead or bring on record a person as Defendant, according to the Division Bench, cannot affect the Court's power under this Rule. 5. This revision preferred against the aforesaid judgment when was listed before a learned Single Judge of this Court, he entertained doubts about the, correctness of the view taken in Khalil Ahmad v. Additional District Judge, Gorakhpur (supra). Consequently, he directed the papers to be laid before the Hon'ble the Chief Justice for referring the case to a larger Bench. 6. The case came up before a Division Bench on 2nd July, 1979. The Bench remitted an issue about the sufficiency of cause for condonation of delay to the trial Court for decision inasmuch as there was no finding on this issue. The finding returned on this controversy was against the Plaintiff opposite party. However, being of the view that the reference made by the learned Single Judge should more appropriately engage the attention of a Full Bench, the Division Bench referred the case to the Full Bench on July 2, 1979. Consequently, the Hon'ble the Chief Justice has constituted this Bench for deciding whether the view in Khalil Ahmad v. Additional District Judge, Gorakhpur (supra) laid down the law correctly. 7. Order XXII of the CPC applies to cases of creation, transfer or devolution of interest during the pendency of a suit. It is exhaustive of the manner in which persons who died during the pendency of the suit or appeal can be represented by their heirs and-legal representatives. The stage at which Order XXII comes into play is when one of the litigants necessary to the suit is dead. Immediately after the expiry of 90 days of the death of such a person, the suit stands automatically abated. If the suit is one in which the "right to sue" does not survive, the death puts an end to the suit. If, on the other hand, it is a suit in which the "right to sue" survives, the death will not put an end to the suit. 8. In Bibi Rahmani Khatoon and Others Vs. Harkoo Gope and Others, AIR 1981 SC 1450 , the Supreme Court examined the scheme of Order XXII of the CPC and after having examined the scheme, the Supreme Court held: The concept of abatement is known to civil law. 8. In Bibi Rahmani Khatoon and Others Vs. Harkoo Gope and Others, AIR 1981 SC 1450 , the Supreme Court examined the scheme of Order XXII of the CPC and after having examined the scheme, the Supreme Court held: The concept of abatement is known to civil law. If a party to a proceeding, either in the trial Court or in appeal or revision dies and the right to sue survives or a claim has to be answered, the heirs and legal representatives of the deceased party would have to be substituted and failure to do so would result in abatement of proceedings. Now, if the party to a suit dies and the abatement takes place, the suit would abate. 9. The abatement of a suit is automatic. No specific order is required to be passed by the Court for the said purpose. For 90 days, the period prescribed for moving of application for substitution, the suit does not finish or is not put to an end to. But, if no substitution application is filed, the conclusion automatically coming into operation is to bring about an end to the suit. 10. Order XXII of the CPC lays down a wholesome procedure for moving an application to bring on record the heirs of the deceased litigant. If the application is not filed within 90 days, the suit will stand abated and the effect of its abatement under the provisions of any of the previous rules of Order XXII is dealt with in Rule 9, and Sub-rule (2) thereof provides the remedy by the person aggrieved by the abatement. Under Rule 9, the Plaintiff or the person claiming to be the legal representative of the deceased Plaintiff can apply for setting aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court can set aside the abatement or dismissal of the suit on such terms as to costs. On setting aside the abatement, life into the suit is infused and it will proceed from the stage at which the death had taken place. It may be stated that a legal representative can continue the suit only on the cause of action sued upon and cannot set up a new or individual right (See Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, AIR 1972 SC 2526 . It may be stated that a legal representative can continue the suit only on the cause of action sued upon and cannot set up a new or individual right (See Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, AIR 1972 SC 2526 . He thus cannot take or set up a plea open to him personally. His plea would be such as is appropriate to his character as legal representative. He will not be entitled to take a plea contrary to the case taken up by the deceased. 