Madhya Pradesh High Court
Anoop Choudhary vs Smt. Usha Bhargava on 28 February, 2008
Equivalent citations: AIR 2008 (NOC) 1475 (M. P.)
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
ORDER U.C. Maheshwari, J.
1. This order shall decide I. A. No 14251/07 filed by the appellant under Order 1 Rule 10 r/w Section 151 r/w Order 22 Rule 10 of CPC seeking permission to implead the legal heirs of deceased respondent No. 4 as respondents on record.
2. The facts in brief of the case which are necessary to decide this I. A. are that the appellant initiated a suit for specific performance against respondent No. 1 and 2 on the basis of an agreement to sale dated 18.8.1974 executed by Shri Pyarelal Sharma, the father of the respondent No. 1 and 2. As per further contention after the death of Pyarelal Sharma the respondent No. 1 and 2 being his legal heirs sold the disputed property through registered sale deed dated 17.12.1981 to the deceased respondent No. 4 Sardar Harjinder Singh. Initially the suit was filed only against respondent No. 1 and 2 but subsequently other respondents were impleaded as defendants in the case. The deceased respondent No. 4 defended the suit as bonafide purchaser of the disputed property with consideration. After recording the evidence on appreciation by holding him the bonafide purchaser the appellant's suit was dismissed on merits by the trial court on which the present appeal is preferred.
3. In pendency of this appeal, the respondent No. 4 Sardar Harjinder Singh died on 5.1.2005, on which the necessary steps to bring his legal representatives on record was not taken by the appellant within limitation, but at belated stage on 13.8.2007, I. A. No. 9285/07 under Order 22 Rule 4 r/w Rule 9 of CPC to bring his legal representatives on record and on dated 27.8.2007 I. A. No. 9952/07 under Section 5 of Limitation Act for condoning the delay in filing the proceeding for setting aside the abatement of appeal in respect of such respondent while on 15.11.2007 an application I. A. No. 13307/07, under Order 22 Rule 4 r/w 9 CPC for setting aside such abatement were filed. The same were seriously opposed on behalf of the proposed legal representatives of the deceased respondent contending that C. S. No. 10-A/04 filed by the deceased Sardar Harjinder Singh for eviction against the appellant was decreed in his life time by Third Civil Judge, Class-II vide judgment and decree dated 5.2.2004, such decree was challenged by the appellant in Civil Appeal No. 41-A/04, the same was pending on the death of Harjinder Singh in the court of Tenth Additional District Judge Jabalpur, where the present appellant brought his legal representatives on record within limitation but did not take any steps to bring the same on record in this appeal, resultantly the appeal had become abated automatically under the law. Thus there is no sufficient cause to condone such delay and setting aside the aforesaid abatement and prayer for dismissal of such applications was made. Subsequently on 3.12.2007 at the stage of hearing such I. As. were withdrawn by the appellant's counsel with liberty to file the appropriate application under Order 1 Rule 10 r/w Section 151 of CPC, if the same is permissible under the law.
4. Subsequent to aforesaid order the present application under order 1 Rule 10 of CPC is filed by the appellants to bring the same persons on record at the place of the deceased respondent No. 4 contending that the impugned suit is to be decided between the appellants and respondent No. 1 to 3, on the basis of the alleged agreement executed by the predecessor of such respondents in favour of the appellants at earlier point of time from the date of execution and registration of the sale deed in favour of the deceased Harjinder Singh by respondent No. 1 and 2. Therefore, the presence of the proposed respondents the legal heirs of Harjinder Singh are not necessary for passing the effective decree in this appeal but their presence will be required as proper party at the time of executing the decree if the same is passed in favour of the appellant. It is also stated that to implead the person in such manner under Order 1 Rule 10 of CPC the limitation for the same is three years as provided under Article 113 of Limitation Act and the limitation prescribed for brining the legal representative on record is not applicable to the present case. With these averments the prayer for brining the legal heirs of the deceased respondent No. 4 Harjinder Singh as respondents on record is made.
5. In reply of the proposed legal heirs of the deceased respondent, by admitting the death of respondent No. 4 and acquirement of title by them in respect of the disputed property it is stated that after withdrawal of the applications filed Under Order 22 Rule 3, Under Order 22 Rule 9 CPC and Sec 5 of the Limitation Act for bringing the legal representatives of deceased on record, the appellant did not have any right or authority by circumventing such provision of CPC to bring them on record. Once the appeal has been abated against the deceased respondent and proceedings relating to set aside such abatement has been withdrawn by the appellants, thereafter the appellant does not have any right to bring the proposed legal representatives on record by way of this application and prayed for dismissal of the same.
