Agarwal (Smt.) and Another vs Arya Vidya Sabha and Another

Dipak Misra, J.

In this civil revision preferred u/s 115 of the CPC (hereinafter referred to as ''the Code'') the applicants have called in question the propriety of the order dated 20.11.98 passed by the learned IXth Civil Judge Class-II, Jabalpur in Civil Suit No. 44-A/95.

The facts as have been unfolded are that the non-applicant No. 1, Arya Vidha Sabha, a registered society filed a suit for ejectment of the non-applicant No. 2. According to the Plaintiff, Shri G.S. Agrawal was the original tenant and the non-applicant No. 2. was the sub-tenant. During the pendency of the suit it came to be known to the Plaintiff that G.S. Agrawal had died and, accordingly, the Plaintiff filed an application under Order 22 Rule 4 of the Code for substitution of his legal heirs. It was objected to by the Defendant No. 2 as well as by the legal representatives of said G.S. Agrawal on the ground that said G.S. Agrawal had expired on 15.8.92 long before filing of the suit and as the suit had been filed against a dead person the entire proceeding is null and void and the concept of Order 22 Rule 4 is not applicable: The learned trial Judge accepted the contention of the present applicants and rejected the application for substitution. The non-applicant No. 1, thereafter, filed an application for review of the order which met with similar fate. Thereafter, the non-applicant No. 1 filed an application under Order 1 Rule 10(2) of the Code and prayed that the legal heirs of G.S. Agrawal be, added as parties to the suit as they are necessary parties. The said application was objected to by the Defendant No. 2. It was put forth before the trial Court that once the application to bring the legal representatives of deceased G.S. Agrawal had already been rejected it cannot be allowed under Order 1 Rule 10 of the Code. The learned trial Judge did not accept the contentions that the filing of suit was ab initio void and the legal representatives could not be brought on record under Order I Rule 10 of the Code as the application under Order XXII Rule 4 of the Code was rejected earlier. Being of this view he directed the legal representatives of G.S. Agrawal to be brought on record. Feeling aggrieved by the said order the legal representatives have approached this Court in this civil revision.

I have heard Mr. J.P. Agrawal, learned Counsel for the Petitioners, and Mr. Manoj Sanghi, learned Counsel for the non-applicants.

The moot question that arises for consideration is whether the Court had jurisdiction in the facts of the case to entertain an application under Order 1 Rule 10(2) of the Code after rejecting the prayer under Order XXII Rule 4 of the Code. To appreciate the factual scenario it is apposite to refer to Order XXII Rule 4 of the Code. It reads as under:

Procedure in case of death of one of several Defendants or of sole Defendant. (1) where one of two or 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, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said Defendant notwithstanding the death of such Defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where:

(a) the Plaintiff was ignorant of the death of a Defendant, and could not, for that reason, make an application for the substitution of the legal representative of the Defendant under this rule within the period specified in the Limitation Act, 1963 and the suit has, in consequence, abated, and

(b) the Plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963, for setting aside the abatement and also for the admission of that application u/s 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,

the Court shall, in considering the application under the said Section 5. have due regard to the fact of such ignorance, if proved.

It is well settled in law that this Rule comes into play where the death of a Defendant occurs in a pending suit. The Rule will not apply if such death had occurred before the institution of the suit. In this context, I may profitably refer to the decision rendered in the case of United Commercial Bank Vs. Dharam Paul Singh and Others, wherein it has been held as follows:

There cannot be two opinions about the proposition of law that the civil suit having been filed against a dead person cannot be deemed to be a proper suit against his legal representatives. It is further well settled that the provisions of Order 22, Rule 4, CPC cannot apply to a situation like this for the simple reason that the Defendant 2 was not alive on the day when the suit had been instituted. It is only if a Defendant dies during the pendency of the suit that the said provisions can be invoked

