Jharkhand High Court
Sumitra Devi @ Sumitra Kumari vs Chandan Munda on 13 September, 2019
Equivalent citations: AIRONLINE 2019 JHA 977, 2019 (4) AJR 478 (2019) 4 JCR 682 (JHA), (2019) 4 JCR 682 (JHA)
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGHCOURT OF JHARKHAND AT RANCHI
W.P. (C) No. 2798 of 2019
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1.Sumitra Devi @ Sumitra Kumari
2.Rajendra Mahto Petitioners Vs.
1.Chandan Munda
2.Chanchal Munda
3.Vijay Munda
4.Robin Munda
5.Sita Devi
6.Mana Munda
7.Raja Munda .... ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Dilip Kumar Prasad, Advocate Mr. Jitesh Kumar, Advocate For the Respondents : -----
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Order No. 03 : Dated 13th September, 2019 This writ petition is under Article 227 of the Constitution of India whereby and whereunder order dated 30.04.2019 passed in Misc. Civil Appeal No. 147 of 2018 arising out of Title Suit No. 139 of 2007 by which petition filed under Order I Rule 10 of the Code of Civil Procedure, by which legal heirs and successor of original plaintiff nos. 2, 7 and 11 has been allowed impleading them party to the proceeding on the ground that they are necessary parties to the suit and issues involved in the suit cannot be decided without impleadng them.
2. The brief facts of the case, as per the pleadings made in the writ petition, is that a suit has been filed by the plaintiffs/respondents against the defendants/petitioners being Title Suit No. 139 of 2007 for declaration of right, title and interest of the plaintiffs over the suit property after 2 evicting the defendants from the suit property and for other relief or reliefs, the Court deem fit and proper and further after passing of preliminary decree, for appointment of Survey Knowing Pleader Commissioner to give delivery of possession of the suit property to the plaintiffs. The contesting defendant nos. 1 and 2 have appeared and filed their written statement opposing the prayer made in the plaint. Issues have been framed and suit is pending for evidence of the defendants. Defendant Nos. 1 and 2 have filed a petition informing to the Court that plaintiff No. 2 has died on 24.10.2017 and as such plaintiffs be directed for taking proper steps, accordingly the learned Court directed the plaintiffs for taking proper steps as per law, but even after lapse of about nine months, the plaintiffs could not comply with the order, hence, the trial Court passed the order on 06.08.2018 holding therein that the suit has been abated so far plaintiff no. 2 is concerned.
3. After lapse of more than a year, petition dated 04.09.2018 under Order I Rule 10 read with Section 151 CPC was filed on behalf of heirs and legal representatives of plaintiff nos. 2, 7 and 11 stating therein that they may be added as plaintiffs to the suit, to which, rejoinder was filed on behalf of defendant nos. 1 and 2 taking the stand inter alia that the present petition is not maintainable under Order I Rule 10 read with Section 151 CPC mainly for the reason that the suit since has been abated so far as plaintiff no. 2 is concerned and as such the petition filed under Order I Rule 10 CPC has been allowed, against which, the present writ petition under Article 3 227 of the Constitution of India has been filed under its revisional jurisdiction.
4. This Court, after hearing learned counsel for the petitioner and after going across the pleadings made in the writ petition, has found there from that suit pertaining to declaration of right, title and interest to be declared in favour of the plaintiffs, in which, the defendants have appeared and filed their written statement and the case has reached to the stage of defendants' evidence and at that stage, the plaintiff no. 2 has died, as has been informed by defendant no. 1 and 2 to the Court, by way of filing a petition praying therein to direct the remaining plaintiffs to take appropriate steps for substitution through legal heirs and accordingly order was passed on 3.11.2017 but the aforesaid order has not been complied with, which resulted into passing of order dated 6.08.2018 by which the suit has been held to be abated so far as plaintiff no. 2 is concerned.
5. The legal heirs of plaintiff no. 2, 7 and 11 have filed a petition under Order I Rule 10 read with Section 151 of CPC, which was registered as Misc. Civil Appeal No. 147 of 2018 praying inter alia therein to implead them party to the proceeding since their presence in the proceeding is necessary for appropriate adjudication as also to avoid the multiplicity of proceeding.
