From the above discussion, the following principles can be deduced:--
1) Where any of the parties to a suit appeal dies during the pendency of the suit appeal, steps to bring his legal representatives on record have to be taken in terms of the provisions of Order 22 of the Code of Civil Procedure.
2) Where no steps are taken to bring the legal representatives on record under Rule 3 or 4 of Order 2 and the suit/ appeal has abated and/ or where the attempt to have the order of abatement set aside and bring the legal representatives of the deceased party on record failed, the defaulting party has to take the consequences mentioned in Rule 9 of Order 22 and he cannot be allowed to have recourse to the general provisions of Order 1, Rule 10, C.P.C. for impleading the legal representatives of the deceased party by circumventing the provisions of the said Order 22.
3) An application under Order 1, Rule 10, C.P.C. to implead a necessary party (including a legal representative of a deceased party to the suit/ appeal which has abated due to not bringing on record the legal representatives of the deceased party) can be filed in a suit appeal to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, provided the proposed party has an independent right or obligation dehors his position as legal representative of the deceased defendant.
4) An administration/partition suit does not abate as a whole due to not bringing on record the legal representative of a deceased party (co-sharer/ co-owner) as each party is in the position of the plaintiff and the heirs of the deceased co-sharer -- co-owner is a necessary party to the suit, he can come on record on his application under Order 1, Rule 10, C.P.C.
Andhra High Court
Morasa Anjaiah vs Kondragunte Venkateswarlu ... on 3 February, 1992
Equivalent citations: AIR 1993 AP 156, 1993 (1) ALT 57
Bench: S S Quadri, M R Reddy
1. The question that arises in these civil revision petitions is; whether a party to a suit or proceeding, who fails to bring on record the legal representatives under O.22, R. 4, or whose application under the said provision has been dismissed, can have recourse to the provisions of O.1, R. 10 C.P.C. to implead the legal representative of the deceased party.
2. In C.R.P. No. 3389 of 1987 the above-said question arose for consideration of a learned single Judge of this Court who felt that in view of the importance of the question the case has to be decided by a Division Bench for an authoritative pronouncement on the question.
3. As C.R.P. No. 3390 of 1987 arises out of the same suit and raises the same question, it was directed to be posted along with C.R.P. 3389 of 1987.
4. The respondent in the first mentioned C.r:P. filed O.S. 48 of 1984 on the file of the Subordinate Judge, Anakapalli for partition of the suit properties. Defendants 1 to 3 therein are the co-sharers. Defendants 14 to 13 are the tenants of various extents of agricultural lands which are subject matter of the suit. The 14th defendant is an alienee of the suit lands which were in possession of the 4th defendant as tenant. During the pendency of the suit the 4th defendant died on 19-12-1983. No steps were taken to bring on record the legal representatives of the 4th defendant under Order 22, Rule 4, C.P.C. However an application under O.1, R. 10, C.P.C. (I.A. No. 553 of 1934) was filed to implead respondents 2 and 3 herein as defendants 15 and 16 in the suit. That application was opposed by the 14th defendant. While the I.A. was pending, the 14th defendant also died on 9-9-1985 leaving the revision-petitioners as legal representatives being his legatees. On 29-11-1985 a memo was filed in the trial Court intimating the death of the 14th defendant after giving notice of the same to the counsel for the plaintiff. No steps were however taken to bring on record the legal representative of the 14th defendant. On 3-7-1986 the plaintiff filed I.A. No. 254 of 1986 under O. 1, R. 10, C.P.C. to implead the revision-petitioner as 17th defendant. Both these petitions were allowed by a common order dated 12-10-1987.
5. One of the proposed parties (who was impleaded as 17th defendant in the suit) filed C.R.P. 3389 of 1987 against the order in I.A. No. 254 of 1986 and C.R.P, 3390 of 1987 against the order in I.A. No. 559 of 1984.
6. C.R.P. No. 2325 of 1987:-- The revision-petitioner filed O.S. No. 291 of 1980 on the file of the Additional Munsif-Magistrate, Addanki for a permanent injunction against one K. Venkateswarlu (who died during the pendency of the suit) and respondents 2 to 4. In the said suit he filed I.A. No. 1254 of 1987. under O.1, Rule 10 read with Sec. 151, C.P.C. for impleading the proposed 4th respondent who is the son of the deceased 1st defendant. The proposed defendant contested the application. By order dated 24-8-1987 the learned Additional District Munsif, Addanki dismissed the application. Aggrieved by the said order in the I.A. the plaintiff-petitioner filed this revision petition. As the same question is raised in this revision petition, it was directed to be posted along with C.R.Ps. Nos. 3389 and 3390 of 1987.
