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Madhya Pradesh High Court · body

2007 DIGILAW 22 (MP)

AMAR SINGH v. POORAN

2007-01-09

ABHAY M.NAIK

body2007
Judgment ( 1. ) RESPONDENT No. 1 instituted a suit for restoration of possession and mesne profits against one Amrit who is stated to have died on 5-2-90 his widow Sarju bai was substituted in his place who also died issueless on 16-5-93. ( 2. ) ON 25-7-96 an application under Order 22 Rule 3 of Civil procedure Code was submitted. Another application under Order 22 Rule 4 of civil Procedure Code was submitted. Both these applications were decided by the learned Trial Judge on 24-2-01. Consequently, the suit filed against Amrit was declared to have abated on account of death of Sarju Bai in an issueless condition. Simultaneously, the learned Trial Judge directed the plaintiffs to implead Mahesh Kumar and Sriram, both minor sons of Amar Singh as defendants. The order of impleadment was not given effect to. The plaintiffs challenged the order of abatement against Sarju Bai in C. R. No. 934/01, wherein amar Singh, Sriram and Mukeksh Kumar were impleaded as defendants, as revealed in the order dated 8-7-02 marked as Annexure P-3. This court vide annexure P-3 dismissed C. R. No. 934/01 for want of prosecution. ( 3. ) SINCE the order of impleadment of present petitioners was not given effect to by the plaintiffs in time, the plaintiffs/respondents submitted an application under Order 6 Rule 17 of Civil Procedure Code seeking leave to incorporate the names of the present petitioners in the cause title of the plaint. This application was dismissed by the learned Trial Judge on 22-11-00 vide annexure P-4. Simultaneously, the learned Trial Judge observed that on account of failure on the part of the plaintiffs to implead Mahesh, Sriram, both sons of Amar Singh, in the plaint, the suit was liable to be dismissed. Accordingly, the same was dismissed vide Annexure P-4. ( 4. ) THE aforesaid order was challenged in Civil Misc. Appeal No. 1/2003 which was allowed by the learned First Additional District Judge, Raisen on 1st of April, 2005 vide Annexure P-5. The present writ petition is preferred against the same by the petitioners on the ground that the appeal before the lower Appellate Court was not maintainable and the plaintiffs having failed to implead the petitioners as defendants, the order impugned is not liable to be sustained. ( 5. The present writ petition is preferred against the same by the petitioners on the ground that the appeal before the lower Appellate Court was not maintainable and the plaintiffs having failed to implead the petitioners as defendants, the order impugned is not liable to be sustained. ( 5. ) AS regards the effect of untenability before the Lower Appellate court, it may be seen that the present writ petition is under Article 227 of the constitution of India and the provision envisaged thereunder is liable to be invoked in order to avoid failure of justice. Admittedly, as observed by the learned Trial Judge in Annexure P-4 the suit of the plaintiffs was declared as abated against Amrit and simultaneously by the same order on 24-2-01, the plaintiffs were directed to implead Mahesh, Sriram, both sons of Amar Singh as defendants. The act of impleadment in such manner is ministerial act and not judicial one. The Bombay High Court in the case of H. H. Darbar Alabhai vaisurbhai and others Vs. Bhura Bhaya and others, reported as AIR 1937 bombay 401 has observed as under:- "it is no part of the appellants duty to take the necessary steps to carry out the Courts order for the substitution of the names of the heirs of the deceased respondents who are properly served with notices, in order to correct the record of the Court in terms of its order. This is a ministerial function which the Courts establishment is charged to perform. If it is not performed or neglected, the fault will not lie with the appellant. " ( 6. ) THIS view has further been followed by Karnataka High Court in the case of Kariyappa and others Vs. Patel Rudrappa and others, reported as AIR 1976 Karnataka 29, wherein it has been observed as under:- "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 obtained the order or by the Office of the Court. 