JUDGMENT : S.K. Mohanty, J. - Whether the legal representatives of one of the plaintiffs in a suit, can press into service Order 1, Rule 10(2) of the CPC for being added as parties after rejection of their application for substitution under Order 22, Rule 3 of the Code is the small but vexed question that falls for determination in this revision. 2. The suit out of which this revision arises was one for declaration of title, confirmation of possession, in the alternative recovery of possession and correction of record-of-rights. Plaintiff 1 is the son of plaintiff 2. On the death of plaintiff 2, his widow and two married daughters filed an application on 14-11-1985 for amendment of plaint and impletion as plaintiffs. The trial Court construed the application as one under Order 22, Rule 3 of the Code, for substitution and disallowed the same on 3-3-1986 as not having been made within time, sine plaintiff 2 died on 6-6-1984. Then the widow died. Thereafter on 23-3-1987 the two daughters filed another application under Order 1, Rule 0 of the Code for being impleaded in the suit. The same has been rejected by order dated 3-7-1967 which is impugned in this revision. 3. Counsel for the petitioners submitted that the application dated 14-11-1985 being not one by the surviving plaintiff was misconceived and did not affect the petitioners right to move the trial Court in an appropriate application under Order 1, Rule 10(2) of the Code and the presence of the petitioners before the trial Court being necessary for effectual and complete adjudication of all; the questions involved in the suit, the impugned order is liable to be set aside as the trial Court has failed to exercise jurisdiction vested in him by Saw. It is further submitted that plaintiff 1, who is one of the legal representatives of deceased plaintiff 2, being already on record, the suit by plaintiff 2 would not in law abate on his death and to avoid multiplicity of suits and possible conflicting decisions, the prayer of the two daughters for being impleaded in the suit should have been allowed by the trial Court. 4. Counsel for the petitioners placed reliance on the decisions in Khalil Ahmad and Others Vs. Additional District Judge, Gorakhpur and Others Badri Narain Prasad Sah and Others Vs. Bansidhar Prasad and Others, and Shyam Behari Lohar Vs. 4. Counsel for the petitioners placed reliance on the decisions in Khalil Ahmad and Others Vs. Additional District Judge, Gorakhpur and Others Badri Narain Prasad Sah and Others Vs. Bansidhar Prasad and Others, and Shyam Behari Lohar Vs. Ram Charan Lohar and Others, . In the Allahabad case the suit was one for redemption of mortgage. One of the mortgagees died during pendency of the suit. The mortgagor plaintiff applied under Order 22,Rule 4 of the Code beyond time for impleading the heirs of the deceased mortgagee defendant. The same was dismissed as time-barred. The trial Court however, impleaded the parties under Order 1, Rule 10(2) of the Code. Such order was confirmed by the Allahabad High Court with the following observation : The effect of Rules 4 and 9 of Order 22 is to abate the suit against the deceased and to take away the plaintiff's right to institute a fresh suit against his legal representatives. This, however does not mean that the suit cannot continue with the parties as they remain and are subsequently added under some other provision of law. Order 22, Rule 9, CPC affects the right of a party, but does not take away the right of the Court to bring on record any person whom the Court considers necessary for effectually adjudicating upon and settling of the questions involved in the suit. Sub-rule (7) of Rule 10 of Order 1 of the CPC deals with special cases where the impleadment of a party is necessary in order to enable the Court to effectually adjudicate the questions involved in the suit. If the necessary conditions exist, the Court has the power to direct the impleadment of any person. The inaction on the part of a plaintiff to implead or bring on record a person as defendant cannot affect the right of the Court to implead him as a party in the suit in exercise of its jurisdiction under Order 1, Rule 10(2), CPC. In the Patna case it has been held : It is a settled law that if some of the heirs of the deceased are already on the record, then the question of limitation does not arise in bringing the other remaining heirs on the record. In the Patna case it has been held : It is a settled law that if some of the heirs of the deceased are already on the record, then the question of limitation does not arise in bringing the other remaining heirs on the record. In the Calcutta decision it is held : Where, pending a suit by the plaintiff against his mother and others, the mother died and the plaintiff failed to apply under Order 22 to bring her legal representatives on record, the suit does not abate as the plaintiff himself is one of the legal representatives. An application under Order 1, Rule 10 of the Code is maintainable to add the other representatives as parties to the suit. 5. Counsel for the opp. party ( principal defendant) on the other hand, relied on the decision of this Court in the case of Abhiram v. Krushna Chandra 70 (1990) CLT 190 wherein it is held that on rejection of an application under Order 22, Rule 4, another application cannot be filed for the same purpose under Order 1, Rule 10. 