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TMI Blog2023 (12) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... pacity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant, his son, on 28.09.2005 was null and void and for a consequential permanent injunction to restrain the defendants from executing further documents in favour of third parties. It is the case of the plaintiff that he had purchased the suit property on 17.08.1983 and on 11.09.1997, he executed a Will in favour of the first defendant, ie., his wife. The plaintiff had left home and was not there for more than 7 years and presuming that he was not alive, the first defendant claiming to be the owner of the suit property and deriving right, title and interest under the Will dated 11.09.1997, executed by the plaintiff, chose to settle the property on her son, the second defendant. Subsequently, the plaintiff returned home and on coming to know that his wife had executed a settlement deed in favour their son, the plaintiff cancelled the Will executed in favour of his wife on 04.05.2011 and thereafter, filed the suit in O.S.No.118 of 2012 for the reliefs, which have been set out hereinabove. 3. Pending the suit, on 20.11.2012, the plaintiff executed a Will in favour of his daughters, who are the petitioners in I.A.Nos.894 and 895 of 2015, filed to restore the suit, seeking to im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heirs of the plaintiffs and the suit cannot be proceeded on the original cause of action on which the suit was filed by the plaintiff. Further, the learned counsel for the revision petitioners would also submit that the suit was dismissed for default and not as abated and therefore, both the I.As filed by the daughters were not maintainable in law. She would also bring it to my notice that pursuant to the trial Court allowing the said applications in I.A.Nos.894 and 895 of 2015, the daughters have also filed an application in I.A.No.576 of 2017, seeking amendment of the plaint and such conduct would clearly demonstrate that the daughters were not in a position to prosecute the suit on the basis of the original cause of action and only to get over the same, they have chosen to take out an amendment application. 7. Finally, the learned counsel for the petitioners would conclude her submissions stating that the daughters, though being legal heirs of the deceased did not file the applications on the basis of being legal heirs, but chose to approach the Court only based on the alleged Will executed by the plaintiff, their father, on 20.11.2012 and in such circumstances, the trial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been filed only to prolong the litigation and as a legatee the daughters are well within their rights, to implead themselves in the suit, and continue the suit filed by the father. He would also submit that applications by a legal heir, who is not a party, is very well maintainable under Order IX Rule 9 C.P.C and insofar as the objection with regard to setting aside the abetment application being not maintainable, he would submit that it is only a technical objection taken by the defendants and would therefore, pray for dismissal of the revision petitions as the trial Court has applied its mind and rightly allowed both the Applications. 11. Having heard for the parties and also on going through the written notes of submissions as well as the authorities on which reliance is placed by the learned counsel for the petitioners, I proceed to adjudicate the core issue which is required to be answered. 12. The relationship between the parties is not in dispute. The plaintiff, who originally filed the suit is the father of the petitioners in I.A.Nos.894 and 895 of 2015. The first defendant is wife and the second defendant is the son of the plaintiff. It is the specific case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not filed in time, the suit had abated and therefore, the application for setting aside the abatement had become necessary. 15. The said applications were resisted by the revision petitioners, who filed a detailed counter affidavit, admitting the fact that the respondents 1 and 2 were living in Chennai and Bangalore and protesting on the ground that the cause of action did not survive for the respondents 1 and 2, ie., the daughters and according to the revision petitioners, the respondents 1 and 2 were very much aware of the settlement deed executed by the first defendant in favour of the second defendant and that the cause of action was not available to the respondents 1 and 2 at the time of filing of the suit and therefore, the respondents 1 and 2 cannot be impleaded, when the cause of action for the respondents 1 and 2 could at best arise only on the execution of the Will, dated 20.11.2012, in their favour. 16. The trial Court allowed the said applications finding that the authorities relied on by the revision petitioners were actually in favour of the respondents 1 and 2. At the outset, I would like to clear one very common misconception. The terms legal heirs and l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. 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.. With regard to the contention of the learned counsel for the petitioners that the respondents 1 and 2 have to prove the Will in their favour before becoming entitled to prosecute the suit, I am unable to accept the said argument for the simple reason that the language emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermining the question. 19. The learned counsel for the revision petitioners would submit that it was always open to the respondents 1 and 2, to file a fresh suit and work out their remedies. Unfortunately, I am unable to accept the said submission of the learned counsel for the revision petitioners, 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. This is one classic case, where the Court has to necessarily ensure the lis is put to end. Admittedly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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