11. Order XXII of the CPC specifically lays down the procedure to be followed on "death, marriage and insolvency of parties." Order I, Rule 10 CPC confers power on a Court to add a person as a party at any stage of the proceeding either upon or without the application of either party, if in the opinion of the Court the addition of such a person appears to be just in order to enable it effectively and completely to adjudicate upon and settle all the questions involved in the suit. There is a vital difference between Order I, Rule 10 and Order XXII, Rules 4 and 9 of the Code of Civil Procedure. Order I Rule 10 does not deal with substitution of heirs and legal representatives of a deceased. It confers power on the Court to implead or add a person as party or to strike down a person improperly joined, if the Court finds it necessary for determination of the real matter in dispute. Order XXII, Rule 4 confers right on a Plaintiff to bring on record the heirs and legal representatives of a deceased. If the right to sue does not survive, the suit shall come to an end and shall abate. The right conferred by Order I, Rule 1 CPC enables the Court to add a person as a party. Order I, Rule 10 has a specific and limited purpose which is different from one contemplated by Rules 4 and 9 of Order XXII of the Code of Civil Procedure. The two provisions deal with different eventualities and contingencies. The right conferred by Order I, Rule 1 CPC enables the Court to add a person as a party. Order I, Rule 10 has a specific and limited purpose which is different from one contemplated by Rules 4 and 9 of Order XXII of the Code of Civil Procedure. The two provisions deal with different eventualities and contingencies. As already held above, it is one thing to file an application to implead certain persons as party to the suit in place of a deceased party under Order XXII, Rule 4 CPC and it is entirely different to apply under Order I, Rule 10 CPC to add a new party. The main difference is that the rights of the parties in one case would be altogether different than that of the party in the other case. A legal representative has the same status and rights as that of the deceased, whereas the rights and obligations of a person impleaded under Order I, Rule 10 CPC would not be circumscribed, and that he would be entitled to take any plea which he is advised to do. 12. In State Trading Corporation of India Ltd. v. K.V. Vaidyalingam AIR 1978 Mad 294 , this aspect of the matter has been considered and the difference between the rights of two types of persons brought on record has been highlighted. 13. In Goverdhan Dass and Another Vs. Darshan Singh and Others, AIR 1969 P&H 372 , a learned Judge has referred to the purpose of Order I, Rules 10(2) of the CPC and laid down that addition of a party under the aforesaid provision can be done only in a pending suit and not in one where the Defendant is dead. 14. In Sisir Kumar Tarafdar Vs. Manindra Kumar Biswas and Another, AIR 1958 Cal 681 , a Division Bench of the Calcutta High Court held that the first part of Sub-rule (2) gives the Court the power to strike out the name of any party improperly joined, and the second for the addition of a party. The learned Judges pointed out the significance of the word "joined" and "added" and omission of the word "substituted" in the wording of Sub-rule (2). The omission to use the word "substitute" in Order I, Rule 10(2), in the opinion of the learned Judges, was deliberate. The learned Judges pointed out the significance of the word "joined" and "added" and omission of the word "substituted" in the wording of Sub-rule (2). The omission to use the word "substitute" in Order I, Rule 10(2), in the opinion of the learned Judges, was deliberate. They held that the case of mere substitution is distnict from addition and is not covered by Sub-rule (2) of Rule 10 of Order I of the Code. We are in respectful agreement with this view and find that Sub-rule (2) of Rule 10 of Order I enables the Court to join a person as a party who ought to have been joined. This provision was not meant to be applied to a case of substitution of one party on the death of his predecessor-in-interest. There would be no power in a Court under Order I, Rule 10, CPC to substitute the heirs and legal representatives of the deceased Defendant. In the case of abatement taking place, what is necessary further is its setting aside. Under Order I, Rule 10 CPC the Court may add or substract a party. It cannot set aside the abatement and substitute the heirs of the deceased. 15. The settled rule of interpretation of statute is that if there is a specific provision dealing with a particular matter, the same will override the general. The provision is said to be specific when it is precise or exact in respect of fulfilment of a particular object. 