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2019 DIGILAW 447 (ORI)

Suprava Pradhan v. Labanyamayee Sahu (Dead)

2019-07-10

A.K.RATH

body2019
JUDGMENT : A.K. RATH, J. 1. This petition challenges the order dated 18.09.2018, passed by the learned Civil Judge (Junior Division), Berhampur in C.S. No.58 of 2014, whereby and whereunder, learned trial court has rejected the applications of the plaintiffs under Order 6 Rule 17 CPC and under Order 1 Rule 10 CPC for impleadment of legal representatives of the deceased defendant no.1. 2. The dispute lies in a narrow compass. The facts need not be recounted in detail. Suffice it to say that plaintiffs-petitioners instituted the suit for declaration of title and permanent injunction. Defendant nos.2 and 3 entered contest. They filed their separate written statements. While matter stood thus, the plaintiffs filed two applications; one under Order 6 Rule 17 CPC and another under Order 1 Rule 10 CPC to delete the defendant no.1 from the cause title of the plaint and implead her legal representatives. It is stated that the defendant no.2 has filed written statement stating that defendant no.1 died on 19.06.2003. The suit was filed on 05.04.2014. Husband of defendant no.1 died three years back. Her son is a necessary party to the suit. Defendant no.2 registered the petition stating that suit is not maintainable, since the same is filed against a dead person. The petition has been filed to protract the litigation. Learned trial court held that after lapse of fifteen years, the plaintiffs have filed the petition. No application for condonation of delay has been filed. The suit has abated against defendant no.1. Plaintiffs have not filed any application for setting aside of abatement. Plaintiffs cannot substitute the legal representatives of deceased defendant no.1 in the guise of an amendment petition and petition under Order 1 Rule 10 CPC. 3. Mr.N.K.Sahu, learned Advocate for the petitioners submitted that plaintiffs were not aware of the death of defendant no.1. Defendant no.2 has filed written statement stating that defendant no.1 died on 19.06.2003. Thereafter the application for impleadment was filed. The plaintiffs prosecuted the lis diligently and bonafide. Order 22 CPC does not apply to the case, since defendant no.1 died much prior to institution of the suit. To buttress his submission, he placed reliance on the decision of the apex Court in the case of Pankajbhai Rameshbhai Zalavadia Vrs. Jethabhai Kalabhai Zalavadiya (Deceased) through Lrs. and others, (2018) AIR SC 490. 4. Order 22 CPC does not apply to the case, since defendant no.1 died much prior to institution of the suit. To buttress his submission, he placed reliance on the decision of the apex Court in the case of Pankajbhai Rameshbhai Zalavadia Vrs. Jethabhai Kalabhai Zalavadiya (Deceased) through Lrs. and others, (2018) AIR SC 490. 4. Per contra, Mr.M.R.Dash, learned Advocate for the opposite party nos.2 and 3 submitted that defendant no.1 died on 19.06.2003. The suit was filed after lapse of eleven years, i.e. in the year 2014. On 19.06.2017, defendant no.2 filed written statement. In paragraph-16 of the written statement it is stated that defendant no.1 has expired. But then, the application for substitution was filed on 18.07.2018. The applications were filed after lapse of one year of filing written statement. Death of defendant no.1 was much prior to institution of suit. Plaintiffs were aware of death of defendant no.1. He further submitted that the suit was filed against a dead man. The suit is a nullity. 5. In Pankajbhai Rameshbhai Zalavadia (supra), the appellant filed a suit on 24.06.2008 to set aside the sale deed executed on March, 1995 in respect of the land purchased by defendant no.7. On the date of filing of the suit, defendant no.1 was dead. Upon the report of the process server, the trial court on 31.3.2009 ordered that the suit was abated against the defendant no.7. Initially, the appellants filed an application under Order 22 Rule 4 CPC for bringing on record the legal representatives of deceased defendant no.7. The Trial court rejected the said application. Thereafter, the appellants filed an application under Order 1 Rule 10 CPC for impleading the legal representatives of deceased defendant no.7. The same was dismissed. The High Court confirmed the order. Thereafter, the matter travelled to the apex Court. The apex Court held: "5. The only question which is to be decided in this appeal is, whether the legal representatives of one of the defendants can be impleaded under Order 1 Rule 10 of the Code where such defendant expired prior to the filing of the suit, particularly when the application filed by the plaintiff to bring the legal representatives of the deceased on record under Order 22 Rule 4 of the Code was dismissed earlier as not maintainable. 6. 