2023 (12) TMI 470 - HC - Indian Laws

Validity of settlement deed executed by the first defendant, his wife in favour of the second defendant, his son - Abatement of the suit for non substitution of the legal heir of the deceased / plaintiff - Order XXII Rule 3 read with Section 151 C.P.C to implead the petitioners therein as legal heirs of the deceased / plaintiff in the suit - sum and substance of the arguments of the learned counsel for the revision petitioners is that the daughters are seeking to implead themselves claiming under the Will of their father and therefore, the original cause of action in the suit cannot survive to the benefit of the daughters and therefore, they cannot be permitted to be impleaded in the suit. HELD THAT - Admittedly, though the respondents 1 and 2 are the daughters of the plaintiff, their applications to the Court is only to implead them in the capacity of their being legal representatives of the plaintiff. It may be a different aspect altogether that the defendants 1 and 2 are the legal heirs of the deceased plaintiff along with the respondents 1 and 2, being the daughters, who are also legal heirs of the deceased plaintiff. However, on a conjoint reading of Section 2 (11) and Order XXII Rule 3 C.P.C., it is clear that the persons claiming to be legal representatives of the deceased plaintiff are also entitled to make an application under Order XXII Rule 9 C.P.C. Here, the daughters are claiming only as legal representatives having become entitled to estate of their father. Therefore, it cannot be said that the respondents 1 and 2, are not entitled to maintain the application under Order XXII Rule 9 C.P.C. Order XXII Rule 9(1) C.P.C makes it abundantly clear that when a suit is dismissed under Order XXII C.P.C., no fresh suit can be brought under the same cause of action. Here, admittedly, the plaintiff approached the Court to set aside the settlement deed executed by his wife in favour of their son on the strength of a Will that had not even taken effect. Admittedly the suit has been dismissed, whether on the ground of default or as abated. Therefore, challenge to the settlement deed automatically goes with the dismissal of the suit. The core issue in the suit revolves around the factum of the execution of the settlement deed, based on a Will that never came to effect as the executant of the Will was very much alive. That being the position driving the defendants to another round of litigation will not subserve the cause of justice. Rules and procedures are always meant to be only to aid and be a handmaid of justice and not intended to destroy or defeat the cause of justice. Objecting to the application on technical/ hyper technical ground and driving the parties to multiply litigation will not in any way serve the interest of the parties themselves, leave alone justice. The Courts have always endeavoured to do substantial justice, ignoring technical objections raised by one of the parties to the litigation. In Ambalika Padhi's case 1991 (12) TMI 293 - SUPREME COURT , the Hon'ble Supreme Court held that when the substituted and transposed plaintiffs were claiming under the original plaintiff and continuing the suit, it cannot be said that their cause of action is different from the cause of action of the original plaintiff, merely because, they are claiming to be legal representatives under settlement under Will. Therefore, the ratio laid down by the petitioners, it actually detrimental to the case of the revision petitioners. There are no infirmity in the order of the trial Court - Both the Civil Revision Petitions fail and accordingly dismissed.

Summary

Issues Involved:
1. Whether the daughters of the deceased plaintiff can be impleaded as plaintiffs in the suit.
2. Whether the cause of action survives the death of the original plaintiff.
3. The validity of the Will executed by the deceased plaintiff.
4. Whether the applications filed by the daughters to set aside the abatement and restore the suit are maintainable.

Summary:

Issue 1: Impleading Daughters as Plaintiffs
The core issue is whether the daughters of the deceased plaintiff can be impleaded as plaintiffs in the suit. The trial court allowed the applications filed by the daughters under Order XXII Rule 3 read with Section 151 C.P.C. The respondents argued that as legatees under the Will dated 20.11.2012, they are entitled to be substituted as plaintiffs. The court held that the daughters, as legal representatives, are entitled to step into the shoes of the deceased plaintiff and continue the suit.

Issue 2: Survival of Cause of Action
The petitioners contended that the cause of action did not survive the death of the plaintiff and that the daughters cannot prosecute the suit. The court found that the cause of action, which revolves around the challenge to the settlement deed executed by the first defendant in favor of the second defendant, survives. The daughters, as legal representatives, can continue the suit to challenge the settlement deed.

Issue 3: Validity of the Will
The petitioners argued that the genuineness of the Will executed by the deceased plaintiff cannot be gone into in the present suit. The court held that the daughters are claiming under the Will and are entitled to maintain the application under Order XXII Rule 9 C.P.C. The genuineness of the Will can be challenged during the trial.

Issue 4: Maintainability of Applications
The petitioners contended that the applications filed by the daughters were not maintainable as the suit was dismissed for default and not as abated. The court clarified that the daughters, as legal representatives, are entitled to apply for an order to set aside the abatement or dismissal of the suit under Order XXII Rule 9 C.P.C. The court emphasized that procedural rules should aid in the delivery of justice and not defeat it.

Conclusion:
The court dismissed the civil revision petitions, finding no infirmity in the trial court's order allowing the applications to implead the daughters as plaintiffs and set aside the abatement. The court directed the trial court to dispose of the suit expeditiously by 30.04.2024.