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2013 DIGILAW 1560 (MAD)

D. Raja Prabakaran v. Suyambulingam (Died)

2013-04-05

R.S.RAMANATHAN

body2013
JUDGMENT 1. The third party, who purchased the property pending litigation and filed application to get themselves impleaded, are the revision petitioners in these revisions. 2. One Suyambulingam filed a suit in O.S.No.5 of 2006 on the file of Additional District and Sessions Court, Fast Track Court No.II, Tirunelveli, for declaration of his title to suit property against the respondents in these revisions. The revision petitioner-D.Raja Prabhakaran filed I.A.No.125 of 2009 in O.S.No.5 of 2006 to implead him as a second plaintiff in that suit and V.Muthiah filed I.A.No.126 of 2009 to implead himself as a second plaintiff in the same suit and both the proposed parties have stated in the affidavit that they have purchased different portions of suit property from the plaintiff. During the pendency of the said applications filed by the third parties, who are the revision petitioners herein, the plaintiff died. Therefore, the Court below dismissed the suit filed by the deceased/Suyambulingam as abated and consequently, dismissed I.A.Nos.125 and 126 of 2009 filed by the revision petitioners herein. Aggrieved by the same, the revision petitioner-D.Raja Prabhakaran filed C.R.P.(PD) (MD) No.232 of 2012 against the dismissal of I.A.No.125 of 2009. The revision petitioner-V.Muthiah filed C.R.P.(PD) (MD) No.233 of 2012 against the dismissal of I.A.No.126 of 2009 filed by him. Both the aforesaid revision petitioners filed C.R.P.(PD) (MD) No.234 of 2012 against the dismissal of the suit in O.S.No.5 of 2006 on the ground of abatement. 3. The deceased-Suyambulingam also filed O.S.No.386 of 2006 against the respondents and in that suit, the revision petitioner-V.Muthiah filed I.A.No.150 of 2010 to implead himself as second plaintiff after the death of the plaintiff Suyambulingam and therefore, O.S.No.386 of 2006 was dismissed as abated and challenging the same, the revision petitioner-V.Muthiah filed C.R.P.(NPD) (MD) No.2231 of 2011 and also filed C.R.P.(NPD) (MD) No.2230 of 2011 against the dismissal of I.A.No.150 of 2010. 4. Mr. 4. Mr. S.Meenakshi Sundaram, learned counsel for the revision petitioners submitted that the revision petitioners filed I.A.Nos.125 and 126 of 2009 in O.S.No.5 of 2006 during the life time of plaintiff in O.S.No.5 of 2006 and before they were disposed of, the plaintiff died and without allowing the revision petitioners to prosecute the plaint by adding them as legal representatives of the deceased plaintiff, the Court below dismissed the suit in O.S.No.5 of 2006 as abated and consequently, dismissed the applications filed in I.A.Nos.125 and 126 of 2009 and the revision petitioners having purchased the suit property from the plaintiff and they are interested in prosecuting the case and they are entitled to represent the estate of the deceased and therefore, they come under the definition of legal representative and therefore, the Court below erred in dismissing the suit on the ground that the suit was abated due to the death of the plaintiff, as no steps were taken to bring on the legal representatives of the deceased. He therefore, submitted that when the application to implead the revision petitioners as parties to the suit are pending, the Court below should not have dismissed the suit as abated and should not have dismissed the Interlocutory Applications filed by the revision petitioners on the ground that the suit has been dismissed as abated and therefore, the applications were also dismissed. He further submitted that the subsequent purchasers are entitled to get themselves impleaded in a suit, even though they purchased the property during the pendency of the litigation and that has been held by the Hon'ble Supreme Court in a Judgment reported in 2013 (2) CTC 104 (Thomson Press (India) Ltd. Vs. Nanak Builders & Investors P. Ltd. & others) and therefore, the orders of the Court below are liable to be set aside. 5. He further submitted that in respect of C.R.P.(NPD) (MD) Nos.2230 and 2231 of 2011, the application in I.A.No.150 of 2010 was filed after the death of the plaintiff and without giving opportunity to the revision petitioner in C.R.P.(NPD) (MD) Nos.2230 and 2231 of 2011, the Court below dismissed the suit as abated and the application in I.A.No.150 of 2010 was filed before the dismissal of the suit on the ground of abatement and therefore, the orders of the Court below in O.S.No.386 of 2006 and I.A.No.150 of 2010 are also liable to be set aside. 6. 