Julekha Begum vs Badrunnisa

Heard on I.A. No. 09/2021 which is an application filed by respondent No. 1 under Order 1 Rule 10A of the Code of Civil Procedure to bring legal representatives of deceased respondent No. 17-Kamrunnisa on record.

Learned counsel for the respondents would submit that during pendency of the first appeal respondent No. 17/ Kamrunnisa left for heavenly abode in the year 2012 and the said fact of death of respondent No. 17-Kamrunnisa is in knowledge of the appellants, but deliberately the legal heirs of the said respondents have not been brought on record. However, unfortunately, the only legal heir i.e. daughter of deceased respondent No. 17 has also left for heavenly abode namely Smt. Nikhat Parveen on 20.04.2021, who was mother of the applicants herein and the appellants are duty bound to bring legal heirs of the deceased/respondent on record.

Learned counsel for the respondent No. 1 would further submit that to deny the share of the deceased/ respondent No. 17, the appellant has not impleaded the legal heirs of respondent No. 17 and at the same time made for deletion of the same, which has necessitated the respondents to file an application under Order 1 Rule 10A read with Section 151 of the C.P.C. He would also refer to the judgment rendered by Hon'ble the Supreme Court in Pankajbhai Rameshbhai Zalavadia Vs. Jethabhai Kalabhai Zalavadiya (Deceased) through L.Rs. & others (2017) 9 SCC 700 and would submit that 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. 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 dispute with regard to Section 21 of the Limitation Act, has to be decided during the course of trial.

Learned counsel for the appellant has filed reply contending that respondent No. 17 had expired during pendency of the suit which was filed by respondent No. 1-Smt. Badrunnisa on 18.10.2010 for grant of partition and separate possession of the suit land wherein respondent No. 17 has been arrayed as defendant No. 17. This fact was well within the knowledge of the plaintiff- Badrunnisa. On perusal of the plaint averment as well as the judgment and decree passed by the trial Court, it is quite vivid that they are close relatives. Despite this, respondent No. 1 in the appeal namely Smt. Badrunnisa who was plaintiff before the trial Court has not moved any application to bring legal representative of deceased/defendant No. 17 on record.

In absence of such steps which were required to be taken by respondent No. 1, the judgment and decree passed against that dead person is illegal. He would further submit that there cannot be two types of decree passed against deceased and her legal representative of deceased or against the respondent who are contesting their case, therefore, the judgment and decree passed by the learned trial Court against dead persons is liable to be quashed by this Court. The respondents by way of this application tried to rectify the illegality, which is not curable in the garb of application filed under Order 1 Rule 10A of C.P.C.

He would refer to the judgment rendered by Hon'ble the Supreme Court in Hemareddi (Dead) through Legal Representatives Vs. Ramchandra Yallappa Hosmani & others (2019) 6 SCC 756 and would submit that in the garb under Order 1 Rule 10A of the C.P.C. he cannot bring proposed legal representative of deceased respondent No. 17 on record. He would further submit that as the limitation for taking action under Order 22 has already expired long back, which cannot be circumvented by resorting to the provisions of Order 1 Rule 10A of C.P.C.

I have heard learned counsel for the parties and perused the documents on record with utmost satisfaction.

Before adverting to the factual matrix of the case and submission projected by learned counsel for the parties, it is expedient for this Court to refer to relevant provisions of the C.P.C., which are necessary for just and proper adjudication of the case i.e. Order 22 Rule 3 & Order 1 Rule 10 of the C.P.C. which are extracted as under:-

Order 22 Rule 3 of C.P.C.-

“Procedure in case of death of one of several plaintiff or of sole plaintiff- (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the 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.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.”

Order 1 Rule 10 of C.P.C.-

“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 thought 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 thinks 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 copes 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.”