7. C.R.P. No. 2260 of 1988:-- The revision-petitioner is the plaintiff in O.S. N'o. 141 of 1983 on the file of the District Munsif, Penukonda. He filed the suit, for declaration of title to and for possession of the suit property. During the pendency of the suit defendants 1 and 4 died, but their, legal representatives were not brought on record in time. The petitioner filed two interlocutory applications (I.A. No. 407 of 1987 to condone the delay in bringing the L.Rs. on record, and I.A. No. 408 of 1987 to bring the L.Rs. on record). On 23-11-1987 the two I.As. were dismissed and that order has become final. The petitioner then filed I.A. No. 84 of 1988 under Order 1, Rule 10 read with S. 151, C.P.C. to implead the L. Rs. as defendants uv the suit. In 6-6-1988 the trial court dismissed the said I.A. Challenging the correctness of the order the plaintiff filed this revision petition.
8. Sri M. V. Suresh Kumar, the learned counsel for the petitioner in C.R.Ps. 3389 of 1987 and 3390 of 1987, contended that when a specific provision is made in the Code of Civil Procedure for bringing the legal representatives of a deceased defendant on record, the plaintiff either having lost in the proceedings under 0.22, R. 4, C.P.C. or having not taken steps under the said Order, cannot resort to the general provision of O. 1, R. 10, C.P.C. for bringing on record the L.Rs. of the deceased defendant.
9. Sri G. V.L. Narasimha Rao, the learned counsel for the petitioner in C.R.P. No. 2325 of 1987, contended that the rules of procedure contained in the Code of Civil Procedure are not penal provisions and merely because the plaintiff failed to take steps' under O.22, R. 4, C.P.C. to bring on record the L.Rs. of the deceased-defendant, he cannot be precluded or barred from filing application under Order 1, Rule 10, C.P.C. to implead the L.Rs. of the deceased defendant and that application has to be considered on its own merits and if the proposed party is a necessary party he ought to be impleaded. The same contention is urged by Ms. A. Chaya Dcvi, the learned counsel for the petitioner in C.R.P. No. 2260 of 1988.
10. As in the above revision petitions the respondents are not represented, we asked Mr. S. Sreenivasa Reddy, Advocate, to assit the Court. The learned counsel contended that the Rules of Procedure contained in the Code of Civil Procedure are themselves intended to do justice to all the parties to the litigation; if a particular provision is applicable, the parties have to seek the remedy under the said provision and one provision cannot be so invented as to circumvent or set at naught the other provisions of the Code.
11. To appreciate the contentions of the learned counsel for the parties, it would be appropriate to refer to the relevant provisions of the Code of Civil Procedure. Order 22 deals with the situation which arises due to the death, marriage and insolvency of parties to a suit. Rule 1 of the said Order declares that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Rule 2 says that where there are more plaintiffs or defendants than one, and any one of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants' alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. Sub-rule (1) of Rule 3 deals with the situation where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff .or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Sub-rule (2) of the said Rule says that if within the time limited by law (90 days) no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned and on the application of the defendant the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. Rule 4 deals with the procedure in case of death of one of several defendants or of sole defendants. As this provision is relevant for our purpose, We shall read it here:
"O.22, R. 4. Procedure in case of death of one of several defendants or of sole defen- dant:--
(1) Where one of 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 representatives of the deceased defendant 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, and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefor in the limitation Act, 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 within 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."
