It is seen therefrom that when the defendant dies and the right to sue survives the Court. on an application made in that behalf. shall cause the legal representative of the deceased defendant to be made a Party and shall proceed with the quit. When once the order is made under the above provision, the said order should be given effect to, by recording the necessary names in the cause title of the Pleadings. The Office of the Court might do it either by the, party who obtained the order or. All that is required to be done is to effect he necessary changes in the particulars of the Plaint in substituting the names of the heirs of the deceased. When such change is made or recorded. it cannot be considered, as an amendment of the plaint within the meaning and scope of 0. VI. R.17. Substitution of the legal representatives, of the deceased is made to give effect to the order made by the Court under Order XXII. Rule 3 or 4. Order VI, Rule 17 or order VI, Rule 18 of the Civil P. C., has no application to such situation.
6. My View finds support from the observation in the decision of the Bombay High Court in Aloha Vaisurbhai v. Bhutan Brava. AIR 1937 Born 401. wherein it was observed:
"It was no Part of the appellant's duty to take the necessary steps to carry out the Court's order for the substitution of the names of the heirs of the deceased respondents who were Property served with notices in order to correct the record of the Court in terms of its order. That was a ministerial function, which the Courts establishment was charged to perform. If it was not performed or neglected. the fault would not lie with the appellants."
IN THE HIGH COURT OF KARNATAKA
Civil Revn. Petn. No. 2554 of 1974
Decided On: 22.07.1975
Kariyappa Vs. Patel Rudrappa and Ors.
Hon'ble Judges/Coram:
K. Jagannatha Shetty, J.
Citation : AIR 1976 Kant 29
1. What is the duty of a party who has obtained an order from the Court under Order XXII, Rule 4 of the Code of Civil Procedure? Is it for him to correct the cause title of the plaint to give effect to the said order ? Should he file an application under. O VI, Rule 18 of the Civil P. C. for leave to amend the cause title ? These are the questions that arise for consideration in this revision petition.
2. The matter arises in this way:
One Angadi Kariyappa brought a suit for mesne profits. During the pendency of the suit. defendant 3 died. On 21st December. 1968, the plaintiff filed an application under Order XXII. Rule 4 of the Code of Civil Procedure to bring on record the legal representatives of the deceased On 22nd September. 1969, the Court allowed the application. But unfortunately nobody did the necessary correction to that effect in the cause title of the plaint. Thereafter. the suit was transferred from one Court to another. After the lapse of a couple of years. the plaintiff was informed that the names of legal representatives of the deceased defendant were not recorded in the cause title of the suit. The plaintiff. then came forward with an application under 0. VI. R. 18 of the Civil P. C. for extension of time and leave to amend the cause title so as to give effect to the order dated, 22nd September, 1969. The plaintiff probably thought that the amendment ought to have been made within fourteen days from the order dated 22nd September. 1969. and since it was not made, he could not amend the cause title without the leave of the Court as required under Order VI. Rule 18 of the Civil P. C. The Court rejected the said application on the ground that it was highly belated.
3. The validity of the said order is called into question in this revision petition.
4. The principal question that arises for consideration is whether 0. VI, Rr. 17 and 18 of the Civil P. C. are attracted after the order was made under 0. XXII, R.3 or R. 4 of the Civil P. C. The lower Court proceeded on that assumption. But, it seems to me that there is no justification for such conclusion.
5. Order XXII Rule 4 of the Civil P. C.. so far as it is relevant. provides: "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 representative of the deceased defendant to be made a party and shall proceed with the suit."
It is seen therefrom that when the defendant dies and the right to sue survives the Court. on an application made in that behalf. shall cause the legal representative of the deceased defendant to be made a Party and shall proceed with the quit. When once the order is made under the above provision, the said order should be given effect to, by recording the necessary names in the cause title of the Pleadings. The Office of the Court might do it either by the, party who obtained the order or. All that is required to be done is to effect he necessary changes in the particulars of the Plaint in substituting the names of the heirs of the deceased. When such change is made or recorded. it cannot be considered, as an amendment of the plaint within the meaning and scope of 0. VI. R.17. Substitution of the legal representatives, of the deceased is made to give effect to the order made by the Court under Order XXII. Rule 3 or 4. Order VI, Rule 17 or order VI, Rule 18 of the Civil P. C., has no application to such situation.
6. My View finds support from the observation in the decision of the Bombay High Court in Aloha Vaisurbhai v. Bhutan Brava. AIR 1937 Born 401. wherein it was observed:
"It was no Part of the appellant's duty to take the necessary steps to carry out the Court's order for the substitution of the names of the heirs of the deceased respondents who were Property served with notices in order to correct the record of the Court in terms of its order. That was a ministerial function, which the Courts establishment was charged to perform. If it was not performed or neglected. the fault would not lie with the appellants."
7. In the view that I have taken, it had to be held that the plaintiff's application under Order VI, Rule 18 of the Civil P. C. was uncalled, for.
8. Mr. M. S. Gopal, learned Counsel for the contesting respondents. urged that the suit has abated since the legal representative of the deceased Plaintiff has not been brought on record within the time allowed by law. I have no material to hold one wav or the other and I express no opinion on that contention. The respondents may raise the same before the Court below.
9. With the above observation. this petition is disposed of. without an order as to costs.
10. order accordingly.
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