Maj Rajbir Singh and Others vs Surinder Kaur and Others

G.C. Garg, J.—Akalsaran Singh and two others filed a suit against Nanaksaran Singh Hardial Singh and others for joint possession of the land as detailed in the plaint, and in the alternative for declaration that the gifts made by Hardial Singh, defendant No. 2 in favour of defendant No. 1 are illegal and without necessity and, thus not binding on them after the death of defendant No. 2. Hardial Singh, defendant No. 2 is alleged to have died during the pendency of the suit. Sons of defendant No. 1 moved an application under Order 22 Rule 4 of the CPC for being brought on record as legal representatives of Hardial Singh. They alleged that the deceased had left behind a will in their favour. The plaintiffs also moved an application dated September 29, 1992 for being brought on record as legal representatives of Hardial Singh, defendant No. 2, but they got their application dismissed as withdrawn on November 4, 92. The application moved by the sons of defendant No. 1, now petitioners, was however allowed by order dated October 19, 1992 and it was ordered that all the alleged legal heirs should come on the record.

It seems that as a result of allowing the said application by order dated October 39, 1992, the plaintiffs were ordered to file amended plaint after impleading heirs of defendant No. 2 as were permitted to be brought on the record. In the amended plaint, the plaintiffs not only arrayed themselves as plaintiffs but also as defendants being legal representatives of defendant No. 2, besides other set of legal representatives of the latter. Sons of defendant No. 1, the petitioners herein objected that the plaintiffs could not be arrayed as defendants as legal representatives of Hardial Singh, deceased. The trial Court by order dated May 14, 1993 over-ruled the objection by observing that the legal representatives of Hardial Singh have been impleaded in the amended plaint as per the order earlier passed and the amended plaint was quite in order. This is how the present revision came to be filed.

After hearing learned counsel for the parties, I am of the view that the learned trial Court erred in ordering the plaintiffs to file amended plaint after allowing the application for bringing on record the legal representatives of Hardial Singh, deceased defendant. No rule or law has been referred to by the counsel for the parties in support of this procedure being adopted except saying that it is being followed in routine. I cannot held commenting on this course being adopted. Bringing on record legal representatives of a deceased defendant or a plaintiff is nothing but an act of their substitution in place of such defendant or the plaintiff. They acquire no better right or title than the one the deceased had. They are bound by the pleadings of the deceased and the steps taken by him in the progress of the suit prior to his death. No right accrues to the plaintiffs, defendants or their legal representatives to amend the pleadings simply on the substitution of the legal representatives except to continue the suit from that stage. They or any one of them will get a right to amend the pleadings only after seeking specific permission of the Court under Order 6 Rule 17 of the Code or any law providing for the same. Giving effect to the order of substitution of legal representatives is only a ministerial/administrative act which has to be carried out by the Court officers or by the Presiding Officer himself or in any such like manner. Such an order gives no right to the plaintiffs, defendants or the legal representatives to file amended pleadings. Thus, an order directing the plaintiffs, defendants or the legal representatives to file amended plaint or the written statement after allowing the application under Order 22 of the Code or such like other provisions, is totally unwarranted. Such an action has caused a serious prejudice to the other party in some cases as the amended plaint/written statement not only gave effect to the order of bringing on record the legal representatives but brought on record the facts which were earlier not there and the other party insisted to have acquired a right to file his amended pleadings to the amended plaint or the written statement as the case may be. Thus, the action of the Court in directing the parties to file amended plaint or the written statement after allowing the application for bringing on record the legal representatives has to be depricated being illegal.

In the present case, application of the sons of defendant No. 1 for being brought on record as legal representatives of Hardial Singh, defendant No. 2 was allowed and the plaintiffs were directed to file the amended plaint. The plaintiffs while filing amended plaint not only arrayed the sons of defendant No. 1 as legal representatives of defendant No. 2 but also included their names as defendants being another set of legal representatives of defendant No. 2. The effect is that the plaintiffs appear in the array of parties both as plaintiffs and also as defendants. This indeed is a curious situation and, in my view, cannot be allowed to continue. The order of bringing on record the legal representatives of the deceased has only a limited application, namely, for representing the interest of the deceased, if any. In case any other right has accrued to the plaintiffs on account of death of defendant No. 2, they have an independent remedy to enforce the same according to law in any suit or by seeking amendment of the plaint. The order under revision has, thus, to be set aside and the names of the plaintiffs appearing in the array of parties of the suit as defendants have to be deleted from the array of the defendants.

It shall, however, be open to the plaintiffs/defendants and the legal representatives of defendant No. 2 to seek amendment of pleadings according to law having regard to the nature of the suit filed and the relief claimed therein and in the context of death of defendant No. 2. The parties shall also be entitled to take such other steps as may be permissible in law. 6. For what has been observed above, this revision succeeds and is allowed in the above terms. There shall be no order as to costs.