JUDGMENT : 1. In the present case, respondent No. 20 had expired prior to the institution of the civil suit in the year 2003 whereas the civil suit was filed on 16.12.2011. Respondent No. 20, namely, Gurbhaj Singh was arrayed as defendant No. 21 in the civil suit. The civil suit filed by the plaintiffs/appellants was dismissed by the learned 3rd Additional District Judge, Ambikapur, District Sarguja (C.G.) vide judgment and decree dated 16.04.2019. The present appeal was preferred by the plaintiffs against the aforesaid judgment and decree on 22.05.2019. This court issued notice to the respondents. According to the office report, it came on record that defendant No. 20 had expired in 2003, respondent No. 6 had expired in 2019 and respondent No. 35 expired on 30.04.2017. The appellants moved applications for bringing legal representatives of deceased respondents under Order 22 Rule 4 of CPC along with the application for setting aside abatement under Order 22 Rule 9 of CPC and an application for condonation of delay under Section 5 of the Limitation Act assigning reason that the fact of the death of these respondents was not brought into their knowledge. 2. During the course of arguments, an objection was raised by the respondents that respondent No. 20, namely, Gurbhaj Singh had expired prior to the institution of the civil suit whereas no steps were taken to bring his legal representatives on record. Further, the objection was raised that the application under Order 22 Rule 4 of CPC is not maintainable for respondent No. 20 as he did not expire during the pendency of the civil suit. 3. Mr. Anurag Singh, counsel appearing for appellants would submit that though other defendants appeared before the learned trial court, who are family members of respondent No. 20, namely, Gurbhaj Singh, they never informed the court that respondent No. 20 is no more, therefore, no steps could be taken during the pendency of the civil suit. He would further argue that a civil suit was filed for partition and possession and both the parties have right over the suit property. He would further submit that the share of each member of the family is certain in the suit property, therefore, the suit shall not abate against any of the parties to the civil suit. He would further argue that a civil suit was filed for partition and possession and both the parties have right over the suit property. He would further submit that the share of each member of the family is certain in the suit property, therefore, the suit shall not abate against any of the parties to the civil suit. He would also argue that though an application under Order 22 Rule 4 of CPC for substitution of legal representatives of respondent No. 20 is not maintainable according to provisions of Order 22 Rule 4 of CPC, at the same time, application under Order 1 Rule 10 of CPC is maintainable according to the ratio laid down by Hon’ble Supreme Court in the matter of Pankajbhai Rameshbhai Zalavadiya Versus Jethabhai Kalabhai Zalavadiya (deceased) reported in (2017) 9 SCC 700 . He would also submit that this court may exercise its power to treat the application moved under Order 22 Rule 4 of CPC as an application under Order 1 Rule 10 of CPC. 4. I have heard learned counsel for parties and perused the applications moved by the appellants and the provisions of Order 22 Rule 4 of CPC. 5. It is not in dispute that respondent No. 20, who was defendant No. 21 in the civil suit, died in the year 2003 and his legal representatives were not brought on record by the plaintiffs/appellants in the civil suit. The civil suit instituted by the plaintiffs was dismissed by the learned trial court. An appeal was preferred before this court and a summons was issued to respondents/defendants. It was informed by the Registry that during the pendency of this appeal, respondent No. 20, namely, Gurbhaj Singh died in 2003 whereas two more defendants/respondents died during the pendency of the first appeal. 6. At this stage, it would be pertinent to notice the provisions of Order 22 Rule 4 of CPC. It reads as under:- 4. It was informed by the Registry that during the pendency of this appeal, respondent No. 20, namely, Gurbhaj Singh died in 2003 whereas two more defendants/respondents died during the pendency of the first appeal. 6. At this stage, it would be pertinent to notice the provisions of Order 22 Rule 4 of CPC. It reads as under:- 4. Procedure in case of death of one of several defendants or of sole defendant.—(1) Where oneof 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 defendants 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) Where— (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application with the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.] [4A. Procedure where there is no legal representative.—(1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may be order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit. (2) Before making an order under this rule, the Court— (a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and (b) shall as certain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.] 