Surya Prakash vs Settlement Officer Consolidation, ... on 27 July, 2023

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Allahabad High Court

Surya Prakash vs Settlement Officer Consolidation, ... on 27 July, 2023

By means of the present petition, petitioner has assailed the order dated 15.03.2023 passed by opposite party no. 1-Settlement Officer Consolidation in appeal registered as Case No.1357/2020, Computerized Case No. 201854083000001357 (Surya Pal and Others Versus Shyam Narayan and Others), which was preferred under Section 11(1) of U.P. Consolidation and Holdings Act 1953 (in short Act of 1953), assailing the order dated 23.01.1965 passed in Case No. 3792 under Section 9A(2) of the Act of 1953 by the Consolidation Officer Bargaon, District Gonda.

The facts in brief which are relevant for disposal of the present petition, is to the effect that the appeal was filed impleading dead persons (17 persons). This appeal was preferred alongwith application for condonation of delay duly supported with the affidavit, before opposite party no.1- Settlement Officer Consolidation, Gonda.

After presentation of appeal the notices were issued by opposite party no.1. Upon service of notice, petitioner no.1-Surya Prakash alongwith Ram Kewal and Ram Roop Yadav, preferred an application for dismissal of appeal on the ground that appeal has been filed against the dead persons.

On coming to know the defect in appeal, the appellants-opposite party nos. 2 to 6 preferred application(s) for substitution for bringing on record the legal heirs of the respondent(s) in the appeal. The opposite party no.1 after providing proper opportunity of hearing to the parties to the litigation and taking note of the facts of the case, vide order dated 15.03.2023 rejected the application for dismissal of appeal and posted the matter for hearing on application(s) for substitution.

As stated by learned Counsel for the parties, till date on account of interim protection granted by this Court, the application(s) for substitution have not been disposed of.

Today, when the case was called out, learned Counsel for the parties have placed the following judgment(s) before this Court:-

1- Gurcharan Singh Versus Surjit Singh and another passed in Special Leave Petition (C) No. 7735 of 2010 decided on 02.11.2012 reported in (2012) 13 SCC 530.

2- Banwari Lal (Dead) by legal representative and another Versus Balbir Singh reported in (2016) 1 SCC 607 3- Pankajbhai Rameshbhai Zalavadiya Versus Jethabhai Kalabhai Zalavadiya (Deceased) through Legal representative and others reported in (2017) 9 SCC 700.

In the case of Gurucharan Singh (Supra) the Hon'ble Apex Court after considering the judgment(s) passed in the case of Bank of Commerce Ltd. Versus Protab Chandra Ghosh reported in AIR 1946 FC 13, Gopalakrishanayya Versus Adivi Lakshmana Rao reported in AIR 1925 Mad 1210, State of W.B. Versus Manisha Maity reported in AIR 1965 Cal 459 as also Rule 8 and 9 of order 16 of Supreme Court Rules, 1966, the Hon'ble Apex Court observed as under:-

"8. Considering the authorities discussed above, the aforesaid provisions of Order 16 Rules 8 and 9 will apply where at the time of filing of the special leave petition, the respondent was alive and after the filing of the special leave petition his legal representatives are sought to be substituted, but will not apply where the respondent was dead when the special leave petition was filed. Where the respondent was dead when the special leave petition was filed, the court can, in the interest of justice, allow an application for amendment of the special leave petition and condone the delay in filing such an application for amendment if the delay is satisfactorily explained.

9. IA No. 2 of 2011 is, therefore, treated as an application for amendment of the special leave petition and as the delay in filing the application for amendment of the special leave petition has been satisfactorily explained in IA No. 3 of 2011, the delay is condoned and in the interests of justice, IAs Nos. 2 and 3 of 2011 are allowed. The prayers in IAs Nos. 4 and 5 are for exemption from filing official translation and from filing death certificate of the deceased and are allowed. IA No. 6 of 2011 is for deletion of pro forma Respondent 2, Ajaib Singh, who appears to be the attorney of the contesting Respondent 1, and is allowed at the risk of the petitioner. The IAs stand disposed of."

In the case of Pankajbhai Rameshbhai Zalavadiya (Supra) the Hon'ble Apex Court after considering the judgment passed in the case Banwari Lal (dead) (Supra) and also other judgment(s) on the issue pertaining to filing of Suit or Appeal, as the case may be, against dead person(s), observed as under:-

"6. The only question which is to be decided in this appeal is, whether the legal representatives of one of the defendants can be impleaded under Order 1 Rule 10 of the Code where such defendant expired prior to the filing of the suit, particularly when the application filed by the plaintiff to bring the legal representatives of the deceased on record under Order 22 Rule 4 of the Code was dismissed earlier as not maintainable.