6. In Khalil Ahmad (Allahabad case), reference has been made to the decision of the Supreme Court in Razia Begum Vs. Sahebzadi Anwar Begum and Others wherein it is stated : "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 ..." 7. In Badrinarayan (Patna case); referring to the decision of the Supreme Court in the case of Mahabir Prasad Vs. Jage Ram and Others it is stated that the question of abatement does not arise in a case where some of the heirs of the deceased are already on record. This decision of the Supreme Court has been referred to by a later decision of the same Court in the case of Harihar Prasad Singh and Others Vs. Balmiki Prasad Singh and Others wherein it is stated towards the end of paragraph 34, that the principle is of the representation of the estate of the deceased which need not be by all the legal representatives of the deceased. 8. Balmiki Prasad Singh and Others wherein it is stated towards the end of paragraph 34, that the principle is of the representation of the estate of the deceased which need not be by all the legal representatives of the deceased. 8. In Shyam Behari Lohar v. Ram Charan (Calcutta case) reference has been made to the aforesaid decision of the Supreme Court in the cases of Razia Begum and Mahabir Prasad. 9. In Abhiram v. Krushna Chandra (Orissa case), the suit was one for declaration that defendants were encroachers in respect of certain lands, injunction and possession. Defendant 1 died leaving behind three sons (defendants 2, 3 and 4), two daughters and his widow. The prayer for substitution of the widow and the two daughters in place of defendant 1 was rejected with the observation that the suit abated against defendant 1. This order was not assailed and on the other, hand, plaintiffs filed an application under Order 1, Rule 10 read with Section 151 of the Code to implead the widow and daughters of deceased defendant 1. Such prayer was allowed by the trial Court but negatived by this Court in exercise of revisional jurisdiction. For such decision reliance has been placed on Durga Charan Parida v. Basanta Kumar Parida : 40 (1974) CLT 885 wherein it has been held that the trial Court having dismissed the plaintiff's application for substitution it had no jurisdiction to entertain the application under Order 1, Rule 10 of the Code and to allow the same. In this case, the suit was one for partition. During its pendency two defendants died, but plaintiff did not take any steps to substitute their legal representatives and the suit therefore, abated against them. Subsequent application by the plaintiff for substitution accompanied by application for condonation of delay was rejected by the trial Court after coming to a finding that the plaintiff failed to explain the delay. Thereafter the plaintiff made another prayer under Order 1, Rule 10(2) and Section 151 of the Code to implead the legal representatives of the deceased defendants. Such prayer was allowed by the trial Court. In revision, Hon'ble B. K. Ray, J. held that the trial Court having dismissed the plaintiff's application for substitution, had no jurisdiction to entertain application under Order 1, Rule 10 and to allow the same. Such prayer was allowed by the trial Court. In revision, Hon'ble B. K. Ray, J. held that the trial Court having dismissed the plaintiff's application for substitution, had no jurisdiction to entertain application under Order 1, Rule 10 and to allow the same. Another decision of this Court by Hon'ble S. C. Mohapatra, J. in Pitambar Das v. Pradipta Sahoo in Civil Revision No. 664 of 1984 has also been relied upon. The view expressed by Hon'ble S. C. Mohapatra, J. in this case, as stated by Hon'ble A. Pasayat, J. in the case of Abhiram Naik, is to the effect that there can be no doubt that on rejection of an application under Order 22, Rule 3, another application cannot be filed for the same purpose under Order 1, Rule 10. It is stated by Hon'ble A. Pasayat, J. that the views expressed by the Allahabad and Calcutta High Courts have been dissented by Hon'ble S. C. Mohapatra, J. The decision of Hon'ble S. C. Mohapatra. J. does not seem to have been reported and was not placed at the hearing of this revision. 