6. The bare reading of Order 22 Rule 4 of the Code makes it clear that Order 22 Rule 4 of the Code applies only in the case where the death of one of the several defendants or the sole defendant occurs during the subsistence of the suit. XXX XXX XXX XXX XXX 8. Merely because the earlier application filed by the appellant under Order 22 Rule 4 of the Code was dismissed on 09.09.2009 as not maintainable, it will not prohibit the plaintiff from filing another application, which is maintainable in law. There was no adjudication of the application to bring legal representatives on record on merits by virtue of the order dated 09.09.2009. On the other hand, the earlier application filed under Order 22 Rule 4 of the Code was dismissed by the trial Court as not maintainable, inasmuch as defendant no. 7 had died prior to the filing of the suit and that Order 22 Rule 4 of the Code comes into the picture only when a party dies during the pendency of the suit. The only course open to the appellant in law was to file an application for impleadment to bring on record the legal representatives of deceased defendant no. 7 under Order 1 Rule 10 of the Code. Hence, the order passed by the trial Court on the application filed under Order 22 Rule 4 of the Code, dated 09.09.2009, will not act as res-judicata. 9. Order 1 Rule 10 of the Code enables the Court to add any person as a party at any stage of the proceedings, if the person whose presence in Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the Court to substitute a party in the suit who is a wrong person with a right person. If the Court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. If the Court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the Court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the Court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit. XXX XXX XXX XXX XXX 12. This Court in the case of Karuppaswamy and Others. vs C. Ramamurthy, (1993) 4 SCC 41 has permitted the plaintiff to modify the application filed by him under Order 22 Rule 4 of the Code to make it an application under the provisions of Sections 151 and 153 of the Code. In the said matter also the suit was filed against a dead person. This Court proceeded further to conclude that the plaintiff has shown good faith as contemplated under Section 21(1) of Limitation Act and hence the impleadment of the legal representatives/heirs must date back to the date of the presentation of the plaint. In the said matter, it was observed thus: "4. A comparative reading of the proviso to Sub-section (1) shows that its addition has made all the difference. It is also clear that the proviso has appeared to permit correction of errors which have been committed due to a mistake made in good faith but only when the court permits correction of such mistake. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. The proviso to Sub-section (1) of Section 21 of the Act is obviously in line with the spirit and thought of some other provisions in Part III of the Act such as Section 14 providing exclusion of time of proceeding bona fide in court without jurisdiction, when computing the period of limitation for any suit, and Section 17(1) providing a different period of Limitation starting when discovering a fraud or mistake instead of the commission of fraud or mistake. While invoking the beneficent proviso to Sub-section (1) of Section 21 of the Act an averment that a mistake was made in good faith by impleading a dead defendant in the suit should be made and the court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith. The court's satisfaction alone breaths life in the suit. 5. It is noteworthy that the trial court did not attribute any neglect or contumacy to the conduct of the plaintiff-respondent. It was rather observed that the plaintiff could have known the date of the death of the first defendant only by the counter filed to IA 265 of 1975. Normally, if he had known about the date of death of the defendant, he would have filed the suit in the first instance against his heirs and legal representatives. The trial court has also opined that the plaintiff was ignorant as to such death and that is why he filed IA 265 of 1975 under Order 22 Rule 4 of C.P.C. The High Court too has recorded a finding that there was nothing to show that the plaintiff was aware of the death of the first defendant and yet knowing well about it, he would persist in filing the suit against a dead person. In conclusion, the learned Single Judge held that since plaintiff respondent had taken prompt action it clearly showed that he had acted in good faith. In conclusion, the learned Single Judge held that since plaintiff respondent had taken prompt action it clearly showed that he had acted in good faith. Thus the High Court made out a case for invoking the proviso to Sub-section (1) of Section 21 of the Act in favour of the plaintiff-respondent. Sequally, the High Court found no difficulty in allowing IA 785 of 1975 permitting change of the provision whereunder IA 265 of 1975 was filed and in allowing IA 265 of 1975 ordering the suit against the heirs and legal representatives of defendant 1 to be dating back to 14.11.74, the date on which the plaint was originally presented." (underlining is ours) XXX XXX XXX XXX XXX 14............ Ultimately, the Courts are meant to do justice and not to decide the applications based on technicalities. The provision under Order 1 Rule 10 CPC speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party who is improperly joined, it can add any one as a plaintiff or defendant if it finds that such person is a necessary or proper party. The Court under Order 1 Rule 10(2) of the Code will of course act according to reason and fair play and not according to whims and caprice. The expression "to settle all questions involved" used in Order 1 Rule 10 (2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject matter thereof. The Parliament in its wisdom while framing this rule must be held to have thought that all material questions common to the parties to the suit and to the third parties should be tried once for all. The Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties. There cannot be any dispute that the party impleaded must have a direct interest in the subject matter of litigation. In a suit seeking cancellation of sale deed, as mentioned supra, a person who has purchased the property and whose rights are likely to be affected pursuant to the judgment in the suit is a necessary party, and he has to be added. If such purchaser has expired, his legal representatives are necessary parties. In a suit seeking cancellation of sale deed, as mentioned supra, a person who has purchased the property and whose rights are likely to be affected pursuant to the judgment in the suit is a necessary party, and he has to be added. If such purchaser has expired, his legal representatives are necessary parties. In the matter on hand, since the purchaser of the suit property, i.e., defendant no.7 has expired prior to the filing of the suit, his legal representatives ought to have been arrayed as parties in the suit while presenting the plaint. As such impleadment was not made at the time of filing of the plaint in view of the fact that the plaintiff did not know about the death of the purchaser, he cannot be non-suited merely because of his ignorance of the said fact. To do justice between the parties and as the legal representatives of the purchaser of the suit property are necessary parties, they have to be impleaded under Order 1 Rule 10 of the Code, inasmuch as the application under Order 22 Rule 4 of the Code was not maintainable. As mentioned supra, it is only if a defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the Code can be invoked. Since one of the defendants i.e. defendant No.7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased defendant No.7 under Order 1 Rule 10 of the Code, for the simple reason that the plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties, subject of course to the law of limitation. Normally, if the plaintiff had known about the death of one of the defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that the High Court experienced in granting the application filed by the plaintiff under Order 1 Rule 10 of the Code discloses, with great respect, a hyper-technical approach which may result in the miscarriage of justice. The difficulty that the High Court experienced in granting the application filed by the plaintiff under Order 1 Rule 10 of the Code discloses, with great respect, a hyper-technical approach which may result in the miscarriage of justice. As the heirs of the deceased defendant no.7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the Courts are meant to do substantial justice between the parties and that technical rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice." 5.1. It was further held that there is no bar for filing the application under Order 1 Rule 10 CPC, even when the application under Order 22 Rule 4 of the Code was dismissed as not maintainable in the facts of the case. The legal heirs of the deceased person in such a matter can be added parties under Order 1 Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial. 6. The ratio in Pankajbhai Rameshbhai Zalavadia proprio vigore applies to the facts of the case. 7. In the wake of the aforesaid, the impugned order dated 18.09.2018, passed by the learned Civil Judge (Junior Division), Berhampur in C.S. No.58 of 2014 is quashed. Learned trial court is directed to allow the application for impleadment of legal representatives of defendant no.1 and bring them on record. The plea of limitation shall be decided during trial. The petition is allowed. There shall be no order as to costs.