Andhra HC (Pre-Telangana)
S. Anjaneyulu vs Soorampally Venkata Rama Gupta And ... on 11 August, 1993
Equivalent citations: 1993(3)ALT607
ORDER Parvatha Rao, J.
1. The petitioner in this Civil Revision Petition questions the order of the learned Subordinate Judge at Vizianagaram in I.A.No. 1087 of 1987 in O.S. No. 129 of 1985 allowing the said LA. presented by the first respondent herein under Order 1 Rule 10 of the Code of Civil Procedure for transposing him as the second plaintiff in the said suit and permitting him to continue that suit.
2. The facts are in a brief compass. The said suit - O.S.No. 129 of 1985 - is for partition of the plaint schedule dwelling house. Defendants 1 to 4 in the said suit are the brothers of the plaintiff and defendants 5 to 7 therein are his sisters. The plaintiff died on 11-4-1987. No application was filed to bring his legal representatives on record under Order 22 Rule 3 of the Code of Civil Procedure and, therefore, the suit abated so far as the plaintiff was concerned. On 26-8-1987 the first respondent herein, who is the second defendant in the suit, filed the present application - I.A.No. 1087 of 1987. It is his case that the plaint schedule property is an ancesteral family dwelling house and that he and his brothers i.e., the deceased plaintiff, the first defendant and defendants 3 and 4 were each entitled to 1/5th share therein. According to him the legal representatives of the plaintiff joined hands with the 4th defendant in the suit i.e., the petitioner herein, and are not inclined to pursue the suit. His contention is that the suit being a partition suit, though he is shown as defendant in the array of parties, he is entitled to continue the suit by transposing himself as plaintiff. Only the petitioner herein opposed the said application denying that the legal representatives of the deceased sole plaintiff joined hands with him and were not inclined to pursue the suit, and contending that as the sole plaintiff died on 11-4-1987 and no application for bringing on record his legal representatives was filed, the suit abated completely land that it was no longer in existence in the eye of law and, therefore, the present I. A had no legs to stand.
3. Before the learned Subordinate Judge, on behalf of the petitioner herein reliance was placed on a Division Bench decision of this Court in Mir Sardar Ali Khan v. Special Deputy Collector, AIR 1973 A.P. 298 = 1973 (20 ALT 155, wherein it has been held that the power under Sub-rule (2) of Rule 10 in Order 1 of the Code of Civil Procedure can be exercised only when the proceedings are alive and still pending and not when they are already disposed of. On behalf of the first respondent herein it was contended that a suit for partition never abates by death of a co-sharer even if the legal representatives were not brought on record and that, therefore, it could not be said that the suit abated totally and reliance was placed on the judgment of the Punjab High Court in Jagat Dhish Bhargava v. Shri Jaumharlal Bhargava, and also on the judgment of this Court in Kotamida Ramayya v. Chinna Chennarayana, 1974 An.W.R. 149. The learned Subordinate Judge has taken the view that it cannot be said that the suit was not alive and that in the interests of justice and the peculiar circumstances of the case the first respondent herein can be transposed as the second plaintiff in the suit.
4. The learned Counsel for the petitioner contends that as no application for bringing on record the legal representatives of the deceased plaintiff was made within time the suit - O.S.No. 129 of 1985 - abated under Sub-rule 2 of Rule 3 of Order 22 of the Code of Civil Procedure and that after the suit abated there was no suit in which transposition of a defendant as plaintiff could be made. Relying on the judgment of the Supreme Court in Madan Naik v. Hansubala Devi, , he submits that abatement under Rules 3 and 4 of Order 22 takes place by operation of law and no specific order is necessary. He further submits that an application under Order 1 Rule 10 (2) can be made only in pending proceedings and that when a suit abates it cannot be treated as pending. He also submits that there is no inherent power in the Court under Section 151 of the Code of Civil Procedure to set aside the abatement and for this he bases on a recent judgment of a Division Bench of this Court in Morasa Anjaiah v. Kondragunte Venkateswarlu, , He further submits that when a suit abates, a defendant cannot make an application to the Curt for setting aside the abatement and that Sub-rule (2) of Rule 9 of Order 22 enables only a plaintiff or a person claiming to be the legal representative of a deceased plaintiff to make an application for setting aside the abatement. He contends that under the circumstances an application under Order 1 Rule 10 (2) for transposition by the First respondent does not lie and that the learned Subordinate Judge had no jurisdiction to entertain and allow I.A.No. 1087 of 1987.
