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Andhra High Court · body

2005 DIGILAW 711 (AP)

K. Ramanjaneyulu v. S. Abdul Rahiman

2005-08-04

P.S.NARAYANA

body2005
( 1 ) THE unsuccessful petitioner-plaintiff in i. A. No. 150 of 2005 in O. S. No. 44 of 2000 on the file of the IV Additionaljunior Civil Judge, kadapa had preferred the present Civil Revision Petition. ( 2 ) THE revision petitioner moved an application aforesaid under Order 1 Rule 10 of Civil Procedure Code (hereinafter referred in short as code for the purpose of convenience) to implead one K. Pradeep kumar-R-3 herein who is incidentally one of the legal representatives of Sri K. Subba rao, the 2nd defendant in the suit. It is stated that the petitioner-plaintiff filed the suit praying for the reliefs of declaration and mandatory injunction. The 1st defendant alone filed the written statement. It is further stated that though the 2nd defendant died the same was not informed and hence the legal representatives could not be brought on record. It is further stated that the present proposed party i. e. Respondent No. 3 in the c. R. P. K. Pradeep Kumar is representing the legal representatives of deceased Subba rao as General Power of Attorney holder and the said power of attorney was given on 30-11-2001. In view of the same, the said party is to be brought on record. ( 3 ) THIS Court ordered notice before admission on 15-7-2005 and Sri Venkatrami reddy Kowuri entered appearance for respondent No. 1 and Sri Ramesh entered appearance on behalf of the proposed party shown as Respondent No. 3 in the present civil Revision Petition. ( 4 ) THE 1st respondent-1st defendant filed counter opposing the said application. The proposed party was called absent and set ex-parte before the original Court. The 1st respondent had taken a specific stand that the provisions of Order 1 Rule 10 of the Code cannot be invoked inasmuch as the legal representatives of the deceased 2nd defendant were not brought on record in accordance with provisions of Order 22 Rules 3 and 4 of the Code. The said application was dismissed by the learned Judge. Hence this Civil revision Petition. The said application was dismissed by the learned Judge. Hence this Civil revision Petition. ( 5 ) SRI T. V. S. Kumar, the learned counsel representing the revision petitioner would contend that the deceased Subba Rao being a co-owner and co-sharer Respondent No. 3 is having interest in the subject matter of the suit and hence in the said capacity, he can be brought on record as a person having interest in the subject matter of the suit. The learned counsel also would contend that merely because an application to bring on record the legal representatives had not been filed, it cannot be said that a person having interest in the property cannot be brought on record. The learned counsel also would contend that incidentally the proposed party-Respondent no. 3 also is the power of attorney holder of the other heirs of the deceased Subba Rao. The learned counsel also pointed out that in fact proposed party has no objection to come on record and when the proposed party was about to engage a counsel in undue haste the learned Judge made the impugned order. The learned counsel also placed reliance on certain decisions. ( 6 ) SRI Ramesh the learned counsel who entered appearance on behalf of the proposed party-Respondent No. 3 has stated that the proposed party has no objection to come on record. The learned counsel also explains that inasmuch as he is representing yet another co-owner such party having interest in the property to be brought on record being a necessary party for effective and proper adjudication of matters in controversy. ( 7 ) PER contra while opposing, Sri venkatrami Reddy Kovvuri, would maintain that party cannot circumvent the provisions of Order 22 Rules 3 and 4 of the Code by invoking Order 1 Rule 10 of the Code. The learned counsel also distinguished certain decisions on the ground that in certain cases to avoid multiplicity of litigation in view of the fact that the question of plaintiff being Dominus litus may not be applicable, like partition actions in the interest of justice, such parties can be impleaded. The counsel would also maintain that it is a suit for declaration and mandatory injunction and hence, the said principles cannot be extended to a case of this nature. The learned counsel also placed reliance on certain decisions in this regard. ( 8 ) HEARD the learned counsel. The counsel would also maintain that it is a suit for declaration and mandatory injunction and hence, the said principles cannot be extended to a case of this nature. The learned counsel also placed reliance on certain decisions in this regard. ( 8 ) HEARD the learned counsel. ( 9 ) AT the outset, it may be stated that it is one thing to say the party to be brought on record as legal representative of one of the deceased parties on record already. It is yet another thing to say that such a party who may be incidentally the legal representative also may be having interest in the subject matter of the litigation. It is needless to observe that it would depend upon the facts and circumstances of a particular given case. An attempt is made before this Court, to show that the proposed party