This Rule says that where one of two or more defendants dies and the right to sue does not surive against the surviving defendant ordefen-dants 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 L.Rs. of the deceased defendant to be made a party and shall proceed with the suit. If no application is made under sub-rule (1) of the said Rule, the suit shall abate against the deceased defendant. The amendments Act of 1976 amended sub-rules (4) and (5). The amended sub-rule (4) provides for exempting the plaintiff from the necessity of substituting the L.Rs. of any such defendant who has failed to file a written statement or having filed it, has remained ex parte at the hearing, and it is further provided that notwithstanding the death of such defendant, judgment may be pronounced against him which shall have the same force and effect as if it has been pronounced before his death; Before amendment of sub-rule (5) plaintiff's ignorance of the death of the defendant was not considered as sufficient cause. The amendment takes note of the fact of the plaintiff's ingornace of the death of the defendant and provides that where the plaintiff was ignorant of the death of the defendant and for that reason could not make an application for the substitution of the L.Rs. within the period specified in the Limitation Act, 1963 and the suit has consequently abated and the plaintiff applies for setting aside the abatement and also for the admission of that application to bring the L.Rs of the deceased defendant under Section 5 of the Limitation Act on the ground that by reason of such ignorance he has sufficient cause for not making an application within the period specified in the said Act, the court shall have due regard to the fact of such ignorance, if proved.
12. Rule 9 deals with the effect of abatement or dismissal and may be read here:
Order 22, Rule 9 : Effect of abatement or dismissal:--
(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of Section 5 of the Indian Limitation Act, 1877, shall apply to applications under sub-rule (2); (See the Limitation Act, 1963, Ss. 4 and 5).
Explanation:-- Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order."
13. Sub-rule (1) of Rule 9 bars a fresh suit on the same cause of action where a suit abates or is dismissed under Order 22. Sub-rule (2) enables the plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff to apply for an order to set aside the abatement. or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court is required to set aside the abatement or the dismissal upon such terms as to costs or otherwise as it thinks fit. The provisions of Section 5 of the Limitation Act are made applicable to application under sub-rule (2). The Explanation added to this rule by Amendment Act of 1976 declares that nothing in Rule 9 shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under Order
22. Thus, it is seen that Order 22 contains exhaustive provisions in the event of death of parties to the suit, the procedure to bring the L. Rs. on record and the effect of not bringing the L. Rs. on record.
14. Rule 10 of Order 1, C.P.C. which deals with parties to the suit is in the following terms:--
"O.I, R. 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 necesssary 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 thinks fit.
(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 tke 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 think fit, on the original defendant.
(5) Subject to the provisions of the Indian Limitation Act, 1877, S.22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons (Vide new Sec. 21 of the Indian Limitation Act, 1963).
Sub-rule (1) deals with the situation where a suit has been instituted in the name of a wrong person as plaintiff or where it is doubtful whether it is instituted in the name of the right plaintiff, and empowers the Court for substitution or addition of any person as plaintiff, if it is satisfied that there was a bona fide mistake and for the determination of the real matter in dispute the substitution is necessary. Sub-rule (2) empowers the Court to strike out the name of any party improperly joined, or add the name of any person whose presence before the Court may be necessary to enable the Court effectually and completely to adjudicate upon and settle the questions involved in the suit. In other words, under sub-rule (2) the Court has discretion to implead necessary or proper parties to the suit.
15. It may be noted that the Rules of Procedure contained in the Code of Civil Procedure have been enacted to do justice to the parties before the Court. The provisions of the Orders and the Rules do not affect the inherent powers of the Court. But the inherent powers can be invoked only when there is no specific provision in the Code.
16. We shall no refer to the cases cited at the Bar. M. Ramakrishna Reddi v. R. Narasimha Reddi, AIR 1932 Mad 527:-- In that case a Division Bench of the Madras High Court held that where a respondent's legal representative withes to come on record, he should apply by a petition under Order 22, Rule 4, but he nwd not apply for setting aside the abatement because it was the appellant's appeal that abated against him. But however, the Court while allowing the petition filed by bim under Order 22, Rule 4 set aside the abatement, (probably under the inherent power of the Court).
17. Mahommedally v. Safiabai, AIR 1940 PC 215. That case arose of a suit for administration. One of the defendants in the said suit died, but no application was made by the plaintiff to bring his heirs on record. However, the legal representative herself filed an application to come on record in place of her mother. That application was allowed under Order 1, Rule 10, C.P.C. It was held:
"Their Lordships are of opinion that it is open to the Judge in his discretion under Order 1, R. 10, to add as party to the suit the representative of a person against whom the suit has abated for the purpose of giving effect to the rights of the parties. The contention that the plaintiff's suit had abated as a whole is fundamentally mistake."
