Madras High Court
A.R. Venkatasami Naicker And Two Ors. vs A.R.V. Jaganathan And Six Ors. on 29 October, 1997
Equivalent citations: (1998)1MLJ600
ORDER M. Karpagavinyagam, J.
1. The civil revision petition has been filed by the petitioners against the order dated 6.1.1997 passed in I.A. No. 316 of 1996 in O.S. No. 80 of 1996 on the file of the District Munsif, Virudhuunagar, allowing the petition filed by the respondents 1 and 2 to bring the petitioners 3 to 7 herein as the legal representatives of the deceased, sole defendant.
2. The respondents 1 and 2 herein filed a suit in O.S. No. 347 of 1994 on the file of the Subordinate Judge, Srivilliputtur, for specific performance of the agreement of sale dated 15.4.1992 executed by the wife of the first petitioner for consideration of Rs. 30,000 in their favour. The said suit was contested by the first petitioner's wife. In the meantime, the suit was transferred to the District Munsif's Court, Virudhunagar and renumbered as O.S. No. 80 of 1996. On 17.1.1996 the first petitioner's wife died. So, the respondents 1 and 2 filed an application in I.A. No. 316 of 1996 in the above suit, to bring the petitioners and Ors. as the legal representatives of the deceased defendant. This petition was allowed by the lower court by the impugned order dated 6.1.1996. This is challenged in the revision before this Court.
3. The counsel for the petitioners would mainly contend the though there is no dispute with regard to the relationship of parties hereto, still the respondents 1 and 2 cannot maintain such an application, in view of the nature of the subjectmatter of the suit, involving the right to sue or to be sued and there is no scope for applying for bringing the legal representatives on record. In short, the contention of the counsel is that they cannot be made as parties in a specific performance suit, because the agreement was entered into only between the first petitioner's wife and the respondents 1 and 2.
4. The above contention may not be correct, in view of the following reasons. Section 37 of the Indian Contract Act, 1872 provides for such a contingency. Section 37 reads thus:
Obligation of parties to contracts. The parties to a contract must either perform, or offer to perform their respective promises unless such performance is dispensed with or excused under the provisions of this Act, or of any other law. Promises bind the representative of the promissors in case of the death of such promissors before performance, unless a contrary intention appears from the contracts.
5. It is not the case of the petitioners that there is a contrary intention expressed in the agreement, the subjectmatter of the suit for specific performance. Besides this, Order 22, Rule 4, C.P.C. also would say that legal heirs could be brought as legal representatives of the defendant after the death of the defendant. Order 22, Rule 4, C.P.C. processes thus:
Rule 4 Procedure in case of death of one of several defendants or of sole defendant: (1) Where one of two ore 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.
(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 defendant not-withstanding the death of such defendant and shall have to the same force and effect as if it has been pronounced before death took place.
Since the legal heirs are representing the estate of deceased, right to sue is existing against the said legal heirs of the deceased defendant. As long as heirs of the deceased defendant, the legal heirs are bound to defend the case before the trial court. 5. The counsel for the respondents 1 and 2 has also brought to the notice of this Court the decision in Bhagwan Swaroop v. Chand , which dealt with Order 22, Rule 4, C.P.C. The relevant observation of the Apex Court is this:
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 in particular period, provided the cause of action survives.... 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 result in injustice to the party ooncerned.
6. So, in the light of the factors what is stated above, I am of the view that the impugned order does nosuffer from any infirmity or illegality. Therefore, the point that has been raised by the counsel for the petitioners in this petition does not stand.
7. In the result, the revision fails and the same is dismissed. No order as to costs. Consequently, C.M.P. No. 7232 and 10583 of 1997 are also dismissed.