6. The aforesaid application has been objected by filing rejoinder to the same by taking the ground therein that the surviving plaintiffs even though were fully aware of the 4 death of the plaintiff nos. 2, 7 and 11 but their heirs were not substituted as required under Order XXII Rule 3 CPC, as such the suit is abated against dead person because legal heirs have not been brought on record within the statutory period.
7. It has further been stated therein that the application filed under Order I Rule 10 CPC cannot be used where the specific provision for substitution of parties is given under the Code of Civil Procedure and as such the prayer made in the aforesaid application cannot be entertained.
8. The trial Court after taking into consideration the rival submissions of the parties and considering the scope and object of Order I Rule 10 CPC has allowed the petition by allowing the legal heirs of respondent nos. 2, 7 and 11 party to the proceeding, against which, the present writ petition has been filed.
9. This Court, after considering the factual and legal aspect of the matter, deem it fit and proper to discuss about certain provisions of law, which are relevant for its consideration, in the facts and circumstances of the case.
Order XXII contains a provision to deal with in respect of cases of death, marriage and insolvency of parties.
Rule 1, provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
The right to sue accruing in Order XXII in the CPC means the right to bring a suit asserting a right to the same 5 relief which the deceased person asserted at the time of his death.
The death of a plaintiff of defendant would not cause abatement of the suit if the right to sue survives.
Rule 2 thereof, provides the procedure where one of several plaintiffs or defendants dies and right to sue survives.
The aforesaid provision provides that where there are more plaintiffs or defendants than one, and any 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.
It is also settled that in a case under Rule 2 no application for substitution is necessary i.e., when the legal representative is already on record and the right to sue survives to the remaining plaintiff or against the surviving defendant.
Rule 3, provides the procedure in case of death of one of several plaintiffs or of sole plaintiff, which reads hereinunder as:
"3. Procedure in case of death of one of several plaintiffs or of sole plaintiff. - (1) 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 6 cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2)Where within the time limited by law 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.
It is evident from sub-rule (1) as contained under Rule 3 thereof, that 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 whereas sub-rule (2) provides that where within the time limited by law 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.
It has been held by Hon'ble Apex Court in the case of P. Chandrashekharan & Ors. Vs. S. Kanakarajan & Ors., reported in (2007) 5 SCC 669 wherein it has been held that an appeal abates automatically unless the legal heirs or representatives of the deceased plaintiff or defendant are 7 brought on record within period specified as mentioned in the Code of Civil Procedure.
Rule 4, provides procedure in case of death of one of several defendants or of sole defendant.
Order I Rule 10(2) also needs to be referred herein since under the aforesaid provision, the legal heirs of the sole plaintiff, who are the respondents herein, have filed a petition before the trial court which is the subject matter of the instant writ petition; the said provision reads hereunder as : "10.(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."
It is evident from the aforesaid provision that 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 8 effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
10. The issue of Order XXII was the subject matter before the Hon'ble Apex Court in the case of Gangadhar & Anr. vs. Shri Raj Kumar, reported in AIR 1983 SC 1202 wherein it has been laid down that Rule 10-A which has been added in Order XXII of the CPC by the Amending Act of 1976 provides that when a pleader appearing for a party to the suit comes to know about the death of the party, he shall inform the Court about it and the court thereafter shall issue notice to the other party.
In the case of an appeal, the word "suit has to be read as "appeal". This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. The appeal lies dormant for years on end one cannot expect the other party to be a watch dog for day to day survival of the other party. When the appeal on being notified for hearing is activated, knowledge occasionally dawns that one or the other party has not only died, but the time for substitution has run out and the appeal has abated.
In order to see that administration of justice is not thwarted by such technical procedural lapse, this very innovative provision has been introduced, whereby, a duty is 9 cast upon the learned Advocate appearing for the party who comes to know about the death of the party to intimate to the Court about the death of the party represented by the learned counsel and for this purpose a deeming fiction is introduced that the contract between dead client and lawyer subsists to the limited extent after the death of the client.