5. On the other hand the learned Counsel for the first respondent submits that a partition suit is different from other suits and that the position of the plaintiffs and defendants in such a suit is inter-changeable and that the defendants in such a suit even though not arrayed as plaintiffs are in the same position as plaintiffs. He further submits that in the case of partition suits death of a party does not result in abatement of the suit in its entirety. Even in the case of death of the sole plaintiff in such a suit, it only abates so far as the deceased plaintiff is concerned and, therefore, when the legal representatives of the plaintiff do not come forward to implead themselves or to set aside such abatement, one or more defendants can still continue the suit by transposing themselves as plaintiffs and if need be implead the heirs of the deceased plaintiff as parties claiming interest in the subject matter of the partition suit in their own right. He contends that such an application by the defendants for transposition as plaintiffs can be entertained by the Court under Order 1 Rule 10 (2) and that the Court has certainly power to allow the transposition. He also relies on the judgment in Morasa Anjaiah v. Kondragunte Venkateswarlu, , for the proposition that a partition suit does not abate as a whole due to not bringing on record the legal representatives of the deceased party.
6. Though a number of legal conundrums temptingly stare in the face for resolution, I will confine myself to the essentials of this matter. There is no doubt that when a sole plaintiff in a suit dies and the right to sue servives and no application is made to bring on record the legal representatives of the deceased plaintiff, the suit shall abate so far as the deceased plaintiff is concerned, which means that the suit cannot go on and if nothing further happens a formal order has to be passed closing the suit. In Madan Naik v. Hansubala Devi, , the Supreme Court held:
"It may be mentioned that no specific order for abatement of a proceeding under one or the other provision of Order 22 is envisaged, the abatement takes place on its own force by passage of time. In fact, a specific order is necessary under Order 22, Rule 9 of Code of Civil Procedure for setting aside the abatement".
A Full Bench of Travancore-Cochin High Court in Alyappan v. Kesavaru, AIR 1953 T.C. 545 has brought out the difference between Section 366 of the Old Code 1882 and the provisions in Rules 3 and 4 of Order 22 of the present Code as follows:-
"Abatement is a legal consequence flowing from the omission to take the necessary steps within the time limited by law to implead the legal representative of the deceased plaintiff and a formal order of the Court is not necessary for such a consequence to happen. That must be the reason why the framers of the Code chose to use the expression that the suit shall abate so far as the deceased plaintiff is concerned inOrder 22 Rule 3 (2) instead of the expression that the "Court may pass an order that the suit shall abate" as contained in Section 366 of the Code. In dealing with the consequence of the plaintiff's failure to make an application within the prescribed time to implead the legal representative of the deceased defendant the provision contained in Section 368 of the old Code was that the suit shall abate as against such defendant. The identical provision is contained in Order 22 Rule 4 Clause 3, also. The effect of these provisions is only that the abatement takes place by operation of law and it does not depend on any order of the Court".
The Full Bench was considering in that case the abatement of an appeal with reference to the date of the final order on the appeal for the purposes of Article 182 of the Limitation Act, 1908, and observed as follows:-
"Thus, it will not be correct to say that in the case of abatement of an appeal it is unnecessary or superfluous for the appellate Court to pass final orders disposing of the appeal. On the other hand it appears that even in cases of abatement an order of the Court which has entertained the Appeal is necessary to have it removed from the file."
In so observing, the Full Bench has taken into consideration the fact that a party to an appeal may have died and within the time prescribed by law, no steps may have been taken to implead his legal representative with the result that the appeal may have really abated against the deceased party; but still, the appeal may continue to be on the file of the appellate Court unless and until the fact of such abatement has been brought to the notice of the Court and the Court records the fact of such abatement and removes the appeal from its file and that this means that even though the legal effect of the abatement may have already taken place an order of the Court is necessary for a final and effective disposal of the appeal. These observations equally apply to a suit because in the case of a suit also it may happen that though a party died the fact of the death may not have been brought to the notice of the Court for quite some time and even after the said fact is brought to the notice of the Court some time has to be given for the applications to be made under Rules 3, 4 or 9 of Order 22.
7. In the present case the plaintiff died on 11-4-1987. No steps were taker by his legal representatives to bring themselves on record within the period of 6. AIR 1953 T.C. 545. limitation prescribed for that i.e., within ninety days from 11-4-1987. The suit, therefore, abated under Sub-rule (2) of Rule 3 of Order 22 'so far as the deceased plaintiff is concerned'. The learned Counsel for the first respondent submits that the first respondent i.e., the second defendant, could not have made an application for bringing on record the legal representatives of the deceased sole plaintiff under Sub-rule (1) of Rule 3 of Order 22. I am not so sure about that. The said Sub-rule (1) is as follows:-
"3 (1) Where one of two or more plaintiffs dies and the right to sue does not servive 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."