10. it may be noted here that in both the Orissa cases(Durgacharan and Abhiram ) one of the defendants had died and plaintiffs after being unsuccessful in their prayer under Order 22, CPC made second prayer under Order 1, Rule 10 of the Code. In the case of Durgacharan the suit having abated against the deceased defendant, a fresh suit was barred on the same cause of action and therefore, valuable right had accrued to the legal representatives of the deceased defendant against the plaintiff. In this background it was observed that it can never be the intention of the Code to take away the valuable right accrued to the legal representatives of the deceased defendant by taking resort to the provisions contained in Order 1, Rule 10 of the Code. In the case of Abhiram, there is no discussion in the judgment as to whether as a result of abatement of the suit as against the deceased defendant, a right had accrued to the legal representatives and whether the suit at all abated, since some of the legal representatives of the deceased defendant were already on record at the time of death of the defendant. In the circumstances, the aforesaid two decisions are to be confined to the facts of those cases and can have no universal application. Thus it cannot be said that under no circumstance after rejection of an application under Order 22 of the Code, another under Order 1, Rule 10(2) of the Code is not maintainable. 11. In the case at hand the plaintiffs claimed to be the joint owners and alleged that the principal defendant-1 denied plaintiff's title. Plaintiff-1 is the son of plaintiff-2 who died. Thus one of the legal representatives is already on record. The only legal representatives who are not on record are the two married daughters. To such facts, in my view, the decisions of the Supreme Court in the cases of Mahabir Prasad and Harihar Prasad squarely apply and there can be no question of abatement, if plaintiff-1 would have prayed for substitution of the other legal representatives of plaintiff-2 and after being unsuccessful he would have renewed his prayer in the garb of Order 1, Rule 10(2) of the Code for impleading those very persons, then the matter might have been different. In this case the prayer is not by either party to the suit, but by third parties being the legal representatives of one of the two co-plaintiffs. Moreover, no prejudice will be caused to the contesting defendant by allowing the petitioners to be impleaded in the suit, because they claim to be co- owners with plaintiff-1 so far as suit property is concerned and decree if passed In the suit in favour of ptaintlff-1 will ultimately enure to their benefit also. 12. As laid down in the case of Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, a Code of Procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties ; not a thing designed to trip people up. In Bhagwan Swaroop and Others Vs. Mool Chand and Others it is stated that if the trend is to encourage fairplay in action in administrative law, it must alt the more in there in judicial approach and such applications (for substitution and addition of parties) have to be approached with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. Applying the ratio in the case of Mahabir Prasad Vs. Applying the ratio in the case of Mahabir Prasad Vs. Jage Ram and Others, ), it cannot be said that the suit in the facts of the case had abated so far as the deceased plaintiff-2 is concerned. If the prayer of the two married daughters under Order 1, Rule 10(2) of the Code is disallowed by the Court, there is scope for another litigation concerning the subject-matter of the suit giving rise to the likelihood of conflict of decision. This principle is embodied to facilitate and subserve cause of justice and not to destruct it. The principle under lying Order 1, Rule 10 of the Code is to avoid multiplicity of suits and likelihood of conflict of decision. The provision for abatement affects the right of a party to the suit but not the right of the Court to bring on record any person whom the Court considers necessary for effectually adjudicating upon and settling of all the questions involved in the suit. In the facts of the case, there is nothing on record to show that the petitioners lacked bona fides. Addition of the two married daughters in the suit would effectually and completely adjudicate the dispute. Considered in above light, the learned Munsif has opted illegally and also with material irregularity in proceeding on the footing that the suit had abated and has failed to exercise jurisdiction vested in him by law, by rejecting the prayer under Order 1, Rule l0(2) of the Code. 13. In the result, the revision is allowed and the impugned order is set aside. The petitioners may be added as plaintiffs if they adopt the plaint and plaintiff-1 has no objection. Otherwise they may be added as defendants and opportunities may be afforded to them to file written statements. As there is some delay in preferring the application under Order 1, Rule 10, petitioners shall pay Rs. 200/- (rupees two hundred) as costs to the opposite party (principal defendant in the suit). Final Result : Allowed