7. From a bare reading of the provisions of Order 22 Rule 4 of CPC, it is quite vivid that an application for substitution of legal representatives can be moved if any of the defendant(s) die during the pendency of the suit. In the present case, defendant No. 21/respondent No. 20, namely, Gurbhaj Singh had expired prior to the institution of the civil suit, therefore, the application under Order 22 Rule 4 of CPC would not be maintainable. The suit was filed for partition by the plaintiffs and if the suit is decreed, plaintiffs as well as defendants or their legal representatives would get their shares in the suit property, therefore, the death of any of the parties to the litigation would not affect the right of the parties. 8. The Hon’ble Supreme Court in the matter of Pankajbhai Rameshbhai Zalavadiya (supra) while dealing with a similar issue in paras 2, 3, 4, 5, 7 and 16 held as under:- “2. The appellant filed a suit on 24.06.2008 seeking to set aside a sale deed executed in March 1995 in respect of a parcel of land which was purchased by defendant no. 7. As on the date of filing of the suit, defendant no. 7 was already dead. Upon the report of the process server to this effect, the trial Court on 31.03.2009 ordered that the suit had abated as against defendant no. 7. Initially, the appellant filed an application under Order 22 Rule 4 of the Code for bringing on record the legal representatives of deceased defendant no. 7. The trial Court while rejecting the said application on 09.09.2009 observed thus: “According to the ratio laid down in the above said cases Order 22 Rule 4 of Code will apply only when the party dies during the pendency of the proceeding. Further held that a suit against dead person is admittedly a nullity and therefore, Order XXII Rule 4 cannot be invoked. Further held that the provisions of Order XXII Rule 4 of Code and Order 1 Rule 10 of Code are different and independent. Therefore, according to heirs of deceased defendant, the heirs cannot be joined as party because the suit is filed against dead person. Now in this case, the endorsement for the bailiff for the death of defendant No. 7 made on 31.01.2009 and the present application is filed on 20.05.2009. Therefore, according to heirs of deceased defendant, the heirs cannot be joined as party because the suit is filed against dead person. Now in this case, the endorsement for the bailiff for the death of defendant No. 7 made on 31.01.2009 and the present application is filed on 20.05.2009. The application is filed for setting aside abatement and to join the heirs in this suit. Moreover, there is no case of the plaintiff that he has no knowledge about the death of defendant No. 7 or he has made inquiry. Therefore, as per the judgment produced by the defendant, the suit against dead person is nullity. Moreover, the plaintiff has not mentioned the provision under which he has filed the present application. Moreover, the plaintiff has remedy against the heirs therefore, no injustice will cause to him. Moreover, there are other defendants on record. Under these circumstances, the application cannot be allowed. Hence, I pass the following order in the interest of justice. ORDER 1. The application is not allowed. 2. No order as to cost.” 3. Thereafter the appellant chose to file an application for impleading the legal representatives of deceased defendant no. 7 on record, under Order 1 Rule 10 of the Code. The aforementioned application also came to be dismissed by the trial Court on 03.09.2011, and confirmed by the High Court by passing the impugned judgment. Hence, this appeal. 4. Learned counsel for the appellant/original plaintiff contended that the subsequent application under Order 1 Rule 10 of Code could not be dismissed by applying the principle of res-judicata merely because the application filed earlier under Order 22 Rule 4 of the Code was dismissed on account of non-maintainability; that the appellant has accepted the order passed by the trial Court on the application filed under Order 22 Rule 4 of the Code since the reasons assigned by the trial Court were proper and acceptable inasmuch as the legal representatives cannot be brought on record under Order 22 Rule 4 of the Code in the suit filed against defendant no. 7, who had died prior to filing of the suit; the provisions of Order 22 Rule 4 of the Code will apply only if the sole, or one of the defendants, dies during the subsistence of the suit. 7, who had died prior to filing of the suit; the provisions of Order 22 Rule 4 of the Code will apply only if the sole, or one of the defendants, dies during the subsistence of the suit. Since defendant no.7 had expired prior to the filing of the suit, the only course open for the appellant was to implead the legal representatives/heirs of deceased defendant no.7 on record under Order 1 Rule 10 of the Code; hence, the earlier order rejecting the application filed under Order 22 Rule 4 of the Code as not maintainable will not operate as res-judicata for entertaining the subsequent application