16. In Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, AIR 1966 SC 828 , and in Commissioner of Income Tax, Patiala and Others Vs. Shahzada Nand and Sons and Others, AIR 1966 SC 1342 , the Supreme Court has held that if a special provision is made on a certain matter, that matter is excluded from the general provision. 17. What will follow from the above principle is that since there is a specific provision dealing with the substitution, abatement and setting aside the abatement in Order XXII, Rule 4, that would exclude the general provision of addition of party made in Order I, Rule 10(2) of the Code of Civil Procedure. 18. Recently, in Bhagwan Swamp v. Mool Chand AIR 1983 SC 355 , the Supreme Court was called upon to consider the scope of Order I, Rule 10 and Order XXII, Rule 4 of the Cods of Civil Procedure. 18. Recently, in Bhagwan Swamp v. Mool Chand AIR 1983 SC 355 , the Supreme Court was called upon to consider the scope of Order I, Rule 10 and Order XXII, Rule 4 of the Cods of Civil Procedure. In that case the heirs of the deceased Respondent No. I who had not been impleaded within time by the Appellant of the appeal before the Supreme Court, had applied under Order I, Rule 10 for being brought on the record. The Supreme Court held that as the Appellant had not moved the High Court within time by filing an application under Order XXII, Rule 4, the limitation for taking action under the said provision having since expired, the consequence could not be circumvented by resort to the provision of Order I, Rule 10. In the Supreme Court, the learned Judges constituting the Bench gave two judgments. However, both of them were agreed to the result of the appeal. Dealing with the argument about the scope of Order XXII, Rule 4 being specific Hon'ble D.A. Desai, J. observed: There is some force in the contention that when a specific provision is made as provided in Order XXII, Rule 4, resort to the general provision like Order I, Rule 10 may not be appropriate. 19. As the heirs and legal representatives of the deceased Respondent No. 1 had themselves applied for being brought on record, the learned Judges held, on the facts of that case, that they could be brought on record in place of the deceased. 20. Hon'ble A.N. Sen, J. approved the view of the High Court with regard to non-maintainability of the application under Order I, Rule 10 CPC by observing: The application made by the heirs of deceased for substitution under Order 1, Rule 10 CPC is indeed misconceived and has been rightly held to be so by the High Court. 21. Both the learned Judges appear to be of the same opinion that the substitution application moved by the Appellant to bring on record the heirs of the deceased Respondent No. 1 in the background of facts of that case was entitled to be allowed. On that basis, the abatement was set aside and the substitution application was allowed. 22. 21. Both the learned Judges appear to be of the same opinion that the substitution application moved by the Appellant to bring on record the heirs of the deceased Respondent No. 1 in the background of facts of that case was entitled to be allowed. On that basis, the abatement was set aside and the substitution application was allowed. 22. It is incorrect to argue, as was done by the learned Counsel appearing for the Respondent No. 1, that the Supreme Court had allowed the application under Order I, Rule 10(2) of the CPC and had directed for substitution despite that the appeal had abated. The Supreme Court did not do anything of this sort. Both the learned Judges were of the same opinion that the application under Order I, Rule 10(2) was not maintainable. They took note of the fact of moving of the application by the heirs for being impleaded or added as a party. While dealing with the prayer for setting aside the abatement made by the Appellant of that case, they did not add the heirs under Order I, Rule 10(2) of the Code of Civil Procedure. 23. Great emphasis was laid by the learned Counsel for Respondent No. 1 that as Hon. D.A. Desai, J. had allowed the application of the heirs and legal representative made under Order I, Rule 10(2) of the Code of Civil Procedure, the learned Judge should be deemed to have accepted that the said provision was applicable even to a case where abatement had taken place. He submitted that to this part of the judgment, Hon. A.N. Sen, J. bad concurred. This does not appear to us to be correct reading of the decision of the Supreme Court. They did make a mention of the application made by the heirs and legal representatives under Order I, Rule 10(2) of the Code of Civil Procedure, but only for a limited purpose. They allowed the substitution application made by the Appellant, and in allowing the same this fact had been noted. Obvious it is that if the Appellant would not have applied under Order XXII, Rules 4 and 9 of the Code of Civil Procedure, and further would have not prayed for condonation of delay, the heirs of the deceased could not be brought on record, simply on the basis of their application. 