is having interest in the property and proposed party also intends to come on record. It is pertinent to note that the proposed party as such, and as general power of attorney holder representing other heirs had not moved any application. It is the plaintiff who filed the application to bring him on record without invoking the provisions of order 22 Rule 3 and 4 of the Code. Evidently this was thought of to circumvent limitation to bring on record legal representatives of the deceased party. ( 10 ) IN Bhagwan Swaroop v. Mool Chand while dealing with this aspect Desai, J. observed in paras 3, 4 and 5 as hereunder: "a Division Bench of the Rajasthan High court held that the preliminary decree was one whole and indivisible and as shares have been defined by the preliminary decree, if the appeal is proceeded with in the absence of the heir and legal representatives of the deceased respondent No. 1 Ganesh narain Mathur, it would result in inconsistent decrees and therefore, the appeal abates as a whole. The High court rejected the application of the legal representatives and (sic. of) deceased respondent No. 1 Ganesh narain Mathur moved under O. 1, R. 14, c. P. C. observing that the provisions of o. 1, R. 10 cannot override specific provisions of O. 22. As the limitation for taking action under O. 22 having long since expired, the consequence cannot be circumvented by resort to the provisions of O. 1, R. 10. As the limitation for taking action under O. 22 having long since expired, the consequence cannot be circumvented by resort to the provisions of O. 1, R. 10. So saying the high Court rejected the application of the heirs and legal representatives of deceased respondent No. 1. As a consequence, the High Court disposed of the appeal as abated as a whole. It is against this orderthat the present appeal is filed. It is true that it was incumbent upon the appellant to implead the heirs and legal representatives of deceased respondent No. 1 in time. It is equally true that the appellants were negligent in moving the proper application. We would not question the finding of the high Court that appellant Nos. 2, 3 and 4 knew about the death of the deceased respondent No. 1. This being a suit for partition of joint family property, parties are closely interrelated and it is reasonable to believe that at least some of the appellants must have attended the funeral of deceased respondent no. 1, as contended on behalf of the contesting respondent No. 2. There is some force in the contention that when a specific provision is made as provided in O. 22, R. 4, a resort to the general provision like O. 1, R. 10 may not be appropriate. But the laws of procedure are devised for advancing justice and not impeding the same. In Sangram singh v. Election Tribunal, Kotah, (1955) 2 SCR 1 : ( AIR 1955 SC 425 ), this Court observed that 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. This was reaffirmed in Kalipar Das v. Bimal krishna Sen, (1983) 1 SCC 14 . In a suit for partition, the position of plaintiffs and defendants can be interchangeable. It is that each adopts the same position with the other parties. Other features which must be noticed are that the appeal was filed somewhere in 1972. It had not come up for hearing and the matter came on Board only upon the application of the second respondent intimating to the Court that the 1st respondent had died way back and as his heirs and legal representatives having not been substituted, the appeal has abated. Wheels started moving thereafter. Appellants moved an application for substitution. It had not come up for hearing and the matter came on Board only upon the application of the second respondent intimating to the Court that the 1st respondent had died way back and as his heirs and legal representatives having not been substituted, the appeal has abated. Wheels started moving thereafter. Appellants moved an application for substitution. The matter did not end there. Heirs of deceased respondent no. 1 then moved an application for being brought on record. If the application had been granted, the appeal could have been disposed of in the presence of all the parties. The difficulty High Court experienced in granting the application disclosed with great respect, a hypertechnical approach which if carried to end may result in miscarriage of justice. Who could have made the most serious grievance about the failure of the appellants to substitute the heirs and legal representatives of deceased respondent No. 1. Obviously the heirs of deceased respondent No. 1 were the persons vitally interested in the outcome of the appeal. They could have contended that the appeal against them has abated and their share has become unassailable. That is not their case. They on the contrary, want to be impleaded and substituted as heirs and legal representatives of deceased respondent No. 1. They had absolutely no grievance about the delay in bringing them on record. It is the second respondent who is fighting both the appellants and the 1st respondent who wants to derive a technical advantage by this procedural lapse. If the trend is to encourage fair play in action in administrative law, it must all the more inhere in judicial approach, Such applications 