In the case of P. Jesaya vs. Sub-Collector, reported in 2004 (13) SCC 431it has been laid down that it is obligatory on the pleader of a deceased to inform the court and the other side about the factum of death of a party.
The Hon'ble Madras High Court while dealing with a case of C. Manoharan vs. C.V. Subramaniam & Ors., reported in 2006 (4) SCC MLJ 898it has been laid down therein by taking into consideration the judgment rendered by Hon'ble Apex Court in the case of P. Jesaya vs. Sub-Collector (supra) that the decree passed against the death person cannot be treated as nullity rather it can be construed as nullity.
Yet in another case, the Hon'ble Madras High Court has been pleased to hold in the case of Abdul Azeez Sahib vs. Chanabagiammal & Ors. as reported in AIR 1983 MAD 5 that a decree passed in favour of a death person is not a nullity, and the fact of death not brought to the notice of the Court when it passed the decree is only an irregularity and it cannot have the effect of making the decree void abinitio and the decree is executable. Where the Court proceeds with the 10 case in ignorance of the fact of death of person and passes a decree, that decree cannot be treated as a nullity. It may no doubt, be a wrong decree, but it will have to be set aside by taking appropriate proceedings like appeal, revision or review. Generally speaking, a decree passed in favour of a death person is not a nullity, though a decree passed against a dead person can be construed as a nullity. Even if there is abatement of the suit, that would make the decree passed in the suit as one without jurisdiction and executing Court is not entitled to refuse to execute the decree on the ground that the plaintiff was not alive on the date when the decree was passed in his favour.
Thus, it is evident by going across the judgment rendered by Hon'ble Madras High Court as referred hereinabove which has been taken note by Hon'ble Rajasthan High Court in the case of Jarnail Singh & Ors. vs. Saudagar Singh, reported in 2003 (3) RCR (Civil) wherein it has been held as :
"Where the Court proceeds with the case in ignorance of the fact of death of a person and passes a decree, that decree cannot be treated as a nullity. It may no doubt be a Wrong decree, but it will have to be set aside by taking appropriate proceedings like appeal, revision or review. Generally speaking, a decree passed in favour of a dead person is not a nullity though a decree passed against a dead person can be construed as a nullity. Even if there is abatement of the suit, that would not make the decree passed in the suit as one without jurisdiction and the executing court is not 11 entitled to refuse to execute the decree on the ground that the plaintiff was not alive on the date when the decree was passed in his favour."
The similar issue has also been considered in the judgment rendered in the case of Lachmi Narain Marwari vs. Balmakund Marwari, reported in 1924 AIR (P.C.) 198 wherein it has been held that after decree has been made, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have on the making of the decree acquired rights or incurred liabilities which are fixed unless or until the decree is varied or set aside.
11. The fact, which is not in dispute in this case, is that admittedly there are more than one plaintiff. Plaintiff no. 2, 7 and 11 have died on 24.10.2017, 23.09.2013 and 28.01.2015 respectively but the legal heirs and representatives of the plaintiff no. 2, 7 and 11 have not been substituted by the rest of the plaintiffs, in consequence thereof suit has abated.
12. A petition under Order I Rule 10 CPC has been filed, which has been allowed by the trial Court and in the considered view of this Court has rightly so, for the following reasons:
(i).The object of Order I Rule 10 CPC is to discourage contest on technical pleas and to adjudicate the suit by extending substantial justice.
Admittedly, herein the legal representative or the heirs of the deceased-plaintiffs have not been impleaded parties by way 12 of substitution but the question is that merely on the ground of non- substitution whether there is embargo in exercising power as conferred under the provisions of Order I Rule 10 CPC.
Order I Rule 10 of the CPC provides power upon the trial Court to add the name of a person whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit.
Therefore, object of order I Rule 10 CPC is to add party in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in a case.
