In Mahomedally Tyabally v. Safia-bai reported in 45 Cal WN 226 : (AIR 1940 PC 215) the court held that an administration suit does not wholly abate by reason of its abatement against a defendant co-heir whose interest is same as the plaintiff. The suit may go on against the other defendants, but the Judge acts within his rights and in the exercise of proper discretion under Order 1, Rule 10 to add the representative of the deceased defendant, whose interest in the estate is not affected under any provision of Order 22 by the abatement of the plaintiff's suit as against their predecessor.1
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.
2. The plaintiffs Nos. 1 and 3 filed another application in the suit for substitution of the heirs and legal representatives of the aforesaid deceased parties after setting aside abatement. The said application was rejected by the trial court and an appeal therefrom was also dismissed. Thereafter on May 16, 1975, an application under Order 1 Rule 10 (2) of the Civil P. C. was filed for addition of the heirs and legal representatives of plaintiff No. 2 and defendant No. 2 in the present proceedings. This application has been allowed by the order impugned in this Rule.
3. Mr. Saha appearing for the defendants-petitioners has submitted that in the aforesaid circumstances it was not open to the court to allow an application adding the heirs and legal representatives of some deceased parties in the suit after the suit has abated in respect of the aforesaid parties. He has referred to the decision (Union of India v. Ram Charan) in which it was observed that the court is not to invoke its inherent powers under Section 151 of the Code for the purposes of impleading legal representative of a deceased respondent after the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representative of the deceased on record and when its application for setting aside abatement was not allowed on account of its failure to satisfy the court that there was sufficient cause for not impleading the legal representative of the deceased in time and for not applying for setting aside of the abatement within time. He has also referred to the decision in Rameswar Prasad v. Syam Beharilal in which the court also held that the
discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as the deceased party is concerned. The court further observed that it had also wide discretion to pass such decrees and orders as the interests of justice demanded and such power is to be exercised in exceptional cases when its non-exercise would lead to difficulties in the adjustment of rights of the various parties. But not in case where the negligence of the appellant has resulted in abatement,
3-A. Mr. Dutta Gupta appearing for the opposite parties has submitted, on the other hand, that court has ample power in the interest of justice to allow an application under Order 1, Rule 10 (2) of the Civil P. C. in appropriate circumstances adding any person whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. He has referred to the decision in Lakhmichand v. Kachubhai reported in (1911) ILR 35 Bom 393 in which it was held that even when there was an abatement and the application for setting aside abatement was also not made within 60 days, in a partition suit all the parties should be before the court and that there was nothing in the C. P. C. limiting or affecting the inherent power of the court to make such orders as may be necessary for the ends of justice and in that case the parties were accordingly added in the proceeding. Reliance was also placed on the decision in Provat Chandra v. Rabindra Nath where it was held that even though the defendant has been given no power to make an application to set aside the abatement, the court has inherent power to set aside abatement and to enable the suit to be proceeded with and accordingly the court should exercise the inherent power to save the parties, the trouble and costs of a second partition suit and traverse the grounds already traversed. The court further held that the power under Order 1, Rule 10 of the Code of Civil Procedure is very extensive and there is no limitation curtailing or restricting the power of the court to add parties under Order 1, Rule 10 of the Code. In exercise of the power under this Rule, the court has power and should exercise that power to save a partition suit which has abated. Reliance was also placed on the decision in Khalil Ahmad v. Addl. District Judge, Gorakhpur in which it was observed that the court has been given the power to implead any person as a party when such implead-ment is necessary to enable the court to effectually adjudicate upon the questions involved in the suit. The inaction of the plaintiff to implead or bring on record a person as defendant in time cannot affect the court's power under Order 1 Rule 10 (2) of the Code. This was a euit for redemption of mortgage and one of the mortgagees died during the pendency of the suit and his heirs were not impleaded by the plaintiffs who were seeking redemption. An application was made beyond time under Order 22, Rule 4 of the Civil P. C. but that application was dismissed as time barred. The court referred to Supreme Court decision in Razia Begum v. Anwar Begum, in which it was
observed that the question of addition of parties under Order 1, Rule 10 of the Civil P. C. is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case and accordingly there was no question of jurisdiction for interference. In the Allahabad case it was further observed that if necessary conditions exist, the court has power to direct impalement of any person and inaction of a plaintiff cannot abate the right of the court to implead him as a party in the suit in exercise of its jurisdiction under Order 1, Rule 10 (2) of the Civil P. C.
4. In Mahomedally Tyabally v. Safia-bai reported in 45 Cal WN 226 : (AIR 1940 PC 215) the court held that an administration suit does not wholly abate by reason of its abatement against a defendant co-heir whose interest is same as the plaintiff. The suit may go on against the other defendants, but the Judge acts within his rights and in the exercise of proper discretion under Order 1, Rule 10 to add the representative of the deceased defendant, whose interest in the estate is not affected under any provision of Order 22 by the abatement of the plaintiff's suit as against their predecessor.