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. Undoubtedly, justice according (to) law; law to be administered to advance justice. ( 11 ) IN a separate judgment Amarindernath sen, J. observed as follows: "civil Procedure Code requires that in the event of death of a particular party, heirs and legal representatives of the deceased have to be brought on record within a particular period, provided the cause of action survives. ( 11 ) IN a separate judgment Amarindernath sen, J. observed as follows: "civil Procedure Code requires that in the event of death of a particular party, heirs and legal representatives of the deceased have to be brought on record within a particular period, provided the cause of action survives. If the legal representatives are not brought on record within the stipulated period, certain consequences follow and the action abates either wholly or partially depending on the facts and circumstances of a particular case. The code further provides that an application may be made for setting aside the abatement within a stipulated period. It is now well settled that an abatement can be set aside at any time even beyond the period prescribed for making an application for setting aside the abatement, if sufficient cause is shown explaining the delay in the making of the application. If, irrespective of the provisions of the Code and the merits of the case, abatements are to be set aside as a matter of course merely on the ground that abatement is only a consequence of non-compliance of law of procedure and substantial justice is denied to the parties, the result may really amount to a denial of justice and in an indefinite prolongation of a litigation. The provisions fixing a particular time for making an application for bringing legal representatives on record with the consequence of the suit or appeal abating if no application is made within time, have been enacted for expeditious disposal of cases in the interest of proper administration of justice. It is further to be borne in mind that when a suit or an appeal abates, a very valuable right accrues to the other party and such a right is not to be ignored or interfered with lightly in the name of doing substantial justice to the party, as depriving a party of a lawful right created in the interest of administration of justice in the absence of good grounds results in injustice to the party concerned. For doing justice to the parties, the Courts have consistently held that whenever sufficient cause is shown by a party at default in making an application for substitution, abatement will have to be set aside as the good cause shown for explaining the delay in making the application is sufficient justification, to deprive the other party of the right that may accrue to the other party as a result of the abatement of the suit or appeal. The Courts have also consistently ruled that laches or negligence furnish no proper grounds for setting aside the abatement. In such cases, a party guilty of negligence or laches must bear the consequences of his laches and negligence and must suffer. In appropriate cases, taking into consideration all the facts and circumstances of a case, the Court may set aside the abatement, even if there be slight negligence or minor laches in not making an application within the time provided an overall picture of the entire case, requires such course for furthering the cause of justice. When negligence and laches are established on the part of the party who seeks to set aside the abatement, the application of such a party should be entertained only in the rarest of cases for furthering the ends of justice only and on proper terms. In the present case, the appeal has been filed against a preliminary decree in a partition suit. A partition suit stands on a peculiar footing. In a partition suit any of the parties can claim transposition from the category of the defendant to the category of the plaintiff and vice- versa. With the passing of the preliminary decree, shares of the parties are declared and rights of the parties pending the passing of the final decree are to an extent determined. As a result of the passing of the preliminary decree, certain rights do accrue to the parties subject to the result of the appeal filed. There is no doubt that there has been some amount of negligence on the part of the appellant in not making the application for substitution within time. The appellant had full knowledge of the death of the respondent who was a near relation of the appellant. There is no doubt that there has been some amount of negligence on the part of the appellant in not making the application for substitution within time. The appellant had full knowledge of the death of the respondent who was a near relation of the appellant. The application made by the heirs of the deceased for substitution under O. 1, r. 10 of the Code of Civil Procedure is indeed misconceived and has been rightly held to be so by the High Court. To my mind it cannot be said that the high Court had acted improperly or illegally in the facts and circumstances of this case in refusing to set aside the abatement. I have my doubts as to whether it is proper for this Court to interfere with such orders passed by the High Court. My learned brother is, however of the