"7. The bare reading of Order 22 Rule 4 of the Code makes it clear that Order 22 Rule 4 of the Code applies only in the case where the death of one of the several defendants or the sole defendant occurs during the subsistence of the suit. If one of the defendants has expired prior to the filing of the suit, the legal representatives of such deceased defendant cannot be brought on record in the suit under Order 22 Rule 4 of the Code. Before proceeding further, it is relevant to note the provisions of Order 1 Rule 10 and Sections 151 and 153 of the Code, which read thus:

"10. Suit in name of wrong plaintiff.--(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court things just.

(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.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.--Where a defendant is added, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."

"151. Saving of inherent powers of court.--Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

153. General power to amend.--The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding."

8. In the matter on hand, the sale was made in favour of Defendant 7, and the validity of the sale deed was the subject-matter of the suit. The purchaser of the property i.e. Defendant 7, though dead at the time of filing the suit, was made one of the defendants erroneously. The persons who are now sought to be impleaded under Order 1 Rule 10 of the Code are the legal representatives of the deceased Defendant 7. Therefore, there cannot be any dispute that the presence of the legal representatives of the deceased is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions in the suit. Their presence is necessary in the suit for the determination of the real matter in dispute. Therefore, they are needed to be brought on record, of course, subject to the law of limitation, as contended under Section 21 of the Limitation Act.

9. Merely because the earlier application filed by the appellant under Order 22 Rule 4 of the Code was dismissed on 9-9-2009 as not maintainable, it will not prohibit the plaintiff from filing another application, which is maintainable in law. There was no adjudication of the application to bring legal representatives on record on merits by virtue of the order dated 9-9-2009. On the other hand, the earlier application filed under Order 22 Rule 4 of the Code was dismissed by the trial court as not maintainable, inasmuch as Defendant 7 had died prior to the filing of the suit and that Order 22 Rule 4 of the Code comes into the picture only when a party dies during the pendency of the suit. The only course open to the appellant in law was to file an application for impleadment to bring on record the legal representatives of deceased Defendant 7 under Order 1 Rule 10 of the Code. Hence, the order passed by the trial court on the application filed under Order 22 Rule 4 of the Code, dated 9-9-2009, will not act as res judicata.

10. Order 1 Rule 10 of the Code enables the court to add any person as a party at any stage of the proceedings, if the person whose presence in court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the court to substitute a party in the suit who is a wrong person with a right person. If the court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the court would do justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit.

11. In Vijaykumar Motilal Hirakhanwala , a Bench by majority held that the legal representatives of a party can be added under Order 1 Rule 10 of the Code, but the date on which they were impleaded shall be the date on which the suit was instituted by or against them. In the said matter, this Court on facts held that the suit was barred by limitation as per Section 22 of the Limitation Act, 1908. This Court, though it concluded that the Court has got the power to join a particular person as a party under Order 1 Rule 10 of the Code, did not interfere in the matter inasmuch as this Court found that the suit was barred by limitation. It is relevant to note that the said suit was of the year 1958. Since the Limitation Act, 1963 (now in force) was at that time not in existence, this Court applied the old limitation law and held that the suit was barred by limitation. As of now, the proviso to Section 21(1) of the Limitation Act, 1963 empowers the court to direct that the suit shall be deemed to have been instituted on an earlier date, where the omission to include a new plaintiff or defendant was due to a mistake made in good faith. Therefore, it is open to the plaintiff in the matter on hand to prove "good faith" on his part in not including the legal representatives of deceased Defendant 7, during the course of trial of suit.

12. It would be relevant to note that in Bhagwan Swaroop v. Mool Chand (1983) 2 SCC 132], this Court observed thus:

"4. It is true that it was incumbent upon the appellants to implead the heirs and legal representatives of deceased Respondent 1 in time. It is equally true that the appellants were negligent in moving the proper application. We would not question the finding of the High Court that Appellants 2, 3 and 4 knew about the death of the deceased Respondent 1. This being a suit for partition of joint family property, parties are closely interrelated and it is reasonable to believe that at least some of the appellants must have attended the funeral of deceased Respondent 1, as contended on behalf of the contesting Respondent 2. There is some force in the contention that when a specific provision is made as provided in Order 22 Rule 4, a resort to the general provision like Order 1 Rule 10 may not be appropriate. But the laws of procedure are devised for advancing justice and not impeding the same. In Sangram Singh v. Election Tribunal, AIR 1955 SC 425, this Court observed that a code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in Kalipada Das v. Bimal Krishna Sen Gupta, (1983) 1 SCC 14.