6. Mr. K.Mahendran, learned counsel for the first respondent submitted that the Court below has rightly dismissed the suit as no steps were taken by the legal representatives of the deceased/plaintiff within the stipulated time and even though the application filed by the revision petitioners in I.A.Nos.125 and 126 of 2009 in O.S.No.5 of 2006 were pending, unless the legal representatives were added in the suit, the suit has to be dismissed as abated and once the suit was abated, the Interlocutory Applications filed by the revision petitioners were also liable to be dismissed and therefore, there was no infirmity in the order of the Court below. He further submitted that in the Supreme Court Judgment referred to by the learned counsel for the revision petitioners and other Supreme Court Judgments, subsequent purchasers were allowed to be impleaded in the suit filed for specific performance of an agreement of sale and having regard to the provisions of Specific Relief Act, the subsequent purchasers were held to be necessary parties and they were allowed to be impleaded. But, in this case, the suit was filed for declaration by the deceased/plaintiff and therefore, in that suit the subsequent purchasers cannot be impleaded and therefore, there is no need to interfere with the orders of the Court below. 7. It is seen from the arguments of the learned counsel for the revision petitioners that in respect of C.R.P.(PD) (PD) Nos.232 to 234 are concerned, the applications to implead the subsequent purchasers, namely, the revision petitioners were filed in the year 2009 and the suit was dismissed in 2010 on the ground that the plaintiff died and the legal representatives were not impleaded. As per Section 2 (11) of C.P.C., the legal representative means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. As per Order 22 Rule 10 of C.P.C., in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. As per Order 22 Rule 10 of C.P.C., in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. As per Order 22 Rule 3 of C.P.C., a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, on an application made in that behalf by the legal representatives, such legal representatives shall be made as a party to the suit and allowed to proceed with the suit. Therefore, having regard to the definition of legal representative in Section 2(11) of C.P.C., the revision petitioners in C.R.P.(PD) (MD) Nos.232 to 234 of 2012 are to be considered as legal representatives, as they have purchased the property from the deceased/plaintiff during his life time and therefore, they are entitled to get themselves impleaded as legal representatives of the deceased/plaintiff. Though no application was filed by them to get themselves impleaded as legal representatives immediately after the death of the plaintiff, they have filed applications to get themselves impleaded in the suit during the life time of the deceased/plaintiff and that application was not disposed of till his death. Further, as per Judgment reported in 2012 (3) MWN (Civil) 87 (SC) : 2012 (8) SCC 384 (Vidur Impex and Traders Pvt. Ltd. Vs. Tosh Apartments Pvt. Ltd. & others), the Hon'ble Supreme Court has laid down the guidelines for impleading parties as follows:- "1. The Court can, at any stage of the proceedings, either on an Application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as Plaintiff or Defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the Suit. 2. A necessary party is the person who ought to be joined as party to the Suit and in whose absence an effective decree cannot be passed by the Court. 3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, through he may not be a person in favour of or against whom a decree is to be made. 4. 3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, through he may not be a person in favour of or against whom a decree is to be made. 4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the Plaintiff. 5. In a Suit of Specific Performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files Application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation." Therefore, the Court can at any stage of the proceedings, either any application made by the parties or otherwise direct impleadment of any person as a party, who ought to have joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit." 8. In the Judgment reported in 2013 (2) CTC 104 cited supra, the following principles were laid down:- "1. The Appellant is not a bona fide purchaser and is, therefore, not protected against Specific Performance of the contract between the Plaintiffs and the owner Defendants in the Suit. 2. The transfer in favour of the Appellant pendente lite is effective in transferring title to the Appellant but such title shall remain subservient to the rights of the Plaintiff in the Suit and subject to any direction which the Court may eventually pass therein. 