view that in the facts and circumstances of this case, the orders of the High Court refusing to set aside the abatement and to bring the legal representatives on record should be set aside and the appeal should be heard on merits by the High Court. In the peculiar facts and circumstances of this case, bearing in mind that the appeal is from a preliminary decree in a partition suit in which the heirs and legal representatives of the deceased respondent had also made an application, though misconceived, for being substituted and brought on record, i do not propose to press my doubts to the point of dissent. Hearing of the appeal on merits, in the instant case, cannot cause any irreparable prejudice to the parties though there can be no doubt that partition proceedings will have to be unnecessarily prolonged. ( 12 ) IN Bathula Venkata Perayya v. Ganuguntla Adilakshamma the learned udqe observed at paras 4 and 7 as follows:"thus, as contended by Mr. Vidyasagar the applications filed by the Plaintiff as well as the proposed legal representatives are beyond 90 days from the date of the death of the 4th defendant. The legal representatives of a deceased plaintiff or defendant can be brought on record within 90 days. If the legal representatives are not brought on record within the prescribed time, the suit or appeal, as the case may be, would abate in so far as the deceased defendant or respondent is concerned. The legal representatives of a deceased plaintiff or defendant can be brought on record within 90 days. If the legal representatives are not brought on record within the prescribed time, the suit or appeal, as the case may be, would abate in so far as the deceased defendant or respondent is concerned. However, they can also be brought on record after the expiry of 90 days if there are sufficient reasons to condone the delay in filing the applications. Rules 3 and 4 of Order 22 of the Code of Civil procedure do not specify as to who should file applications for bringing the legal representatives of the deceased plaintiff or defendant on record; but it admits of no doubt that it is the plaintiff or the appellant who would stand to lose if the legal representatives for the deceased defendant or respondent are not brought on record. Hence, normally it is the plaintiff or the appellant, as the case may be, who has to take steps to bring the legal representatives of the deceased party on record within the prescribed time. Otherwise, the suit or appeal, in so far as the deceased defendant or respondent is concerned, would abate. The intendment of these provisions of the Code of Civil Procedure is to protect the interests of the proposed legal representatives of a deceased party. The legal representatives are entitled to continue or raise such pleas which were available to the deceased party on whose behalf they are made parties. But no where in the code any prohibition is made for the proposed legal representatives to come on record even subsequent to the expiry of the period of 90 days provided under order22, of the Code of Civil Procedure. The Court may not exercise its discretion in favour of the plaintiff or the appellant to condone the delay in setting aside the abatement and to bring the legal representatives on record except in appropriate cases. Notwithstanding the fact that a plaintiff or appellant omits or fails to implead the proposed legal representatives as parties, the legal representatives, in my considered view are not barred from coming on record by themselves if they want to contest the suit or appeal on behalf of the deceased party. This view of mine finds support in the decisions of the Madras high Court in Kuppuswami Chetti v. Singaravelu Chetty and Ramakrishna v. Narasimha. This view of mine finds support in the decisions of the Madras high Court in Kuppuswami Chetti v. Singaravelu Chetty and Ramakrishna v. Narasimha. There is another weighty reason for adding the proposed legal representatives as supplemental defendants in the instant case. The suit in the present case is one for partition. Hence, the cause of action survives to the plaintiff to file a fresh suit against the defendants as well as the supplemental defendants who are the legal representatives of the deceased 4th defendant. Indisputably the proposed defendants can be brought on record under Order 1, Rule 10 of the Code of civil Procedure as they are necessary and proper parties without whose presence there can be no effective and complete adjudication of the questions at issue. It has been held by me in c. R. P. No. 888 of 1969, dated 26th february, 1970 that the intendment of order 1, Rule 10, Civil Procedure Code and that of Order 22, Rules 3 and 4, civil Procedure Code being different and distinct and to meet different situations, the omission or failure to bring the proposed legal representatives on record underorder22 will not prevent them from being brought on record under order 1, Rule 10 Civil procedure Code if they happen to be necessary and proper parties to the suit. Judged from any angle, I have no hesitation to hold that the application of the proposed legal representatives though filed long after the expiry of 90 days has been rightly allowed although the petitions filed by the plaintiff have been dismissed. In