18. Provat Chandra v. Rabindra Nath, That case also arose out of a partition suit. In that case the defendant died but the plaintiff failed to bring his representatives on record. However, the legal representative of the defendant filed an application for setting aside the abatement and for bringing him on record as legal representative of the deceased defendant. A learned single Judge of the Calcutta High Court held that the legal representative of the deceased defendant was not entitled to make an application to set aside an abatement, even if the suit was a partition suit and that the Court had inherent power to set aside the abatement; in partition suit the defendant or his legal representative was equally interested as the plaintiff in having the properties in the suit partitioned. The application was ordered.
19. Jamuna Rai v. Chandradip Rai , is also a case
which arose out of a partition suit. An appeal was filed against the preliminary decree before the High Court of Patna. One of the appellants died during the pendency of the appeal, but no application was filed under Order 22, Rule 3 for substitution of his legal representative within 90 days and no application was filed within 60 days after abatement under Order 22, Rule 9, C.P.C. to set aside the abatement. However applications were filed under Order 22, Rule 10 and under O.1, R. 10, C.P.C. by the heirs of the deceased-appellant. It Was held by a Division Bench of the Patna High Court that the whole appeal had abated and that the legal representatives of the deceased appellant could not be added as parties to the appeal under Rule 10 of Order 1 by circumventing the provisions of Rule 3 of Order 22, C.P.C.
20. In Union of India v. Ram Charan, the respondent in the appeal before the Supreme Court filed a suit for recovery of money. That was decreed. While an appeal against the said decree was pending in the High Court of Punjab, the respondent died. The Union of India, the appellant, filed an application under Order 22, Rule 4 read with Section 151, C.P.C. to bring the legal representatives of the deceased-respondent, on record. The High Court held that the appellant failed to show that it was prevented by any sufficient cause from continuing the appeal, and dismissed the application and the appeal. On further appeal to the Supreme Court by Special Leave, it was observed at page 219:
"We may say at once that there is no force in the forth point (namely, the Court itself has inherent power to add legal representatives to do full justice to the party). The Court is not to invoke its inherent powers under S. 151, C.P.C. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatment is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time."
It may be useful to refer to the following observation of the Supreme Court in that case,
"Rules 3 and 4 of O. XXII, C.P.C. lay down respectively the procedure to be followed in case of death of one of several plaintiffs when the right to sue does not survive to the surviving plaintiffs alone or that of the sole plaintaiff when the right to sue survives or of the death of one of several defendants or of sole defendant in similar circumstances. The procedure, requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit. It does not say who is to present the application. Ordinarily it would be the plaintiff as by the abatement of the suit the defendant stands to gain. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates so far as the deceased plaintiff is concerned or as against the deceased defendant. The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on other
considerations..... The consequence of the abatement of the suit against the defendant is that no fresh suit can be brought on the same cause of action. Sub-rule (I) of Rule 9 bars a fresh suit. The only remedy open to the plaintiff or the person claiming to be the legal representative of the deceased plaintiff is to get the abatement of the suit set aside and this he can do by making an application for that purpose within time."
21. In view of this decision of the Supreme Court, the judgment of the Madras High Court in M. Ramakrishna Reddi v. R. Narasimha Reddi (supra) and the judgment of the Calcutta High Court in Provat Chandra v. Rabindra Nath (supra), in so far as they held that the Court has inherent power to set aside the abatement, are no longer good law.
22. In B. Venkataperayya v. (5. Adi-lakshamma (1971) l An WR 94, Kondalah, J. (as he then was) held that notwithstanding the facts that a plaintiff or appellant omits or fails to implead the proposed legal representatives as parties, the legal representatives, were not barred from coming on record by themselves if they want to contest the suit or appeal on behalf of the deceased party. In that case the revision arose out of a partition suit. The 4th defendant in the suit died. After the prescribed time the plaintiff filed applications to bring the legal representatives of the deceased 4th defendant on record, one for condoning the delay in filing an application to bring the L.Rs. on record and another for setting aside the abatement. The legal representatives of the 4th defendant also filed an application to implead them as defendants stating that they are necessary parties to the suit. The trial Court dismissed the applications filed by the plaintiff to bring the legal representatives on record and the other allied applications and allowed the application filed by the legal representatives of the 4th defendant to implead them as parties under Order 1, Rule 10, C.P.C. Those orders were questioned before the learned Judge.