3. Since the Appellant has purchased the entire estate that forms the subject matter of the Suit, the Appellant is entitled to be added as a party Defendant to the Suit. 4. The Appellant shall as a result of his addition raise and pursue only such defences as were available and taken by the original Defendants and none other." Therefore, the transfer in favour of the petitioner pendente lite is also entitled to be impleaded in a suit filed by the vendor. 4. The Appellant shall as a result of his addition raise and pursue only such defences as were available and taken by the original Defendants and none other." Therefore, the transfer in favour of the petitioner pendente lite is also entitled to be impleaded in a suit filed by the vendor. Therefore, having regard to the Judgment of the Hon'ble Supreme Court referred to above, the subsequent purchaser is entitled to be impleaded in the suit and in C.R.P.(PD) (MD) Nos.232 to 234 of 2012, applications were filed for impleading themselves as plaintiff and during the pendency of those applications, the sole plaintiff died and therefore, the Court below ought to have taken cognizance of the applications filed in I.A.Nos.125 and 126 of 2009 in O.S.No.5 of 2006 and ought to have impleaded them as plaintiffs, as they satisfied the definition of legal representative under Section 2(11) of C.P.C., and also the requirement of Order 22 Rules 3 and 10 of C.P.C. Without permitting them to represent the estate of the deceased/plaintiff, the Court below ought not to have dismissed the suit in O.S.No.5 of 2006 as abated and subsequently, dismissed I.A.Nos.125 and 126 of 2009. Hence, the order passed in O.S.No.5 of 2006 and I.A.Nos.125 and 126 of 2009 in O.S.No.5 of 2006 are set aside and the Court below is directed to implead the revision petitioners in C.R.P.(PD) (MD) No.234 of 2012 as legal representatives of the deceased/plaintiff in that suit and proceed with the trial. 9. Insofar as C.R.P.(NPD) (MD) Nos.2230 and 2231 of 2011 are concerned, the position is different. In these revisions, the application to implead the subsequent purchasers was not filed during the life time of the deceased/plaintiff and after his death and before the dismissal of the suit as abated, the application was filed. Though the revision petitioners satisfy the definition of legal representatives as per Section 2 (11) of C.P.C., and also entitled to get himself impleaded as per the provisions of Order 22 Rules 3 and 10 of C.P.C., he has not filed an application to get himself impleaded as legal representatives of the deceased plaintiff. On the other hand, he filed an application to get himself impleaded as plaintiff after the death of the deceased. On the other hand, he filed an application to get himself impleaded as plaintiff after the death of the deceased. The contention of the learned counsel for the petitioner that before the dismissal of the suit as abated, the revision petitioner filed application to get himself impleaded as plaintiff and therefore, under Order 22 Rule 10 of C.P.C., he is liable to be impleaded cannot be accepted. Under Order 22 Rule 3(2) of C.P.C., where within the time limit no application is filed under Order 22 Rule 3(1) of C.P.C., the suit shall abate so far as the deceased plaintiff is concerned. Therefore, there is no need to pass any separate order stating that the suit is abated by reason of not impleading the legal representatives within time. Thereafter, though the application was filed to implead the revision petitioner before disposal of the suit, the suit automatically abated on the death of plaintiff when his legal representatives were not brought on record within time. Therefore, the Court below was right in dismissing the suit in O.S.No.386 of 2006 as abated and consequently rightly dismissed the application filed by the revision petitioner in I.A.No.150 of 2010. However, having regard to the definition of legal representative, as the revision petitioner has filed an application to get himself impleaded on the wrong advice, liberty is given to the revision petitioner to file an application to get himself impleaded as legal representatives of the deceased/plaintiff by filing necessary application before the Court below stating the reasons therefor. 10. In the above observations, C.R.P.(PD) (MD) Nos.232 to 234 of 2012 are allowed and C.R.P.(NPD) (MD) Nos.2230 and 2231 of 2011 are disposed of. No costs. Consequently, the connected miscellaneous petitions are closed.