Similar view has also been expressed in the case of State Trading Corporation of India Ltd. Vs. K.V. Vaidyalingam and Others, The High Court of Rajasthan in the case of Mohammad Aleem v. Maqsood Alam and Ors. AIR 1989 RH 43 while dealing with the substitution of judgment-debtor has held as under:

Order 22, Rule 4, Code of Civil Procedure, is applicable only to those cases where the judgment-debtor dies during the pendency of the proceedings and in such a case an application is to be moved before the Court under Order 22 Rule 4, Code of Civil Procedure, for bringing on record the legal representatives of the deceased party. In cases where a party has died before the substituting the legal representatives does not arise and the case does not fall under Order 22, Rule 4, Code of Civil Procedure.

In view of the aforesaid enunciation of law 1 am of the considered view that the provisions enshrined under Order XXII Rule 4 are not applicable in respect of the Defendant who had died before the iastitution of the suit. In view of this, it can irresistibly be concluded that the learned trial Judge had acted within his jurisdiction when he refused to exercise the powers under Order XXII Rule 4 of the Code.

The learned Counsel for the non-applicants also contended that once an application under Order XXII Rule 4 of the Code has been rejected Court has no power to implead the legal representatives under Order I Rule 10(2) of the Code. Thus, the point for consideration is whether Order I Rule 10 of the Code could have been taken recourse to. It is to be borne in mind that if in respect of a Defendant who dies during the pendency of the suit an application under Order XXII Rule 4 is rejected the affected/aggrieved party cannot take recourse to the Order I Rule 10 of the Code, This view of mine gets support from the decision rendered in the case of Durga Charan Parida Vs. Basant Kumar Parida and Others, where in it has been held as under:

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, Code of Civil Procedure. 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 Plaintiffs application for substitution, it had no jurisdiction to entertain an application under Order 1 Rule 10, CPC and to allow the same.

Similar view has been expressed in the case of Kanhu Gauda Vs. D. Kodandi Dora and Others,

The present factual matrix is quite different Here, the Defendant had not died during the pendency of the suit but had already expired much before the institution of the suit. Mr. Agrawal, learned Counsel for the Petitioner, has placed heavy reliance on the decision rendered in the case of C. Muttu v. Bharath Match Works, Sivakasi AIR 1964 kar 293. But the ratio of the said case is quite different and in my considered view the same really does not support the Petitioner. I may quote the relevant passage:

A carefulf review of the decisions of the several High Courts relating to substitution of a Defendant in a suit in place of the original Defendant makes it clear (1) that no such substitution can be permitted in a case where there was a sole Defendant, (2) where there are more Defendants than one and one of them was dead when the suit was tiled, the Courts have held that the legal representatives of the deceased Defendant can be brought on record subject to any question of limitation that may be raised by the legal representatives of the deceased person who were brought on record as the suit had been validly presented in so far as the living Defendants are concerned.

Reading the aforesaid passage in proper perspective it is luminously clear that the matter would be quite different when there is a sole Defendant. When there are more than one Defendant Order I Rule 10(2) of the Code can be taken recourse to. This view has been taken by Kania, J. (as his Lordship then was) in the case of Nevandram Javermal Vs. Devikabai Haridas Gandhi and Others and R. Sunderdas and Another, In the case of Musammat Ashgari Bibi Vs. Shamal Kumar Basu Mullick and Others, the learned Single Judge has held that in a suit where there are three joint Defendants and one of them had died before the institution of the suit, the legal heirs of the deceased can be added under Order I Rule 10(2) of the Code alter expunging the name of the deceased Defendant. It is worth noting here that in the present case there was another Defendant from the very beginning. Applying the law laid down in various cases to the present factual matrix, 1 am of the considered opinion that the order passed by the learned trial Judge deserves the stamp of approval of this Court and there is no jurisdictional error to interfere with.

In the result, the civil revision, being devoid of merit, stands dismissed. However, in the peculiar facts and circumstances of the case there shall be no order as to costs.