5. 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. Other features which must be noticed are that the appeal was filed somewhere in 1972. It has not come up for hearing and the matter came on Board only upon the application of the second respondent intimating to the Court that the first respondent had died way back and as his heirs and legal representatives having not been substituted, the appeal has abated. Wheels started moving thereafter. Appellants moved an application for substitution. The matter did not end there. Heirs of deceased Respondent 1 then moved an application for being brought on record. If the application had been granted, the appeal could have been disposed of in the presence of all the parties. The difficulty High Court experienced in granting the application disclosed with great respect, a hypertechnical approach which if carried to end may result in miscarriage of justice. Who could have made the most serious grievance about the failure of the appellants to substitute the heirs and legal representatives of deceased Respondent 1? Obviously the heirs of deceased Respondent 1 were the persons vitally interested in the outcome of the appeal. They could have contended that the appeal against them has abated and their share has become unassailable. That is not their case. They on the contrary, want to be impleaded and substituted as heirs and legal representatives of deceased Respondent 1. They had absolutely no grievance about the delay in bringing them on record. It is the second respondent who is fighting both the appellants and the first respondent who wants to derive a technical advantage by this procedural lapse. If the trend is to encourage fairplay in action in administrative law, it must all the more inhere in judicial approach. Such applications have to be approached with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. Undoubtedly, justice according to law; law to be administered to advance justice."

13. This Court in Karuppaswamy v. C. Ramamurthy , (1993) 4 SCC 41 has permitted the plaintiff to modify the application filed by him under Order 22 Rule 4 of the Code to make it an application under the provisions of Sections 151 and 153 of the Code. In the said matter also the suit was filed against a dead person. This Court proceeded further to conclude that the plaintiff has shown good faith as contemplated under Section 21(1) of the Limitation Act and hence the impleadment of the legal representatives/heirs must date back to the date of the presentation of the plaint. In the said matter, it was observed thus : (SCC p. 45, paras 4-5) "4. A comparative reading of the proviso to sub-section (1) shows that its addition has made all the difference. It is also clear that the proviso has appeared to permit correction of errors which have been committed due to a mistake made in good faith but only when the court permits correction of such mistake. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. The proviso to sub-section (1) of Section 21 of the Act is obviously in line with the spirit and thought of some other provisions in Part III of the Act such as Section 14 providing exclusion of time of proceeding bona fide in court without jurisdiction, when computing the period of limitation for any suit, and Section 17(1) providing a different period of limitation starting when discovering a fraud or mistake instead of the commission of fraud or mistake. While invoking the beneficent proviso to sub-section (1) of Section 21 of the Act an averment that a mistake was made in good faith by impleading a dead defendant in the suit should be made and the court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith. The court's satisfaction alone breathes life in the suit.

5. It is noteworthy that the trial court did not attribute any neglect or contumacy to the conduct of the plaintiff-respondent. It was rather observed that the plaintiff could have known the date of the death of the first defendant only by the counter filed to IA No. 265 of 1975. Normally, if he had known about the date of death of the defendant, he would have filed the suit in the first instance against his heirs and legal representatives. The trial court has also opined that the plaintiff was ignorant as to such death and that is why he filed IA No. 265 of 1975 under Order 22 Rule 4 CPC. The High Court too has recorded a finding that there was nothing to show that the plaintiff was aware of the death of the first defendant and yet knowing well about it, he would persist in filing the suit against a dead person. In conclusion, the learned Single Judge held that since plaintiff-respondent had taken prompt action it clearly showed that he had acted in good faith. Thus the High Court made out a case for invoking the proviso to sub-section (1) of Section 21 of the Act in favour of the plaintiff-respondent. Sequelly, the High Court found no difficulty in allowing IA No. 785 of 1975 permitting change of the provision whereunder IA No. 265 of 1975 was filed and in allowing IA No. 265 of 1975 ordering the suit against the heirs and legal representatives of Defendant 1 to be dating back to 14-11-1974, the date on which the plaint was originally presented."

(emphasis supplied)

14. In Banwari Lal v. Balbir Singh, (2016) 1 SCC 607, Defendant 1 (who was Respondent 1 in the first appeal), had expired 2 years prior to the decision in the first appeal, but no steps were taken to bring his legal representatives on record. The first appellate court decided in favour of the plaintiff. When the matter came up in second appeal, the legal representatives of Defendant 1 filed an application for condonation of delay and restoration. This Court though observed that the application ought to have been filed under Order 22 Rule 4 of the Code 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 was not maintainable, had proceeded to allow the application on the ground that it would be unjust to non-suit the applicant on the ground of technicalities. This Court permitted the legal representatives of Defendant 1 to convert the application into one filed under Order 22 Rule 4 of the Code.