5. Further, Order 1, Rule 10 (2) of the Code gives power to court at any stage of the proceedings (1) to strike out the name of a party improperly joined whether as plaintiff or defendant or (2) to add the name of a person who ought to be joined whether as plaintiff or as 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 questions involved in the suit. This power can be exercised upon or without application by any party.
6. It appears that such power can be exercised when a party, whose presence before the court may be considered necessary, is not joined at all as a party in the proceedings. The provisions do not in my opinion apply when by operation of other provisions of the Code the suit has abated in respect of a party properly joined and attempt to bring his heirs and legal representatives on record has failed by an order of court. It cannot be said that provisions of Rule 10 (2) override other provisions of the Code. The decisions refer to the case where there has been an abatement but no steps have been taken for setting aside abatement by inaction of the plaintiff and not to eases where the court has refused to set aside abatement on merits.
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. The authorities cited above in respect of such suits, accordingly, in my opinion, do not have any material bearing in the facts of the case we are concerned with which is a suit for declaration of sixteen annas title to the suit property and perpetual injunction. In this proceeding, we have already noted that the applications for substitution after setting aside abatement was made and rejected as a result whereof the suit was bound to abate in respect of the deceased persons. The court did not find any sufficient reason for setting aside the abatement caused by the deaths of the aforesaid parties in rejecting the applications for substitution after setting aside the abatement. If the plaintiffs are now permitted to bring on record the legal representatives of the deceased persons on the face of such rejection in this suit, it will not be a proper or fair exercise of the jurisdiction but an exercise of jurisdiction with material irregularity on the part of the court to allow such application in exercise of its power either under Section 151 of the Civil P. C. or under Order 1 Rule 10 (2) of the Civil P. C. Further there may be serious questions of limitation involved in respect of the claims for declaration as made in the suit. I am accordingly of the opinion that in such circumstances when once the application for substitution after setting aside abatement caused by the deaths of some parties in a suit is rejected on merits the plaintiff will not be permitted to circumvent the position caused by operation of law to add them as parties by invoking the aid of Order 1. Rule 10(2) of the Civil P. C. or of Section 151 of the Code.
8. Mr. Dutta Gupta has next contend-ed that some of the heirs of the plaintiff No. 2 were minor at the material time and they should not suffer prejudice on account of the inaction of other plaintiffs. He has drawn my attention to Section 6 of the Limitation Act which excludes for the purpose of limitation the period of disability of a minor amongst others. He further submitted that in view of this position, the court had rightly allowed the application under Order 1, Rule 10 (2) of the Code and added the legal representatives of the deceased parties as parties in the suit It would further appear that this application under Order 1, Rule 10 (2) of the Code was filed by the other two plaintiffs, namely, plaintiffs 1 and 3 who did not suffer from any disability. Accordingly, the plea of disability cannot be invoked by these plaintiffs. If there are minors, they are certainly entitled to take appropriate steps after the cessation of their disability and in such cases, the court would reconsider the position if and when such applications are filed by such minors within the time permitted by law after cessation of their disability. That is not the position here.
9. Mr. Dutta Gupta has next submitted that the suit was for perpetual injunction which was a personal relief claimed against the defendants. If that is the position then there is no question or occasion for substitution of a deceased party and the suit may as well proceed in his absence, his legal heirs and representatives not being parties to the impugned actions of the defendant. But here we have seen one of the deceased parties is a plaintiff and the above consideration does not apply to him.
10. For all these reasons, I am of the opinion that the learned Munsif erred in the exercise of his jurisdiction in allowing the application under Order 1. Rule 10 (2) of the Code. The Rule accordingly succeeds and is made absolute and the impugned order is set aside. In view of the age of the suit, let the suit be disposed of expeditiously and let the records be sent down at once. There will be no order as to costs.
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.