6. Shri A. K. Jain, learned Counsel for the appellants by referring the facts stated in I. A. said that even after withdrawal of the applications filed for bringing the legal representative of the deceased respondent No. 4 on record under Order 22 Rule 4, 9 and 11 of CPC and Section 5 of Limitation Act, the proposed legal heirs of such respondent may be brought on record at his place by the appellant in the circumstances of the case. According to his submission their presence are not required to decide the validity of the alleged agreement, as such question is to be decided in between the appellants and respondent No. 1 to 3 while the presence of such heirs shall be required as proper party only at the time of execution of decree if the same is passed in favour of the appellant on adjudication of this appeal. In such premises the appellants be permitted to bring them on record by allowing the I. A. He also placed his reliance on some reported cases of the Apex Court and also some of the case of other courts.
7. By responding the aforesaid argument Shri N. K. Patel, learned Senior Advocate has said that the provision of Order 1 Rule 10 of CPC is not available to the appellant after withdrawing the applications filed under Order 22 Rule 4, 9, and 11 of CPC and also under Section 5 of Limitation Act regarding bringing the legal representatives of deceased respondent on record. The appellant could not be permitted to circumvent the provision of Order 22 Rule 4, 9 and 11 of CPC by invoking the provision of Order 1 Rule 10 of CPC. The abatement of the appeal is automatic process, if the legal representatives of the deceased parties are not brought on record within the prescribed period then the abatement is occurred, which could not be set aside without any sufficient cause for condoning the delay and such applications have been disposed of byThis Court considering the request of the appellant to withdraw the same. He also placed his reliance on some reported cases and prayed for dismissal of this I. A.
8. Having heard the counsel I have carefully gone through the entire record with all the aforesaid applications, impugned judgment and the different order sheets of this appeal. It is apparent that impugned suit for specific performance was filed initially against respondent No. 1 and 2 on 19.12.1989 contending that the alleged agreement was executed by their father Pyarelal, and after his death the disputed property was inherited by respondent No. 1 to 3 and the same was transferred by them through registered sale deed dated 17.12.1981 to deceased respondent No. 4. It is also apparent that impugned suit has been dismissed by the trial court against all the respondents holding the deceased respondent No. 4 Harjinder Singh acquired the title of disputed property as bonafide purchaser. In pendency of this appeal deceased respondent No. 4 died on 5.1.2005, thereafter within limitation no steps were taken by the appellant to bring his legal representatives on record within prescribed limitation of 90 days. Subsequent to it at very belated stage an application under Order 22 Rule 4 read with Rule 9 of CPC was filed on 13.8.2007. Subsequent to it an application under Section 5 of Limitation for condoning the delay in filing the proceeding for setting aside the abatement of appeal in respect of deceased respondent was filed on 27.8.2007 and an application under Order 22 Rule 9 for setting aside such abatement was filed on 15.11.2007. The same were seriously opposed on behalf of the proposed legal representatives by filing their reply and during the course of argument on such applications the same were withdrawn by the appellants' counsel on dated 3.12.2007, on which the following order was passed:
...
During the course of argument appellant's counsel seeks permission to withdraw I. A. No. 9285/07, I. A. No. 9952/07 and I. A. No. 13307/07 as not pressed with liberty to file some appropriate application under Order 1 Rule 10 r/w Section 151 of CPC.
Shri Patel has no objection in such withdrawal while Shri Sanghi said that same be permitted to withdraw without extending any liberty to the appellant.
On consideration appellant is permitted to withdraw the aforesaid I. As. as not pressed with liberty to file the application, if the same is permissible under the law. On filing such application the same shall be dealt with in accordance with law.
...
9. Subsequent to aforesaid order this application Under Order 1 Rule 10 r/w O 22 Rule 10 r/w Section 151 of CPC is preferred. The same is also seriously opposed by all the proposed legal representatives of the deceased in their reply. In such circumstanceThis Court has to answer the following questions:
a. After withdrawal of the aforesaid applications by the appellant filed under Order 22 Rule, 4, 9 and 11 of CPC and under Section 5 of Limitation Act whether he may be permitted to bring such legal heirs of respondent No. 4 on record at his place by invoking the provision of Order 1 Rule 10 r/w 151 of CPC. In case such application is dismissed then whether this appeal should be treated as abated in toto or only against the deceased respondent.