23. In K. Ramayyav. C. Chennarayappa, (1974) 1 An WR 149 the question before Ramachandra Rao, J. (as he then was) was whether in a partition suit if the plaintiff fails to bring on record the legal representatives of one deceased co-sharer (defendant) under the provisions of Order 22, can he file an application under O.1, Rule 10, C.P.C. to implead them as parties. The learned Judge answered the question in affirmative holding that the legal representatives of the deceased co-sharer could be impleaded as parties under O.1, R. 10, C.P.C. in a suit for parties without invoking the provisions of Order 22, Rules 3 and 4, C.P.C.
24. In Khalil Ahmad v. Addl. District Judge, Gorakhpur, , the suit was filed for redemption of mortgage.
During the pendency of the suit one of the mortgages-defendants died and the application for bringing the heirs under Order 22, Rule 4, C.P.C. was dismissed as time barred. Then an application was moved under Order 1, Rule 10, C.P.C. to implead the legal representatives of the deceased defendant as party-defendants. A Division Bench of the Allahabad High Court held that the order of the trial Court allowing the petition does not suffer from any error of law or jurisdiction. It held that Order 22, Rule 4 gives a party a right to get the legal representatives brought on record; Rule 9 of Order 22 bars the institution of a fresh suit on the same cause of action; The effect of Rules 4 and 9 of Order 22, C.P.C. is to abate the suit against the deceased and to take away the plaintiff's right to institute a fresh suit against his legal representatives; this however does not mean that the suit cannot continue with the parties as they remain and are subsequently added under some other provision of law, and that Order 22, Rule 9, C.P.C. affects the rights of a party but does not take away the right of the Court to bring on record any person whom the Court considers necessary for effectually adjudicating upon and settling of the question involved in the suit. This judgment was followed by another learned single Judge of the same High Court in Farooq v. Moti Lal, . Seetharam Reddy, J. (as he then was) in K.
Savithri v. Chinayamma, 1988 (1) ALT 528, held that on an application under O.1, Rule 10, C.P.C. the legal representatives of the plaintiff in a mortgage suit can be brought on record even though the application to bring on record the legal representatives of the deceased was dismissed on the ground of laches.
25. In Bhagwan Swaroop v. Mool Chand, the matter
arose out of a partition suit. After preliminary decree was passed but before passing of the final decree, respondent No. 1 died. As no steps were taken to being on record the legal representatives of the said respondent within the specified lime, the 2nd respondent moved an application to dismiss the appeal stating that it had abated for not bringing the legal representatives of the 1st respondent on record, At that stage the appellants moved an application under Order 22, Rule 4, C.P.C. The son of the deceased 1st respondent filed an application under Order 1, Rule 10, C.P.C. to implead him as the legal representative of the deceased 1st respondent. A Division Bench of the Rajasthan High Court before which the appeal came up for hearing rejected the application filed under Order 22, Rule 4 as barred by limitation. It also dismissed the application under Order 1, Rule 10, C.P.C. filed by the son of the deceased 1st respondent holding that the said provision cannot override the specific provision of Order 22, C.P.C. oB appeal to the Supreme Court by Special Leave, D.A. Desai, J. observed that the laws of procedure are devised for advancing justice and not for imposing penalties. He referred to the observation of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah, that a code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties, not a thing designed to trip people up. The learned Judge found the approach of the High Court as hypertechnical after holding that the appellants were negligent in moving the proper application and that they knew about the death of the deceased respondent, though he agreed with the finding of the High Court and approved the contention that when a specific provision is made as provided in O. 22, R. 4. a resort to the general provision like O. 1, R. 10 may not be appropriate.
Justice A.N. Sen who delivered the concurring judgment has observed:
"Civil Procedure Code requires that in the event of death of a particular, party, heirs and legal representatives of the deceased have to be brought on record within a particular period, provided the cause of action survives. If the legal representatives are not brought on record within the stipulated period, certain consequences follow and the action abates either wholly or partially depending on the facts and circumstances of a particular case. The Code further provides that an application may be made for setting aside the abatement within a stipulated period.
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It is further to be borne in mind that when a suit or an appeal abates, a very valuable right accrues to the other party and such a right is not to be ignored or interfered with lightly in the name of doing substantial justice to the party, as depriving a party of a lawful right created in the interest of administration of justice in the absence of good grounds results in injustice to the party concerned.