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 obtained 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 deceased. " ( 7. ) IN view of the aforesaid, the learned Trial Judge could not have dismissed the suit on account of failure to implead the present petitioner as defendants. As regards application under Order 6 Rule 17 of Civil Procedure code, the Karnataka High Court in the case of Kariyappa and others (supra) has held that substitution of the legal representatives of the deceased is made to give I effect to the order made by the Court under Order XXII. Rule 3 or 4. Order VI rule 17 or Order VI Rule 18 of the CPC has no application to such situation. ( 8. ) IN the light of the aforesaid, the order of learned Trial Judge dismissing the suit vide Annexure P-4 obviously was not sustainable in law. ( 9. ) AN important feature of this case is that the present petitioners were impleaded as respondents before this Court in C. R. No. 934/01. Thus, the suit property was being represented by them and impleadment of the petitioners in the civil revision would enure to the benefit of the plaintiffs even for the proceedings in the Trial Court. Thus, there was absolutely no legal justification in dismissing the suit for want of failure to implead the names of the petitioners in the cause title. Learned Trial Judge ought to have allowed the application for impleadment of the petitioners although captioned as under Order 6 Rule 17 of civil Procedure Code. ( 10. ) IT is true that the order of dismissal of application under Order 6 rule 17 of the Civil Procedure Code and consequent dismissal of the suit could not have been appealed against before the Lower Appellate Court. The order of lower Appellate Court on account of non-maintainability of appeal is, therefore, set aside, ( 11. ( 10. ) IT is true that the order of dismissal of application under Order 6 rule 17 of the Civil Procedure Code and consequent dismissal of the suit could not have been appealed against before the Lower Appellate Court. The order of lower Appellate Court on account of non-maintainability of appeal is, therefore, set aside, ( 11. ) HOWEVER, this Court cannot ignore the fact that the present writ petition is under Article 227 of the Constitution of India and if the Court below has misunderstood the scope of its jurisdiction, the constitutional power of the high Court under Article 227 can be invoked to set right such error and prevent gross injustice. The Supreme Court has recognized the power of the High Court to interfere with the orders of Subordinate Courts and Tribunals where (1)there is an error manifest and apparent on the face of the proceedings such as when it is based on clear misreading or utter disregard of the provisions of law, and (2) a grave injustice or gross failure of justice has occasioned thereby in the case of State of A. P. Vs. P. V. Hanumantha Rao (dead) through L. Rs. and another, reported as (2003) 10 SCC 121 . ( 12. ) THE Apex Court in the case of Estralla Rubber Vs. Dass Estate (P)Ltd. , reported as (2001) 8 SCC 97 , has held as under :- "the scope and ambit of exercise of power and jurisdiction by a high Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this Article involves a duty on the High court to keep Inferior Courts and Tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate Court or Tribunals. Exercise of this power and interfering with the orders of the Courts or Tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. " ( 13. Exercise of this power and interfering with the orders of the Courts or Tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. " ( 13. ) IN the preceding paragraph it has already been held that the learned trial Court could not have dismissed the suit after allowing the application for bringing the present petitioners on record as defendants for failure on the part of the plaintiffs to bring their names on record. This job being ministerial one could have been performed even by establishment of the Court itself and the dismissal of the suit for such failure was not warranted at all nor the same may be considered as justiceable. If such error is not corrected in exercise of power under Article 227 of the Constitution of India the Courts below may go on dismissing the suit for such failure without any legal authority. In this view of the matter it is expedient to exercise the power under Article 227 of the constitution of India in the present case and relieve the plaintiff from dismissal of his suit which has been directed by the learned Trial Judge in ignorance of the legal position. ( 14. ) SINCE this Court has found that the order contained in Annexure p-4 is not sustainable in law, the same is hereby set aside in exercise of powers under Article 227 of the Constitution of India, which are available to relieve the plaintiffs from irretrievable injustice. ( 15. ) IN the result, the order of the Trial Court contained in Annexure p-4 is also set aside. The application for amendment is hereby allowed. The plaintiffs are permitted to incorporate the names of the petitioners as defendants. The learned Trial Judge is directed to decide the suit thereafter on merits in accordance with law. Writ Petition allowed.