10. It is basic proposition of law that Order 22 Rule 10 of CPC is applicable to bring the person on record with leave of the court who acquires the rights in the disputed property during pendency of the suit by assignment, creation or devolution, such person may come or bring on record with leave of the court at the place of such party of the suit from whom he acquired such rights in the aforesaid manners. But in any case such provision and the provision of Order 1 Rule 10 of CPC could not be invoked to defeat the provision of Order 22 Rule 3, 4, 9 and 11 of CPC. On other words by defeating the provisions of Order 22 Rule 4, 9 and 11 of CPC the person like appellant could not be permitted to circumvent such provision by invoking the provision of Order 22 Rule 10 r/w Order 1 Rule 10 of CPC.
11. On earlier occasion this question was answered by the Hon'ble Division Bench of Patna High in the matter of Jamuna Rai and Ors. v. Chandradip Rai and Ors. in which in was held as under:
85. In this view of the matter, it must be held as mentioned earlier also that the appeal has abated as against the heir of the deceased appellant No. 13.
86. Because of my above decision that the appeal has abated as against the heirs of the deceased appellant, his legal representatives cannot now be added as parties to the appeal under Rule 10, Order 1, as prayed for by circumventing the provision of Rule 3, Order 22, and, therefore, the application made under Rule 10, O 1, is also rejected.
12. Thereafter such question was also answered by the High Court of Calcutta in the matter of Surendra Nath Sarkar and Ors. v. Manatab Monian and Ors. with the following findings:
6. It appears that such power can be exercised when a party, whose presence before the court may be considered necessary, is not joined at all as a party in the proceedings. The provisions do not in my opinion apply when by operation of other provisions of the Code the suit has abated in respect of a party properly joined and attempt to bring his heirs and legal representatives on record has failed by an order of court. It cannot be said that provisions of Rule 10 (2) override other provisions of the Code. The decisions refer to the case where there has been an abatement but no steps have been taken for setting aside abatement by inaction of the plaintiff, and not to cases where the court has refused to set aside abatement on merits.
7...Inthisproceeding, we have already noted that the applications for substitution after setting aside abatement was made and rejected as a result whereof the suit was bound to abate in respect of the deceased persons. The court did not find any sufficient reason for setting aside the abatement caused by the deaths of the aforesaid parties in rejecting the applications for substitution after setting aside the abatement. If the plaintiffs are now permitted to bring on record the legal representatives of the deceased persons on the face of such rejection in this suit, it will not be a proper or fair exercise of the jurisdiction but an exercise of jurisdiction with material irregularity on the part of the court to allow such application in exercise of its power either under Section 151 of the Civil P. C. or under Order 1 Rule 10 (2) of the Civil P. C. Further there may be serious questions of limitation involved in respect of the claims for declaration as made in the suit. I am accordingly of the opinion that in such circumstances when once the application for substitution after setting aside abatement caused by the deaths of some parties in a suit is rejected on merits the plaintiff will not be permitted to circumvent the position caused by operation of law to add them as parties by invoking the aid of Order 1. Rule 10 (2) of the Civil P. C. or of Section 151 of the Code.
13. Subsequent to it Hon'ble Orissa High Court has also given the verdict on this question in the matter of Kanhu Gauda, Petitioner v. D. Kodandi Dora and Ors. in which it was held as under:
6. ...AIR1974All422 : Khalil Ahmad v. Addl. District Judge, Gorakhpur was cited by the counsel for the petitioner. It lays down that where an application under Order 22, Rule 4 to bring the legal representative of a deceased party on record has been dismissed, the court can in exercise of power under Order 1, Rule 10, Sub-rule (2) implead the legal representative. I cannot agree with this view and I get support from a decision of this Court reported in (1974) 40 Cut LT 885,Durga Charan Parida v. Basanta Kumar Parida wherein it has been held:
It can never be the intention of the Code to take away this valuable right accrued to the legal representatives of the deceased defendant by taking resort to the provision contained in Order 1, Rule 10, Civil Procedure Code. To hold otherwise would amount to going against the scheme of the Code and would put the litigants to great hardship and prejudice. Therefore, I am of the opinion that the trial Court having dismissed the plaintiff's application for substitution, it had no jurisdiction to entertain an application under Order 1 Rule 10, Civil Procedure Code and to allow the same....