for impleading the legal representatives of deceased defendant no.7, under Order 1 Rule 10 of the Code. As the appellant did not have knowledge about the death of defendant No.7, the suit has a right to survive and the mistake committed by the appellant in not arraying the legal representatives of deceased defendant no. 7 at the time of filing of the suit is a bona fide mistake and not a deliberate one. Since such mistake has occurred in good faith, the right to continue the suit against the legal representatives of deceased defendant no.7 remains. The trial has not yet begun and hence the issue of delay, if any, in bringing the legal representatives on record, will not prejudice the legal representatives of defendant No.7. Since the proposed parties are necessary parties to the suit and their impleadment cannot prejudice anybody, the interests of justice require bringing of the legal representatives of deceased defendant no. 7 on record. 5. Per contra, learned counsel appearing on behalf of the respondents relying upon the catena of judgments reported in Ram Prasad Dagduram vs Vijay Kumar Motilal Mirakhanwala & Ors., AIR 1967 SC 278 , Madhukar Ramachandra Keni vs Vasant Jagannath Patil & Ors., 2013 (4) Mh. L. J. 403, Jayalaxmi Janardhan Walawalkar & Ors. vs Lilachand Laxmichand Kapasi & Ors., 1998 (3) Mh. L. J. 618, Arora Enterprises Ltd. vs Indubhushan Obhan 1997 (5) SCC 366 contended that the trial Court as well as the High Court are justified in rejecting the application for impleading the legal representatives of deceased defendant no. L. J. 403, Jayalaxmi Janardhan Walawalkar & Ors. vs Lilachand Laxmichand Kapasi & Ors., 1998 (3) Mh. L. J. 618, Arora Enterprises Ltd. vs Indubhushan Obhan 1997 (5) SCC 366 contended that the trial Court as well as the High Court are justified in rejecting the application for impleading the legal representatives of deceased defendant no. 7 filed under Order 1 Rule 10 of the Code; since the application filed by the appellant initially under Order 22 Rule 4 of the Code was dismissed and as the second application filed under Order 1 Rule 10 of the Code was for the very same purpose, the Courts below were justified in rejecting the application preferred under Order 1 Rule 10 of the Code. He further submits that the application preferred under Order 1 Rule 10 of the Code to implead the legal representatives of deceased defendant no.7 is not maintainable, since the appellant has not questioned the earlier Order dated 09.09.2009 rejecting the application filed under Order 22 Rule 4 of the Code, and therefore the said order has attained finality and binds the appellant; the appellant cannot be allowed to file another application for the same relief by invoking different provision of the Code. 7. 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. If one of the defendants has expired prior to the filing of the suit, the legal representatives of such deceased defendant cannot be brought on record in the suit under Order 22 Rule 4 of the Code. Before proceeding further, it is relevant to note the provisions of Order 1 Rule 10 and Sections 151 & 153 of the Code, which read thus: “Order 1 Rule 10: Suit in name of wrong plaintiff. – 1. Before proceeding further, it is relevant to note the provisions of Order 1 Rule 10 and Sections 151 & 153 of the Code, which read thus: “Order 1 Rule 10: Suit in name of wrong plaintiff. – 1. Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court things just. 2. Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. 3. No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. 4. Where defendant added, plaint to be amended.-where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant. 5. Subject to the provisions of the India Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. 5. Subject to the provisions of the India Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. Section 151: Saving of inherent powers of Court - Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Section 153: General power to amend – The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. 16. In the matter on hand, though the trial court had rightly dismissed the application under Order 22 Rule 4 of the Code as not maintainable at an earlier point of time, in our considered opinion, it needs to be mentioned that the trial Court at that point of time itself could have treated the said application filed under Order 22 Rule 4 of the Code as one filed under Order 1 Rule 10 of the CPC, in order to do justice between the parties. Merely because of the non- mentioning of the correct provision as Order 1 Rule 10 of the Code at the initial stage by the advocate for the plaintiff, the parties should not be made to suffer. It is by now well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. 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 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. 