Calcutta High Court
Surendra Nath Sarkar And Ors. vs Manatab Monian And Ors. on 9 February, 1978
Equivalent citations: AIR 1978 Cal 344, 82 CWN 661
1. This Rule is directed against an order No. 102 dated 3-5-1976 passed by the Munsif, Additional Court, Ranaghat, in Title Suit No. 250 of 1964 By that order, the learned Munsif allowed an application filed by the plaintiffs 1 and 3 under Order 1, Rule 10 (2) of the Civil P. C. adding the heirs and legal representatives of plaintiff No. 2 as parties to the suit. The suit was for the declaration of the plaintiffs' title in the suit properties and for injunction restraining the defendants from interfering with their possession. It appears that in course of proceedings an application for amendment of the plaint was filed by the plaintiffs which was rejected and against that decision, the plaintiffs came up in revision giving rise to Civil Revision Case No. 2633 of 1965. While this Rule was pending, the plaintiff No. 2 and defendant No. 2 died and no application for substitution was made in time in respect of the aforesaid parties. Later an application for substitution after setting aside abatement was made but it appears that the application was dismissed and by an order dated Jan. 22, 1970, this Court held that the Rule having abated so far as defendants-opposite party No. 2 was concerned, it could not effectively proceed against the remaining opposite parties. The court further noted that one of the plaintiff-petitioners was also dead and no substitution was effected in his case either and the Rule was accordingly discharged. A review application giving rise to Civil Rule No. 1732 (R) of 1970 was also discharged by this Court by an order dated 12-7-1971. It may be noted here that Mr. Dutta Gupta, learned Advocate for the opposite parties states that the application for substitution in so far as the defendant-opposite party No. 2 is concerned was made within time but unfortunately the Court's attention was not drawn to the position before the aforesaid orders were passed. In this Rule it is not possible for me to consider this statement and/or to revise the aforesaid orders on that ground.2. The plaintiffs Nos. 1 and 3 filed another application in the suit for substitution of the heirs and legal representatives of the aforesaid deceased parties after setting aside abatement. The said application was rejected by the trial court and an appeal therefrom was also dismissed. Thereafter on May 16, 1975, an application under Order 1 Rule 10 (2) of the Civil P. C. was filed for addition of the heirs and legal representatives of plaintiff No. 2 and defendant No. 2 in the present proceedings. This application has been allowed by the order impugned in this Rule.
3. Mr. Saha appearing for the defendants-petitioners has submitted that in the aforesaid circumstances it was not open to the court to allow an application adding the heirs and legal representatives of some deceased parties in the suit after the suit has abated in respect of the aforesaid parties. He has referred to the decision (Union of India v. Ram Charan) in which it was observed that the court is not to invoke its inherent powers under Section 151 of the Code for the purposes of impleading legal representative of a deceased respondent after the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representative of the deceased on record and when its application for setting aside abatement was not allowed on account of its failure to satisfy the court that there was sufficient cause for not impleading the legal representative of the deceased in time and for not applying for setting aside of the abatement within time. He has also referred to the decision in Rameswar Prasad v. Syam Beharilal in which the court also held that the
discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as the deceased party is concerned. The court further observed that it had also wide discretion to pass such decrees and orders as the interests of justice demanded and such power is to be exercised in exceptional cases when its non-exercise would lead to difficulties in the adjustment of rights of the various parties. But not in case where the negligence of the appellant has resulted in abatement,
3-A. Mr. Dutta Gupta appearing for the opposite parties has submitted, on the other hand, that court has ample power in the interest of justice to allow an application under Order 1, Rule 10 (2) of the Civil P. C. in appropriate circumstances adding any person whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. He has referred to the decision in Lakhmichand v. Kachubhai reported in (1911) ILR 35 Bom 393 in which it was held that even when there was an abatement and the application for setting aside abatement was also not made within 60 days, in a partition suit all the parties should be before the court and that there was nothing in the C. P. C. limiting or affecting the inherent power of the court to make such orders as may be necessary for the ends of justice and in that case the parties were accordingly added in the proceeding. Reliance was also placed on the decision in Provat Chandra v. Rabindra Nath where it was held that even though the defendant has been given no power to make an application to set aside the abatement, the court has inherent power to set aside abatement and to enable the suit to be proceeded with and accordingly the court should exercise the inherent power to save the parties, the trouble and costs of a second partition suit and traverse the grounds already traversed. The court further held that the power under Order 1, Rule 10 of the Code of Civil Procedure is very extensive and there is no limitation curtailing or restricting the power of the court to add parties under Order 1, Rule 10 of the Code. In exercise of the power under this Rule, the court has power and should exercise that power to save a partition suit which has abated. Reliance was also placed on the decision in Khalil Ahmad v. Addl. District Judge, Gorakhpur in which it was observed that the court has been given the power to implead any person as a party when such implead-ment is necessary to enable the court to effectually adjudicate upon the questions involved in the suit. The inaction of the plaintiff to implead or bring on record a person as defendant in time cannot affect the court's power under Order 1 Rule 10 (2) of the Code. This was a euit for redemption of mortgage and one of the mortgagees died during the pendency of the suit and his heirs were not impleaded by the plaintiffs who were seeking redemption. An application was made beyond time under Order 22, Rule 4 of the Civil P. C. but that application was dismissed as time barred. The court referred to Supreme Court decision in Razia Begum v. Anwar Begum, in which it was
observed that the question of addition of parties under Order 1, Rule 10 of the Civil P. C. is generally not one of initial jurisdiction of the court, but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case and accordingly there was no question of jurisdiction for interference. In the Allahabad case it was further observed that if necessary conditions exist, the court has power to direct impalement of any person and inaction of a plaintiff cannot abate the right of the court to implead him as a party in the suit in exercise of its jurisdiction under Order 1, Rule 10 (2) of the Civil P. C.