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In such cases, a party guilty of negligence or laches must bear the consequences of his laches and negligence and must suffer. In appropriate cases, taking into consideration all the facts and circumstances of a case, the Court may set aside the abatement, even if there be slight negligence or minor laches in not making an application within the time provided an overall picture of the entire case, requires such course for furthering the cause of justice. When negligence and laches are established on the part of the party who seeks to set aside the abatement, the application of such a party should be entertained only in the rarest of cases for furthering the ends of justice only and on proper terms."
It is in view of these observations which are referred to in the order of reference by the learned single Judge, the case is referred to the Division Bench.
26. From the above discussion, the following principles can be deduced:--
1) Where any of the parties to a suit appeal dies during the pendency of the suit appeal, steps to bring his legal representatives on record have to be taken in terms of the provisions of Order 22 of the Code of Civil Procedure.
2) Where no steps are taken to bring the legal representatives on record under Rule 3 or 4 of Order 2 and the suit/ appeal has abated and/ or where the attempt to have the order of abatement set aside and bring the legal representatives of the deceased party on record failed, the defaulting party has to take the consequences mentioned in Rule 9 of Order 22 and he cannot be allowed to have recourse to the general provisions of Order 1, Rule 10, C.P.C. for impleading the legal representatives of the deceased party by circumventing the provisions of the said Order 22.
3) An application under Order 1, Rule 10, C.P.C. to implead a necessary party (including a legal representative of a deceased party to the suit/ appeal which has abated due to not bringing on record the legal representatives of the deceased party) can be filed in a suit appeal to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, provided the proposed party has an independent right or obligation dehors his position as legal representative of the deceased defendant.
4) An administration/partition suit does not abate as a whole due to not bringing on record the legal representative of a deceased party (co-sharer/ co-owner) as each party is in the position of the plaintiff and the heirs of the deceased co-sharer -- co-owner is a necessary party to the suit, he can come on record on his application under Order 1, Rule 10, C.P.C.
27. Applying the abovesaid principles, C.R.Ps. Nos. 3389 and 3390 of 1987 have to be allowed. Though the cases arise out of a partition suit, the 4th defendant who died during the pendency of the suit was not the co-sharer, but the tenant of the suit land, and no steps were taken to bring on record his legal representatives under Order 22, Rule 4, C.P.C. The suit, therefore, abated against him. That abatement continues, so without having the abatement setting aside, the legal representatives cannot be impleaded under Order 1, Rule 10, C.P.C. circumventing the provisions of Order 22. For the same reason, the legal representative of the 14th defendant cannot be impleaded. For these reasons the common order dated 12-10-1987 in LA. No. 254 of 1986 and I. A. No. 558 of 1984 is set aside and the civil revision petitions are allowed.
28. C.R.P. No. 2325 of 1987:-- The suit out of which the revision arises is for a permanent injunction as the legal representatives of the deceased 1st defendant were not brought on record by having recourse to the provisions of Order 22, Rule 4, C.P.C., the plaintiff cannot circumvent those provisions by having recourse to Order 1, Rule 10, C.P.C. The learned Additional District Munsif, Addanki, was, therefore, right in dismissing I.A. No. 1254 of 1987 on 24-8-1987. We find no reason to interfere in the said order. The revision petition is, therefore, dismissed.
29. C.R.P. No. 2260 of 1988:-- This revision petition arises out of a suit filed for declaration of title to and for possession of the suit property. The legal representatives of defendants 1 and 4 who died during the pendency of the suit were not brought on record within the stipulated time and the applications filed to condone the delay in filing the application in bringing the legal representatives on record and the application to bring the legal representatives on record were dismissed on 23-11-1987. The order under revision was passed on I. A. No. 84 of 1988 filed under O.1, R. 10, C.P.C. read with S. 151, C.P.C. to implead the legal representatives of the said defendant. That application was dismissed on 6-6-1988. Having regard to the principles laid down above, the order under revision does not suffer from any error of law much less of jurisdiction to warrant interference of this Court. The revision petition is, therefore, dismissed.
30. Before parting with the cases, we would like to record our appreciation for the assistance rendered by Sri S. Sreenivasa Reddy as amicus curiae.
31. The parties to bear their own costs in all the revision petitions.
32. Order accordingly.
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