It is obvious from a reading of this Sub-rule (1) that the person or persons who should make an application are not mentioned therein. What is said therein is merely '...on an application made in that behalf...'. This is supported by what is mentioned in Sub-rule (2) of that Rule3 which is 'Where within the time limited by law no application is made under Sub-rule (1),....'. In this Sub-rule (2) also the person who is required to make the application is not mentioned. There is no reason why in a proper case the defendant should not make an application for bringing on record the legal representatives of the deceased sole plaintiff like in a suit for dissolution of a partnership or a suit for partition which has been pending for a number of years and progressed considerably towards a preleminary decree. The Supreme Court in Union of India v. Ram Charan, supports what I say when it observes as follows:-
"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...".
Therefore, I am of the view that there is nothing in Rule 3 of Order 22 precluding a defendant from making an application for bringing on record the legal representatives of the deceased plaintiff so as to enable the Court to proceed with the suit after making the legal representatives parties to the suit. But it is possible that the legal representatives do not respond to such an application for bringing them on record, and even after being brought on record they may not show any interest in prosecuting the suit. In such a situation a remedy is provided under Rule 1-A of Order 23 which provides for transposition of defendants as plaintiffs. The said Rule 1A is as follows:-
"1-A. Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants".
8. However, in the present case no such application for bringing on record the legal representatives of the deceased plaintiff was made by any of the defendants in the suit including the 1st respondent herein and therefore the suit has abated so far as the deceased plaintiff is concerned. As contended by the learned Counsel for the 1 st respondent, it is obvious that the legal representatives of the deceased plaintiff are not interested in prosecuting the suit as is evident from the fact that they did not make an application for bringing themselves on record as plaintiffs to continue the suit. In such a situation, a defendant who wants to continue the suit like in the case of a suit for partition or a suit for dissolution of a partnership and for rendering of accounts, has no remedy under any of the Rules under Order 22 for setting aside of abatement so far as the deceased plaintiff is concerned. Sub-rule (2) of Rule 9 provides such remedy only to a plaintiff or the person claiming to be the legal representative of a deceased plaintiff. Therefore, the only recourse available to the first respondent for continuing the suit is to apply for transposition as a plaintiff.
9. The learned Counsel for the petitioner contends that in the present case there was only one plaintiff who died and when the suit abated under Rule 3 (2) of Order 22 by operation of law there could be no pending suit in the eye of law and, therefore, Order 1 Rule 10 (2) cannot be invoked by the first respondent for transposing himself as a plaintiff. He relies on Mir Sardar Ali Khan v. Special Deputy Collector (1 supra), wherein a Division Bench of this Court held as follows:-
"The very intendment and purpose of Order 1, Rule 10(2), Civil Procedure Code is to add parties necessary or proper, to enable the Court to effectually and completely adjudicate all the questions that are involved in a case. The use of the words 'at any stage of the proceedings' in Sub-rule (2) of Rule 10 in Order 1 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 1, Rule 10(2) 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".
In that case the Bench was considering an application to set aside the judgment and decree of this Court in a first appeal. That application was filed along with an application to condone the delay of 104 days in filing it and also along with another application for impleading the petitioners therein as party respondents in that first appeal. The Bench dismissed the application for condoning the delay of 104 days in preferring the application to set aside the judgment and decree in the first appeal and consequently also dismissed the other application for impleading all parties in that first appeal and incidentally made the observations referred to above. It is obvious that the question of impleading parties would have arisen only if the judgment and decree in the first appeal was set aside. The facts of the case before the Division Bench thus disclose that the first appeal before this Court was already disposed of by judgment and decree and, therefore, there were no proceedings pending before this Court at the time when the said petition for impleading of parties was presented and came up for consideration.
10. But the principle laid in Mir Sardar Ali Khan's case (1 supra) cannot be applied to the present case because it cannot be said that the present suit abated in toto on the death of the sole plaintiff. There is no doubt that where the whole suit abates there is no suit which can be continued and the suit is terminated. This much was said by R.S. Bachawat, J., and was agreed to by Chief Justice K.C. Das Gupta of the Calcutta High Court, as they were then, in Kedarnath v. Khaitan Sons & Company, . But the present suit is a partition suit. Such a suit does not abate in its entirety because of the death of one of the parties; and when a sole plaintiff dies it abates only so far as the sole plaintiff is concerned. There is no reason why it cannot be continued by the transposition of a willing defendant as plaintiff. D.A. Desai, J., of the Supreme Court in Bhagwan Swaroop v. Mool Chand, said:
"In a suit for partition the position of plaintiffs and defendants can be interchangeable. It is that each adopts the same position with the other parties."