Learned counsel for respondent No. 1 would submit that as per the law laid down by Hon'ble the Supreme Court in Pankajbhai Rameshbhai Zalavadia (Supra), there is no impediment for this Court to allow the application filed under Order 1 Rule 10A of the C.P.C. to implead legal representative of deceased respondent No. 17 on record. On the other hand, learned counsel for the appellant would submit that since respondent No. 17 expired during pendency of the suit and judgment and decree has been passed against the dead person, therefore, this illegality cannot be cured and the application under Order 1 Rule 10A is not tenable and liable to be rejected by this Court.

From perusal for the judgment and decree and the facts projected by the parties, it is not in dispute that during pendency of the civil suit, respondent No. 17 expired and no application was moved by the plaintiff/respondent No. 1 during the trial. It would further reveal that despite knowing the facts that the plaintiff and all the respondents are close relatives, respondent No. 1 has not moved the application before the trial Court, deliberately.

Learned counsel for respondent No. 1 has relied upon the judgment rendered by Hon'ble the Supreme Court in Pankajbhai Rameshbhai Zalavadia (Supra), which is distinguishable on the facts of the present case as in that case, one of the defendants expired prior to filing of the suit and Hon'ble the Supreme Court has categorically held that since one of the defendants i.e. defendant No. 7 had expired prior to filing of the suit, there was no legal impediment in impleading the legal representatives of the deceased defendant No.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, whereas in the present case, respondent No. 17 expired during pendency of the suit, therefore, the judgment cited by learned counsel for respondent No. 1 is not applicable and distinguishable. In the said judgment Hon’ble the Supreme Court in paragraph 7 has also specifically held that the Order 22 Rule 4 C.P.C. applies only in case where death of one of the several defendants or sole defendant occurs during the subsistence of the suit. If one of the defendants expired prior to the filing of the suit, the legal representative of deceased defendant cannot be brought on record under Order 22 Rule 4 of C.P.C.

Hon'ble the Supreme Court in Sunkara Lakshminarasamma (Dead) by Legal Representatives Vs. Sagi Subba Raju & others (2019) 11 SCC 787, has held at paragraph 12 to 14 as under:-

“12. Order 22 Rule 4 CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. If the interests of the co-defendants are separate, as in the case of co-owners, the suit will abate only as regards the particular interest of the deceased party. In such a situation, the question of the abatement of the appeal in its entirety that has arisen in this case depends upon general principles. If the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties.

In the matter on hand, the absence of certain defendants who have been deleted from the array of parties along with the absence of legal representatives of a number of deceased defendants will prevent the court from hearing the appeals as against the other defendants. We say so because in the event of these appeals being allowed as against the remaining defendants, there would be two contradictory decrees in the same suit in respect of the same subject matter. One decree would be in favour of the defendants who are deleted or dead and whose legal representatives have not been brought on record; while the other decree would be against the defendants who are still on record in respect of the same subject matter. The subject matter in the suit is the validity of the two Wills. The Courts including the Division Bench of the High Court have consistently held that the two Wills are proved, and thus Veeraswamy being the beneficiary under the two Wills had become the absolute owner of the suit properties in question. Such decree has attained finality in favour of the defendants who are either deleted or dead and whose legal representatives have not been brought on record. In case these appeals are allowed in respect of the other defendants, the decree to be passed by this Court in these appeals would definitely conflict with the decree already passed in favour of the other defendants.

As mentioned supra, the Court cannot be called upon to make two inconsistent decrees about the same subject matter. In order to avoid conflicting decrees, the Court has no alternative but to dismiss the appeals in their entirety [see the judgment of this Court in the case of Shahazada Bi vs. Halimabi, (2004) 7 SCC 354].”

From the above stated legal proposition, it is quite vivid that the application under Order 1 Rule 10 of the C.P.C. cannot be pressed into service. Accordingly, I.A. No. 09/2021, filed by the respondent No. 1 under Order 1 Rule 10A of the Code of Civil Procedure for bringing legal representative of deceased respondent No. 17 on record, who expired during pendency of the civil suit, is liable to be and is hereby rejected.

List this case in the month of April, 2022.