the circumstances, I must hold there is no error of law or material irregularity in the exercise of the jurisdiction of the lower Court in the impugned orders, justifying my interference in C. R. P. No. 257 of 1969". ( 13 ) RELIANCE was also placed in Sri srinivas Kumar Mowle v. Chandra Shekhar mowle, wherein the learned Judge observed, that in a suit for partition where a preliminary decree was passed the legal representatives of deceased defendant having share in joint family property are necessary and proper parties and their coming on record by filing an application under Order 1 Rule 10 of the code in spite of failure to bring them on record under Order 22 Rule 4 of the Code cannot be prevented. ( 14 ) THE Division bench of this Court in morasa Anjaiah v. Kondragunta venkateswarlu held when one of the defendants died in a pending suit and the plaintiff had not taken steps under Order 22 of the Code to bring the legal representatives of the deceased defendant in time, he is not entitled to file an application under Order 1 rule 10 of the Code to implead the legal representatives of the deceased. The Division bench also had dealt with in detail when an application under Order 1 Rule 10 of the code can be filed ( 15 ) STRONG reliance was placed on sriramula Ramachandram v. Sriramula boodhamma wherein the learned Judge of this Court while dealing with Order 1 rule 10 (2) and Order 22 Rules 4 and 9 and section 151 of the Code held that where the second plaintiff filed an application under order 22 Rule 4 of the Code for bringing the legal representatives of the deceased 1st defendant and the said application was allowed but the suit was adjourned from time to time, but no steps were taken for amendment and the suit against 1sl defendant was dismissed as abated and subsequently, the other defendants were set ex-parte and preliminary decree was passed and application for appointment of Commissioner was madp and at that stage the petitioners filed an application for adding them as parties to avoid multiplicity of the proceedings and the said application was dismissed and questioning the same the C. R. P. was preferred and in the peculiar facts and circumstances. The petitioners can rely upon inherent powers under Section 151 of the code and accordingly the order of the Court below was set aside. ( 16 ) STRONG reliance was placed on a decision of a learned Judge of this Court in a. Ramloo v. G. Sreeramachandra Murthy, wherein it was held that when the legal representatives of the deceased party were not brought on record under Rule 3 of order 22 of the Code and in the result the suit got abated, they cannot subsequently be brought on record under the provisions of order 1 Rule 10 of the Code. ( 17 ) IT is no doubt true that no hard and fast rule can be laid down in this regard that under no circumstances the parties having interest in the subject matter of the suit can be brought on record, merely, because such parties were not brought on record as legal representatives of one of the deceased parties who had been already on record. No doubt this would depend upon the facts and circumstances of a particular given case. If a party is having interest in the subject matter of the suit who may be incidentally the legal representative of one of the deceased parties, if he intends to come on record to safeguard his interest in the subject matter of the litigation the Court may have to consider such an application. It is also pertinent to note that to avoid multiplicity of litigation in the interests of justice incertain actions parties having interest in subject matter of litigation can be permitted to come on record in the interest of justice to effectively adjudicate the questions in controversy and to dispose of the matter. But, this principle cannot be extended to all types of cases. It would depend upon on facts and circumstances of a particular given case. Be that as it may, this is a case where reliefs prayed for are declaration and mandatory injunction, and the 2nd defendant is no more. There is some factual controversy about the knowledge of the death and the legal representatives not being brought on record within the time. This court is not inclined to go into these aspects at this stage. In view of the fact that the plaintiff moved the present application to bring one of the legal representatives incidentally a general power of attorney holder representing other legal representatives of the deceased Subba Rao, the impugned order cannot be found fault in any way. However, it is made clear that if the proposed party claiming independent interest in the subject matter of the litigation intends to come on record by moving appropriate application, the learned Judge is at liberty to consider the same depending upon the merits and demerits while disposing of such application if any. Except making this observation, no other relief can be granted in the present Civil Revision Petition. ( 18 ) ACCORDINGLY, the Civil Revision Petition shall stand dismissed with the above observation. Except making this observation, no other relief can be granted in the present Civil Revision Petition. ( 18 ) ACCORDINGLY, the Civil Revision Petition shall stand dismissed with the above observation. No order as to costs.