Amerendranath Sen, J., agreed with him observing:
"A partition suit stands on a peculiar footing. In a partition suit any other party can claim transposition from the category of defendant to the category of plaintiff and vice-versa".
I.D. Dua, J., of the Punjab High Court as he then was, observed in Jagat Dhish Bhargava v. Shri Jazvaharlal Bhargava (2 supra) as follows:-
"The question which falls for determination before me is: has the suit on the facts and circumstances of this case abated in toto and, therefore, should not be revived? From what has been argued on behalf of the petitioner I have not been able to persuade myself to hold that the suit in the present case has abated in toto. A suit for partition can be filed by any co-sharer and on a decree for partition being granted every co-sharer is entitled to his share. As a matter of fact the decree has to declare the rights of the several parties interested in the property. From this point of view every party interest in the property may be considered to be a plaintiff even though not so arrayed".
It is not necessary to multiply decisions on this point because in the recent judgment of a Division Bench of this Court in Morasa Anjaiah v. Kondragunte Venkateswarlu (5 supra), after considering a number of dicisions including the case of Bhagavan Swaroop v. Mool Chand, , one of the principles laid is:
"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 such 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 CPC". The same principle has to be applied also in the case of transposition of a party under Order 1 Rule 10(2).
11. I am supported in this view by the judgment of Chagla, J., in Devsey Khetsey v. Hirji Khairaj, AIR 1942 Bombay 35. That was in an original suit before the Bombay High Court for dissolution of partnership that subsisted between the plaintiff in the suit and the defendant and for accounts. After that suit was filed on 2-8-1939 and some progress was made, on 19-12-1939 the plaintiff died. On 18-3-1940 the defendant sought to bring on record the heirs of the deceased plaintiff. Though that was ordered, nothing came out of it because they did not come forward to amend the plaint. Long after that, on 7-8-1941 the learned Counsel for the defendant sought leave to transpose the defendant as the plaintiff in the suit. Chagla, J., held as follows:-
"Now, it is clear that a partnership suit, as was pointed out by West J, in 7 Bombay 167, is a suit of a peculiar character, and the parties to such a suit do not stand to each other precisely in the same relation as parties to suits generally and that each of the parries to a partnership suit, however he may be formally ranked, is really in turn plaintiff and defendant and in both capacities comes before, the Court for the adjudication of his rights relatively to the other partners, which the Court endeavours to determine by its decree. In that case the facts were somewhat similar to the facts in this case. There the plaintiff who had filed a partnership suit had settled with most of the defendants and wanted leave to withdraw the suit or, in the alternative, to have the suit dismissed. Ten of the defendants supported the plaintiff's application. Two of the defendants objected and applied, under Section 32, Civil P.C. (Act 10 of 1877), that they might be made plaintiffs and that the plaintiff might be made defendant. Elaborate arguments were addressed to West J., and although West J., felt some difficulty as no case on the point appeared to be forthcoming either in India or from English Courts, he ultimately made the order stating that he clearly had jurisdiction to do so. Now, there is no doubt that under Order 1, Rule 10, the Court has the jurisdiction in proper cases to transpose defendants as plaintiffs, and I think that in this case where partnership accounts have to be taken it would work great hardship if the death of the original plaintiff, who filed a partnership suit for partnership accounts, should put an end to the suit, and therefore I am inclined to grant the application made to me by Mr. Taraporevala.
The order that I will make will be that the defendant in the suit should be transposed as the plaintiff and he as the new plaintiff should amend the plaint and proceedings in this suit. The written statement that he has filed as the original defendant he will be allowed to treat as the plaint in the proceedings which will be amended according to my order. The defendant will bring the heirs of the original plaintiff, Bai Moorbai, Damji Devsey and Dhanpati Devsey, on record as defendants to the suit. I will also give liberty to the defendant to amend his written statement in order that any reliefs which he might have asked, if he had been the plaintiff in the suit, might be incorporated in his written statement."
12. I, therefore, find that the order of the learned Subordinate Judge impugned in this Civil Revision Petition is well within his jurisdiction and that it is not vitiated by any illegalities or material irregularities. However, he has to pass consequential orders as regards the amendment of the pleadings and for bringing on record legal representatives of the deceased plaintiff as defendants if they are necessary parties, taking guidance from the judgment of Changla, J., in Devsey Khetsey v. Hirji Khairaj (10 supra), extracted above. I, therefore, direct the learned Subordinate Judge, Vizianagaram, accordingly.
13. Subject to the above direction, the Civil Revision Petition is dismissed. No costs.