24. Obvious it is that if the Appellant would not have applied under Order XXII, Rules 4 and 9 of the Code of Civil Procedure, and further would have not prayed for condonation of delay, the heirs of the deceased could not be brought on record, simply on the basis of their application. 24. The question whether the heirs of a deceased could be brought on record by a Court in exercise of its inherent power came to be considered by the Supreme Court in Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, AIR 1963 SC 1901 . The Supreme Court held: When the legal representatives of the deceased Appellant and the surviving Appellants were negligent in not taking steps for substitution, the Court is not to exercise its discretion in favour of such a party. The discretionary power cannot be exercised to nullify the effect of the abatement of the apppeal so far as Kedar Nath is concerned...." 106-Rep. 25. Order I, Rule 10(2) of the CPC is also discretionary and preserves the power of the Court to add a person as a party in cases where interest of justice may require it to do so. If such a power is permitted to be exercised to substitute the heirs of the deceased Defendant, that will necessarily result in nullifying the consequence of abatement in which the heirs were not brought on record and no explanation had been offered for not doing so. This can be done only in accordance with the provision prescribed in Order XXII, Rules 4 and 9 of the CPC and Section 5 of the Limitation Act. 26. In Union of India (UOI) Vs. Ram Charan and Others, AIR 1964 SC 215 the Supreme Court held that the Court is not to invoke its inherent powers u/s 151 of the CPC for the purposes of impleading the legal representatives of a deceased Respondent, if the suit had abated on account of the Appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and applying for the setting aside of the abatement within time. 27. In Mohan Raj Vs. 27. In Mohan Raj Vs. Surendra Kumar Taparia and Others, AIR 1969 SC 677 the Supreme Court was called upon to consider the question whether a person not impleaded as a party in an election petition could be added by the Court by resort to Order I, Rule 10(2) Code of Civil Procedure. The Supreme Court negatived the argument by holding that when the Act made a person a necessary party and provided that the petition would be dismissed if such a party was not joined, the power of addition of party by applying Order VI, Rule 17, and not Order I, Rule 10 of the Code of Civil Procedure, could not be possible. 28. In Khalil Ahmad v. Additional District Judge Gorakhpur (supra), the various aspects relevant to decide the question of applicability of Order I, Rule 10(2) of the CPC to a case where abatement has taken place, were not brought to the notice of the learned Judges. Being of the opinion that the addition of parties under Order I, Rule 10 of the CPC is one of discretion, the Court held that this provision could be applied even to a case where abatement has taken place and the heirs of the deceased can be brought on the record. It is true that Order 1, Rule 10(2) is a discretionary provision, but that does not mean that the Court is free to add a person as a party in any case it likes to do so. A Court entrusted with a discretion is required to direct itself properly in law. It must call its own attention to the matters which it is bound to consider and exclude from its consideration matters which are irrelevant. Order I, Rule 10(2) reads as under: The Court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 29. 29. The aforesaid provision confers power on the Court to strike out a party from the array if he is found to be unnecessary or improperly joined whereas it can direct for addition of a party whose presence is thought necessary by the Court in order to effectually and completely decide the questions involved in the suit. 30. Razia Begum Vs. Sahebzadi Anwar Begum and Others, AIR 1958 SC 886 was not a case where abatement had taken place because of the heirs of the deceased Defendant had not been brought on the record. In that case, the Court allowed the addition of a party as one of the Defendants on the finding that the same was likely to be helpful for finally adjudicating upon the rights of the parties. This case arose out of a suit for declaration that the Plaintiff was the legally wedded wife of the Defendant. The Court held that i the result of a declaratory decree on the question of status would affect not only the parties only before the Court, but generations to come, and in view of that consideration, the application made under Order I, Rule 10(2) was allowed. A decision is an authority what it decides. The controversy in the said case was different. While dealing with the power of the Court in a revision u/s 115 of the Code of Civil Procedure, the Supreme Court remarked: that the question of addition of parties under Rule 10 of Order 1 of the CPC is generally not one of initial jurisdiction of the Court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. 