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2019 DIGILAW 328 (AP)

Andiboina Varalaxmi v. Medisetty Sadamma

2019-11-15

AKULA VENKATA SESHA SAI

body2019
ORDER : Akula Venkata Sesha Sai, J. 1. Heard Sri Y. Sudhakar, learned counsel for petitioners and perused the material available before the Court. 2. Plaintiffs in Original Suit No. 84 of 2015 on the file of the Court of the X Additional District and Sessions Judge, Visakhapatnam at Anakapalle, are petitioners in the present revision, filed under Article 227 of the Constitution of India. Petitioners herein instituted the said suit for partition. Defendant No. 2 one Medisetty Appalanaidu died pending the suit. Petitioners herein filed application vide I.A. No. 370 of 2018 in the said suit under the provisions of Order XXII Rule 4 of the Code of Civil Procedure, 1908 (for short, 'CPC') read with Rule 28 of the Civil Rules of Practice, seeking impleadment of legal heirs of deceased defendant No. 2 and for consequential amendments. The said application was contested by respondents 1, 3 and 7 by way of filing counter. The learned Additional District and Sessions Judge, by way of order dated 05.03.2019, dismissed the said application. This revision challenges the validity and legal sustainability of the said order. 3. According to the learned counsel for the petitioners, the questioned order is highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of Order XXII Rule 1 CPC and sub-rule (1) of Rule 4 of Order XXII CPC. In elaboration, it is submitted by the learned counsel that defendant No. 1 is the mother of defendant No. 2, and since one of the legal heirs of the deceased defendant No. 2 is already on record, the question of abatement of the suit does not arise and there is no necessity to file applications seeking to set aside the abatement, if any, and to condone delay in filing the application to bring the legal representatives of deceased defendant No. 2 on record. In support of his submissions and contentions, the learned counsel of the petitioners places reliance on the judgment of the Hon'ble Apex Court in Mahabir Prasad v. Jage Ram and others AIR 1971 SC 742 . 4. The provision of law, which is germane and relevant for the purpose of resolving the issue on hand, is Order XXII CPC, which deals with death, marriage and insolvency of the parties. 4. The provision of law, which is germane and relevant for the purpose of resolving the issue on hand, is Order XXII CPC, which deals with death, marriage and insolvency of the parties. Rule 1 of Order XXII CPC, in clear and vivid terms, stipulates that the death of plaintiff or defendant shall not cause the suit to abate, if the right to sue survives. Rule 4 of Order XXII CPC deals with the procedure in case of death of one of several defendants or of sole defendant. Sub-rules (1) to (4) of Rule 4 of Order XXII CPC read as infra: "Procedure in case of death of one of several defendants or of sole defendant- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving 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. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed, it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place." 5. While referring to the above provisions of law, it is contended strenuously by the learned counsel for the petitioners/plaintiffs that since defendant No. 1, who is none other than mother of deceased defendant No. 2, is already there on record and is prosecuting the lis, question of abatement of the suit does not arise, and the said provision missed the attention of the learned Additional District and Sessions Judge. In this context, it may be appropriate to refer to the decision cited by the learned counsel for the petitioners in support of his submissions and contentions. In Mahabir Prasad v. Jage Ram and others, AIR 1971 SC 742 (supra), when a similar issue came up for consideration before the Hon'ble Supreme Court, the Hon'ble Apex Court, at paragraph No. 6 of the said judgment, held as under: "Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj, Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate. On that ground also the order passed by the High Court cannot be sustained." 6. Having regard to the provisions of law extracted supra and the law laid down by the Hon'ble Apex Court in the above referred judgment, this Court does not have any scintilla of hesitation to hold that the question of abatement of the suit as against defendant No. 2 does not arise, as defendant No. 1, mother, who is one of the legal heirs of deceased defendant No. 2, is already there on record. 7. For the aforesaid reasons, revision is allowed, setting aside the order dated 05.03.2019 passed in I.A. No. 370 of 2018 in Original Suit No. 84 of 2015 on the file of the Court of the X Additional District and Sessions Judge, Visakhapatnam at Anakapalle, and consequently, I.A. No. 370 of 2018 stands allowed as prayed for. The court below shall take action accordingly. There shall be no order as to costs of the Civil Revision Petition. Miscellaneous Petitions pending, if any, in the Civil Revision Petition shall stand closed.