4. In Mahomedally Tyabally v. Safia-bai reported in 45 Cal WN 226 : (AIR 1940 PC 215) the court held that an administration suit does not wholly abate by reason of its abatement against a defendant co-heir whose interest is same as the plaintiff. The suit may go on against the other defendants, but the Judge acts within his rights and in the exercise of proper discretion under Order 1, Rule 10 to add the representative of the deceased defendant, whose interest in the estate is not affected under any provision of Order 22 by the abatement of the plaintiff's suit as against their predecessor.
5. Further, Order 1, Rule 10 (2) of the Code gives power to court at any stage of the proceedings (1) to strike out the name of a party improperly joined whether as plaintiff or defendant or (2) to add the name of a person who ought to be joined whether as plaintiff or as 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 questions involved in the suit. This power can be exercised upon or without application by any party.
6. It appears that such power can be exercised when a party, whose presence before the court may be considered necessary, is not joined at all as a party in the proceedings. The provisions do not in my opinion apply when by operation of other provisions of the Code the suit has abated in respect of a party properly joined and attempt to bring his heirs and legal representatives on record has failed by an order of court. It cannot be said that provisions of Rule 10 (2) override other provisions of the Code. The decisions refer to the case where there has been an abatement but no steps have been taken for setting aside abatement by inaction of the plaintiff and not to eases where the court has refused to set aside abatement on merits.
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. The authorities cited above in respect of such suits, accordingly, in my opinion, do not have any material bearing in the facts of the case we are concerned with which is a suit for declaration of sixteen annas title to the suit property and perpetual injunction. In this proceeding, we have already noted that the applications for substitution after setting aside abatement was made and rejected as a result whereof the suit was bound to abate in respect of the deceased persons. The court did not find any sufficient reason for setting aside the abatement caused by the deaths of the aforesaid parties in rejecting the applications for substitution after setting aside the abatement. If the plaintiffs are now permitted to bring on record the legal representatives of the deceased persons on the face of such rejection in this suit, it will not be a proper or fair exercise of the jurisdiction but an exercise of jurisdiction with material irregularity on the part of the court to allow such application in exercise of its power either under Section 151 of the Civil P. C. or under Order 1 Rule 10 (2) of the Civil P. C. Further there may be serious questions of limitation involved in respect of the claims for declaration as made in the suit. I am accordingly of the opinion that in such circumstances when once the application for substitution after setting aside abatement caused by the deaths of some parties in a suit is rejected on merits the plaintiff will not be permitted to circumvent the position caused by operation of law to add them as parties by invoking the aid of Order 1. Rule 10(2) of the Civil P. C. or of Section 151 of the Code.
8. Mr. Dutta Gupta has next contend-ed that some of the heirs of the plaintiff No. 2 were minor at the material time and they should not suffer prejudice on account of the inaction of other plaintiffs. He has drawn my attention to Section 6 of the Limitation Act which excludes for the purpose of limitation the period of disability of a minor amongst others. He further submitted that in view of this position, the court had rightly allowed the application under Order 1, Rule 10 (2) of the Code and added the legal representatives of the deceased parties as parties in the suit It would further appear that this application under Order 1, Rule 10 (2) of the Code was filed by the other two plaintiffs, namely, plaintiffs 1 and 3 who did not suffer from any disability. Accordingly, the plea of disability cannot be invoked by these plaintiffs. If there are minors, they are certainly entitled to take appropriate steps after the cessation of their disability and in such cases, the court would reconsider the position if and when such applications are filed by such minors within the time permitted by law after cessation of their disability. That is not the position here.
9. Mr. Dutta Gupta has next submitted that the suit was for perpetual injunction which was a personal relief claimed against the defendants. If that is the position then there is no question or occasion for substitution of a deceased party and the suit may as well proceed in his absence, his legal heirs and representatives not being parties to the impugned actions of the defendant. But here we have seen one of the deceased parties is a plaintiff and the above consideration does not apply to him.
10. For all these reasons, I am of the opinion that the learned Munsif erred in the exercise of his jurisdiction in allowing the application under Order 1. Rule 10 (2) of the Code. The Rule accordingly succeeds and is made absolute and the impugned order is set aside. In view of the age of the suit, let the suit be disposed of expeditiously and let the records be sent down at once. There will be no order as to costs.
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