31. For the view that Order I, Rule 10(2) does not apply to such a case as the present, we find support from the decisions reported in V.N. Bandekar v. M/s. Janardan G. Thaly and Co. AIR 1979 Goa 8 , state Tracing Corporation of India Ltd. v. V.K.V. Vaidyalingam, (supra), Sisir Kumar Tarafdar v. Manindra Kumar Biswas (supra) and Jamuna Rai and Others Vs. Chandradip Rai and Others, AIR 1961 Patna 178 . 32. AIR 1979 Goa 8 , state Tracing Corporation of India Ltd. v. V.K.V. Vaidyalingam, (supra), Sisir Kumar Tarafdar v. Manindra Kumar Biswas (supra) and Jamuna Rai and Others Vs. Chandradip Rai and Others, AIR 1961 Patna 178 . 32. Our attention was drawn to a case of the Privy Council reported in AIR 1940 215 (Privy Council) where although the application for bringing on the record the heirs and legal representatives of the deceased Defendant had not been made by the Plaintiff, but still the Court allowed addition of those heirs under Sub-rule (2) of Rule 10 of Order I. This case is clearly distinguishable and does not lend any assistance to the argument of the opposite party No. 1. In that case, a Mohammedan brought a suit against his co-heirs for administration. One of the Defendants, who had the same interest and was in the same position as other Plaintiffs, died and no application was made by the Plaintiff to bring his heirs on the record. It was held that the suit for administration did not come to an end by reason of abatement as against the deceased Defendant, because the learned Judges said that it not uncommonly happens, in a suit for administration, that for one reason or another a particular interest is not represented before decree, but is either provided for by the decree, or is asserted at a later stage under the decree, or is given effect by a party being permitted to attend certain accounts and enquiries so as to be bound by the result. 33. Here in this case we are not concerned with an administration suit. In that suit, no abatement had taken place. To such a suit Order I, Rule 10(2) may be applied. It is since not possible exhaustively to lay down a list of those suits where abatement does take place and to which Order I, Rule 10(2) could be applied, despite death of one of the parties, we refrain ourselves from doing so. Broadly speaking, in the suits where abatement does not take place. Order I, Rule 10(2) can be applied if interest of justice requires. Order XXII, Rule 12 of the CPC provides that nothing in Rules 2, 4 and 8 shall apply to proceedings in execution of a decree or order. On account of this Rule, there is no question of execution proceedings abating. Order I, Rule 10(2) can be applied if interest of justice requires. Order XXII, Rule 12 of the CPC provides that nothing in Rules 2, 4 and 8 shall apply to proceedings in execution of a decree or order. On account of this Rule, there is no question of execution proceedings abating. The Allahabad High Court has further amended this Rule by providing that Rules 3, 4 and 8 would not apply to proceedings in the original Courts taken after the passing of the preliminary decree, where a final decree also requires to be passed. To such a case also, one can imagine that Order I, Rule 10(2) can be applied. We, however, guard ourselves by saying that these observations made by us should not be read as applicable to appeals preferred against the orders passed In the proceedings referred to above. 34. For what we have said above, we find it impossible to hold that resort to Order I, Rule 10(2) can be had by a party when the suit has abated on account of his failure to bring the legal representatives of the deceased on the record and when the application for setting aside the abatement is not allowed. 35. Nothing was shown to us on the merits of the case which could establish that the learned Munsif erred in holding that the application for substitution was filed beyond time and sufficient cause for setting aside the abatement had not been made out. The finding given on the application u/s 5 of the Limitation Act against the Respondent No. 2 also could not be assailed. 36. Consequently, the revision is allowed. The judgment and order of the Court below dated 31st January, 1978 is set aside, and the suit is declared to have abated as against the deceased Defendant No. 1.