9. The High Court of Andhra Pradesh in the matter of Edubilli Appamma vs. idubilli Ramulu reported in 2002 LawSuit (AP) 434 in para 9 held that the interest of any of the parties in the suit property in partition and administration suits is not affected by any abatement nor there is any prejudice caused to the other side in any of the aforementioned cases. Para 9 of the aforementioned judgment is reproduced herein below:- “9. The 4th principle laid down by their Lordships of the Division Bench is, in fact, not an exception to the principles laid down in Rule 2 as explained above. But it deals with a totally different situation. Their Lordships held that there cannot be any question or abatement of a suit for partition as a whole due to the death of only one of the parties, interlocutory, other suits. In fact, in Surendem Nath 's case (supra) deals with this aspect of the matter also at para 7. While taking note of the legal position in such a situation in so far as it concerns the partition or administration suit, the Court held as follows: 7. The position in respect of partition or administration suits has unique feature in the sense that every party in such suits has an interest in the property and can be deemed as plaintiffs seeking adequate relief against others and there may be no question of limitation involved in such proceedings as also in redemption suits for all practical purposes. While the Interest of any of the parties in the suit property in partition and administration suits is not affected by any abatement nor there is any prejudice caused to the other side in any of the aforementioned cases." 10. While the Interest of any of the parties in the suit property in partition and administration suits is not affected by any abatement nor there is any prejudice caused to the other side in any of the aforementioned cases." 10. Taking into consideration the law laid down by the Hon’ble Supreme Court and the High Court of Andhra Pradesh, in the opinion of this court, legal representatives of defendant No. 21/respondent No. 20 can be brought on record. The application moved by the appellants under Order 22 Rule 4 of CPC in this regard is not maintainable, therefore, the same is being treated as an application under Order 1 Rule 10 of CPC. 11. Accordingly, I. A. No. 10, the application under Order 22 Rule 9 read with Section 151 of CPC, I. A. No. 11, the application under Section 5 of the Limitation Act and I. A. No. 12 are hereby allowed and appellants are permitted to carry out necessary amendments with respect to respondent No. 20 within a period of two weeks. 12. Heard on I. A. No. 5, an application under Section 5 of the Limitation Act, I. A. No. 6, an application under Order 22 Rule 9 read with Section 151 of CPC and I. A. No. 7, an application under Section 5 of the Limitation Act with respect to respondent No. 6. 13. Learned counsel for appellants would submit that respondent No. 6, namely, Ram Avtar Agrawal expired in the year 2019 but the date of his death is not certain, therefore, the application for setting aside abatement and the application for condonation of delay have been moved. 14. On the other hand, respective counsel for respondents would oppose. 15. Taking into consideration the reasons assigned in the applications, all applications with respect to respondent No. 6 are allowed. Accordingly, appellants are permitted to carry out necessary amendments with respect to respondent No. 6 within a period of two weeks. 16. Heard on I. A. No. 14, an application under Order 22 Rule 9 of CPC, I. A. No.15, an application under Section 5 of the Limitation Act and I. A. No. 16, an application under Order 22 Rule 4 read with Section 151 of CPC with respect to respondent No. 35. 17. 16. Heard on I. A. No. 14, an application under Order 22 Rule 9 of CPC, I. A. No.15, an application under Section 5 of the Limitation Act and I. A. No. 16, an application under Order 22 Rule 4 read with Section 151 of CPC with respect to respondent No. 35. 17. Learned counsel for the appellants would submit that respondent No. 35, namely, Taradevi expired on 30.04.2017 but her death was not within the knowledge of the appellants and after getting the information from the Registry, they have moved the application for substitution of legal representatives of respondent No. 35, namely, Taradevi. 18. On the other hand, respective counsel for respondents would oppose. 19. Taking into consideration the reasons assigned in the applications, all applications with respect to respondent No. 35 are allowed. Accordingly, appellants are permitted to carry out necessary amendments with respect to respondent No. 35 within a period of two weeks. 20. Also heard on I. A. No. 17, an application for deletion of the name of appellant No. 4 from the array of appellants in the cause title. 21. Learned counsel for appellants would submit that appellant No. 4, namely, Leena Jaiswal expired on 18.06.2022 and her legal representatives are already on record, therefore her name be deleted from the array of appellants in the cause title. 22. No objection from the other side. 23. Permission granted, I. A. No. 17 is allowed. Appellants are granted two weeks’ time to carry out necessary amendments. 24. Call this matter after two weeks.