14. All the aforesaid cases have been decided after taking into consideration the relevant provisions Order 22 Rule 3 or 4 and Order Rule 10 of CPC and it was held that party cannot be permitted to circumvent the provision of Order 22. Rule 3, 4, 9 and 11 of CPC by invoking the provision of Order 1 Rue 10 of CPC. I am also with the agreement of such principle and in that way the aforesaid cases are directly applicable to the present case for holding that after withdrawing the applications filed under Order 22 Rule 4, 5, 9 and 11 of CPC to bring the legal heirs of the deceased respondent No. 4 on record, the appellants did not have any such right or authority to bring such person on record by circumventing such provisions by invoking the provision of Order 1 Rule 10 of CPC.
15. The appellant counsel also cited some case laws the same are taken into consideration one by one in following paragraphs;
16. In the matter of Durga Prasad and Anr., v. Deep Chand and Ors. in which it was held as under:
37. The practice of the courts in India has not been uniform and three distinct lines of thought emerge. (We are of course confining our attention to a 'purchaser's suit for specific performance.) According to one point of view, the proper form of decree is to declare the subsequent purchase void as against the plaintiff and direct conveyance by the vendor alone. A second considers that both vendor and vendee should join, while a third would limit execution of the conveyance to the subsequent purchase alone.
42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in -Kafiladdin v. Samiraddin' (C), and appears to be the English practice. See Fry on specific Performance, 6th Edn. page 90, paragraph 207; also -'Poter v. Sanders' (1846) 67 ER 1057 (D). We direct accordingly.
17. The aforesaid case was decided by the Apex Court in presence of the subsequent transferee and directing the manner in which the decree should be passed in the suit for specific performance where the subsequent transferee on record. Although this Court did not have any dispute regarding principle announced in this case, it does not give the answer of the question involved in this appeal. Hence, the same is not applicable to the appellant.
18. So far the matter of State of Punjab, Appellant v. Nathu Ram is concerned the same was decided on the back ground of joint decree relating to the compensation of the land acquition matter and the concerned appeal was held to be abated in toto but the question of circumventing the provision of Order 22 Rule 3, or 4 by invoking the provision of Order 1 Rule 10 of CPC has not been answered in it, hence, the same is not helping to the appellant.
19. In the mater of Dwarka Prasad Singh and Ors. v. Harikant Prasad Singh and Ors. , it was held that in a suit for specific performance against a purchaser with notice of a prior agreement of sale the vendor is a necessary party in the suit. Such question is not involved in the present matter; hence, this case law is also not helping to the appellant.
20. The case law in the matter of Khalil Ahmad and Ors v. Additional District Judge, Gorakhpur , is concerned, although the identical question was answered in this decision but subsequently this case was considered and discarded by the Orissa High Court with convincing and sufficient reasons in the matter of Kanhu Gauda's case (Supra) . Thus this case is also not helping to the appellant.
21. So for the matters of Smt. Manni Devi v. Ramayan Singh and of Pulikutia Papanna and Ors. v. Pulikuntla Gangulamma and Ors. are concerned the proposed persons were directed to be brought on record under Order 1 Rule 10 (2) of CPC on thse basis of their some independent rights with the property and not on the basis of the right inherited by them from the deceased party on whose death the appeal was abated. Such situation is not here, as in the present matter appellant wants to bring the proposed persons as legal heirs of the deceased respondent on record. Thus, these citations are also not helping to the appellant.
22. Under the aforesaid premises it is held that this appeal has already been abated against the deceased respondent No. 4 on non- brining his legal representatives on record with in 90 days from the date of his death i. e. 5.1.05 and after withdrawing the proceedings filed Under Order 22 Rule 4,9 and 11 of CPC along with application Under Section 5 of Limitation Act in that regard the appellant has no authority to bring such heirs on record under Order 1 Rule 10 r/w Order 22 Rule 10 r/w Section 151 of CPC. Now the appellant did not have any right to sue against the proposed respondents the legal heirs of deceased respondent No. 4; as they acquired the valuable right on abatement of the appeal; as the findings of the trial court relating to the deceased respondent No. 4 could not be interfered in this appeal and in such premises the application of the appellant deserves to be dismissed.
23. So far the question regarding abatement of this appeal is concerned, I am of the view that this appeal has not become abated in toto, the same shall proceed further against the other existing respondents to adjudicate the question regarding refund of the alleged earnest money as alleged given to Pyarelal Sharma by the appellant as mentioned in the agreement.
24. In the aforesaid premises by holding that this appeal has become abated against the deceased respondent No. 4 and appellant did not have any right to bring his legal heirs on record at this stage under Order 1 Rule 10 r/w Order 22 Rule 10 r/w Section 151 CPC by circumventing the provision of Order 22 Rule 3, 9 and 11 of CPC, the appellant's I.A. No. 14251/07, is hereby dismissed.