15. In the cases relied upon by the respondents viz. Jayalaxmi Janardhan Walawalkar v. Lilachand Laxmichand Kapasi, 1998 SCC OnLine Bom 354 : (1998) 3 Mah LJ 618 and in Madhukar Ramchandra Keni v. Vasant Jagannath Patil, 2013 SCC OnLine Bom 374 : (2013) 4 Mah LJ 403 , the death had occurred during the pendency of the matter and consequently the suit stood abated. The case of Arora Enterprises Ltd. v. Indubhushan Obhan, (1997) 5 SCC 366 is also not applicable as it deals with the finality of an abatement order. In that context, the courts have concluded that the only course open to the appellant-plaintiff in case if the death occurs in a pending matter, is to file an application under Order 22 Rule 4 of the Code, and not under Order 1 Rule 10 of the Code or under Section 151 of the Code.

16. In the matter on hand, though the trial court had rightly dismissed the application under Order 22 Rule 4 of the Code as not maintainable at an earlier point of time, in our considered opinion, it needs to be mentioned that the trial court at that point of time itself could have treated the said application filed under Order 22 Rule 4 of the Code as one filed under Order 1 Rule 10 CPC, in order to do justice between the parties. Merely because of the non-mentioning of the correct provision as Order 1 Rule 10 of the Code at the initial stage by the advocate for the plaintiff, the parties should not be made to suffer. It is by now well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. Ultimately, the courts are meant to do justice and not to decide the applications based on technicalities. The provision under Order 1 Rule 10 CPC speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party who is improperly joined, it can add anyone as a plaintiff or defendant if it finds that such person is a necessary or proper party. The Court under Order 1 Rule 10(2) of the Code will of course act according to reason and fair play and not according to whims and caprice.

17. The expression "to settle all questions involved" used in Order 1 Rule 10(2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject-matter thereof. Parliament in its wisdom while framing this rule must be held to have thought that all material questions common to the parties to the suit and to the third parties should be tried once for all. The Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties. There cannot be any dispute that the party impleaded must have a direct interest in the subject-matter of litigation. In a suit seeking cancellation of sale deed, as mentioned supra, a person who has purchased the property and whose rights are likely to be affected pursuant to the judgment in the suit is a necessary party, and he has to be added. If such purchaser has expired, his legal representatives are necessary parties.

18. In the matter on hand, since the purchaser of the suit property i.e. Defendant 7 has expired prior to the filing of the suit, his legal representatives ought to have been arrayed as parties in the suit while presenting the plaint. As such impleadment was not made at the time of filing of the plaint in view of the fact that the plaintiff did not know about the death of the purchaser, he cannot be non-suited merely because of his ignorance of the said fact. To do justice between the parties and as the legal representatives of the purchaser of the suit property are necessary parties, they have to be impleaded under Order 1 Rule 10 of the Code, inasmuch as the application under Order 22 Rule 4 of the Code was not maintainable.

19. As mentioned supra, it is only if a defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the Code can be invoked. Since one of the defendants i.e. Defendant 7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased Defendant 7 under Order 1 Rule 10 of the Code, for the simple reason that the plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties, subject of course to the law of limitation. Normally, if the plaintiff had known about the death of one of the defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that the High Court experienced in granting the application filed by the plaintiff under Order 1 Rule 10 of the Code discloses, with great respect, a hypertechnical approach which may result in the miscarriage of justice. As the heirs of the deceased Defendant 7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the courts are meant to do substantial justice between the parties and that technical rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice.

20. Having regard to the totality of the narration made supra, there is no bar for filing the application under Order 1 Rule 10, even when the application under Order 22 Rule 4 of the Code was dismissed as not maintainable under the facts of the case. The legal heirs of the deceased person in such a matter can be added in the array of parties under Order 1 Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial.

21. In view of the above, the impugned judgment of the High Court is set aside. The appeal is allowed. The trial court is directed to implead the legal representatives of deceased Defendant 7 and bring them on record, subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code, as well as under Section 21 of the Limitation Act, 1963, to be decided during the trial."

Thus, in the view of above settled preposition, the Suit or Appeal, as the case may be, filed against the dead person(s) in regard to whom the plaintiff(s) or appellant(s), as the case may be, was/were not aware before filing suit or appeal, would not be non-est. From the law, referred above, it is crystal clear that the Suit or Appeal would not be dismissed only on the ground that the same has been filed against dead person(s) and the plaintiff(s) or appellant(s), as the case may be, can be permitted to bring on record the legal heirs of the deceased who were indvertently impleaded.

In view of the aforesaid, this Court is not inclined to entertain the present petition.

Accordingly, it is dismissed.

Interim order, granted earlier, shall stands discharged.

The opposite party no. 1 is directed to consider the application(s) for substitutions pending before it in view of the law referred hereinabove, expeditiously.

Order Date :- 27.07.2023 Jyoti/-

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