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TMI Blog2017 (10) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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. Appeal allowed. - CIVIL APPEAL NO. 15549 OF 2017, Arising Out Of SLP (C) NO. 31212 of 2014 - - - Dated:- 3-10-2017 - Mr. ARUN MISHRA Mr.MOHAN M. SHANTANAGOUDAR, JJ. JUDGMENT Mohan M. Shantanagoudar, J. Leave Granted. 2. This appeal arises out of the judgment dated 05.03.2014 passed by the Gujarat High Court in Special Civil Application No. 16985 of 2011 dismissing the Special Civil Application filed by the appellant, consequently affirming the order passed by the trial Court rejecting the application filed under Order 1 Rule 10 of the Code of Civil Procedure (hereinafter referred to as the Code ). 3. The brief facts leading to this appeal are as under: 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant 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. 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. 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 det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code are the legal representatives of the deceased defendant no. 7. Therefore, there cannot be any dispute that the presence of the legal representatives of the deceased is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions in the suit. Their presence is necessary in the suit for the determination of the real matter in dispute. Therefore, they are needed to be brought on record, of course, subject to the law of limitation, as contended under Section 21 of the Limitation Act. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Since the Limitation Act, 1963 (now in force) was at that time not in existence, this Court applied the old limitation law and held that the suit was barred by limitation. As of now, the proviso to Section 21(1) of the Limitation Act 1963 empowers the Court to direct that the suit shall be deemed to have been instituted on an earlier date, where the omission to include a new plaintiff or defendant was due to a mistake made in good faith. Therefore, it is open to the plaintiff in the matter on hand to prove good faith on his part in not including the legal representatives of deceased defendant no. 7, during the course of trial of suit. 11. It would be relevant to note that in the Case of Bhagwan Swaroop and Ors. vs Mool Chand and Ors., 1983 (2) SCC 132, this Court observed thus: 4. It is true that it was incumbent upon the appellants to implead the heirs and legal representatives of deceased respondent 1 in time. It is equally true that the appellants were negligent in moving the proper application. We would not question the finding of the High Court that appellants 2, 3 and 4 knew about the death of the deceased respondent 1. This being a suit for partition of joint fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grievance about the delay in bringing them on record. It is the second respondent who is fighting both the appellants and the 1st respondent who wants to derive a technical advantage by this procedural lapse. If the trend is to encourage fairplay in action in administrative law, it must all the more inhere in judicial approach. Such applications have to be approached with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. Undoubtedly, justice according to law; law to be administered to advance justice. 12. This Court in the case of Karuppaswamy and Ors. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 13. In the Case of Banwari Lal vs Balbir Singh, 2016 (1) SCC 607, defendant no. 1, (who was respondent no. 1 in the first appeal) had expired 2 years prior to the decision in the first appeal, but no steps were taken to bring his legal representatives on record. The first appellate Court decided in favour of the plaintiff. When the matter came up in second appeal, the legal representatives of defendant no. 1 filed an application for condonation of delay and restoration. This Court though observed that the application ought to have been filed under Order 22 Rule 4 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 arra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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