Use of the words 'at any stage of the proceedings' in sub- rule(2) of Rule 10 in Order I manifests that the power vested in the Court under that provision can be exercised only when the proceedings before it are alive and still pending.
In other words, the application of Order I Rule 10 should be confined only to cases where any proceedings are pending before the Court.
The very purpose and object of this provision being to make any party a defendant or respondent, or plaintiff or appellant in a proceeding, in order to enable the Court to make an effective and complete adjudication of the questions involved in the case, when once the adjudication itself of all the disputes in the case is over, this provision cannot be made use of by any party.
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Therefore, the question of proper adjudication and substantial justice is liable to be seen that is object of sub- rule(2) of Rule 10 in Order I CPC.
(ii).Here, it is not the case of the petitioner that the heirs or legal representatives of the plaintiff nos. 1, 7 and 11 are not necessary party rather their only objection is that after the order of abetment having been passed by the trial Court, they may not be allowed to be impleaded as party to the proceeding and by allowing the same the provision of Order XXII Rule 3 will be said to be overruled.
It is settled position of law that the procedure is to be followed but when the question of substantial justice is there and the trial Court comes to the conclusion that the presence of parties are necessary for proper adjudication of the suit in order to settle the dispute at rest finally, as the case herein, if the provision of Order I Rule 10(2) CPC has been resorted to, it may not be said that illegality has been committed.
(iii).The suit is declaratory in nature and has been filed by the plaintiffs, more than one. However, during the pendency of the suit, plaintiff nos. 2, 7 and 11 have died.
The question is that when the legal heirs would not be allowed to be impleaded as party, as per the provisions made in Order I Rule 10 CPC then what would be the consequence? It will not lead to multiplicity of proceeding? Certainly, answer would be in affirmative since the legal heirs or the legal representatives or heirs of the deceased plaintiff would have to resort to the Court of law, if any decree would be operative 14 against them which will unnecessarily lead to multiplicity of proceeding and, therefore, the procedural law will not be allowed to be resorted to for protracting the litigation rather the proceeding is to have been set at rest finally.
The same view has been taken into consideration by Hon'ble Apex Court in the case of Bhagwan Swaroop and others Vs. Mool Chand and others reported in (1983) 2 SCC 132, wherein the Hon'ble Apex Court has observed that where a specific provision is made as provided in Order XII Rule 4 a resort to the general provision like Order I Rule 10 CPC may not be appropriate. But the laws of procedure are devise for advancing justice and not impeding the same.
Similarly in the case of Sangram Singh Vs. Election Tribunal, Kotah reported in AIR 1955 SC 425, the Hon'ble Supreme Court has observed that a Code of Civil Procedure is designed to facilitate justice and further its end, not a penal enactment for punishment and penalties, not a thing designed to trip people up.
Likewise, in the case of Banwari Lal Vs. Balbir Singh reported in (2016) 1 SCC 607, the Honble Supreme Court has observed that the application ought to have been filed under Order 22 Rule 4 of the Code of Civil Procedure inasmuch as the death had occurred during the subsistence of the matter before the Court and the application under Order 1 Rule 10 of the Code of Civil Procedure was not maintainable had proceeded to allow application on the ground that it would be 15 unjust to non-suit the applicant on the ground of technicalities.
Further, the Hon'ble Apex Court in the case of Mumbai International Airport (P) Ltd, reported in (2010) 7 SCC 417 has held that necessary party is a person who ought to have been joined as a party and in whose absence no effective decree would be passed.
13. This Court, after going through the pleadings made in the writ petition and findings recorded by the trial Court, has found that the trial court after taking aid of the aforesaid judgments rendered by Hon'ble Apex Court and considering the object and scope of the provision of Order I Rule 10 as also to adjudicate the issue properly, their presence are necessary, has allowed the petition filed under Order I Rule 10 CPC, therefore, is of the view that said impugned order does not warrant any interference by this Court under its revisional jurisdiction conferring under Article 227 of the Constitution of India.
14. Accordingly, the writ petition stands dismissed.
(Sujit Narayan Prasad, J.) Alankar/-