Perumal Gounder and Others vs Annamalai Gounder

Govardhan, J.—This civil revision petition is against the order passed by the learned District Munsif, Tiruvannamalai in I.A. No. 1124 of

1992 in O.S. No. 884 of 1981 allowing the application filed under Order 1, Rule 10 of the Code of Civil Procedure.

2.The case of the applicant is as follows:

The first defendant died during the pendency of the suit. Since no steps have been taken for impleading the legal representatives of the first

defendant, the petition has been filed for impleading them under Order 1, Rule 10 of the Code of Civil Procedure. The legal procedures are only to

achieve the ends of justice. Unless the legal representatives of the deceased first defendant are impleaded, they will be put to irreparable loss and

hardship.

The fourth respondent filed a counter adopted by the respondents 2 and 3. stating as follows: The petitioners have not taken any steps for

impleading the legal representatives of the deceased Amavasai Gounder. The three applications filed by the petitioner were dismissed on

19.7.1991. The legal representatives of Amavasai alone are to be impleaded as parties. The suit has not been dismissed as abated. The suit has

been filed for declaration and permanent injunction. When such a suit has been dismissed, their legal representatives cannot be impleaded as

parties. The remedy open to them is to prefer an appeal or review. The order passed against the first defendant on 19.7.1991 is binding on the

legal representatives of the first defendant. It cannot be restored by filing an application under Order 1, Rule 10 of the Code of Civil Procedure.

The application is therefore liable to be dismissed.

The trial court, after considering the rival Contentions of the both parties, has passed the impugned order holding that deciding a suit ex parte

without giving an opportunity to the plaintiff, cannot be considered in the interests of justice and therefore, the application is allowed.

It is against this order, the present revision has been filed.

The learned Counsel appearing for the revision petitioner would argue that on account of the failure of the plaintiff to bring the legal

representatives of the deceased first defendant on record, the suit against the first defendant abated, and the applications filed by the plaintiff for

condoning the delay, for setting aside the abatement and bringing the legal representatives of the first defendant were dismissed by the learned

District Munsif and as such, the suit against the first defendant has abated and in respect of it, the plaintiff has filed an application under Order 1,

Rule 10 of the CPC for bringing the legal representatives of the first defendant as parties to the suit and it has been allowed by the learned District

Munsif and by virtue of the said order, a valuable right acquired by the revision petitioners on account of the abatement of the suit against the first

defendant is sought to be deprived and hence the revision petitioners have come forward with this revision.

It is a recognised principle of law that when a suit or an appeal abates, a very valuable right accrues to the other party and such a right is not to

be ignored or interfered with, lightly in the name of doing substantial justice to the party as depriving a party of a lawful right created in the

administration of justice in the absence of good grounds results in injustice to the party concerned. We have to approach the case on hand bearing

the above proposition of law, since the learned Counsel appearing for the respondent has drawn the attention of this Court to the order passed by

the learned District Munsif. Wherein the learned District Munsif has observed that, ""taking steps by the plaintiff to implead the legal representatives

of the deceased first defendant, even though is correct, deciding the same without giving an opportunity to the plaintiff may not be in the interests of

justice and therefore, the application is ordered"". The above observation of the learned District Munsif shows that in the interests of justice, the

order has been passed by the learned District Munsif.

The learned Counsel appearing for the revision petitioners would contend that on account of the failure of the plaintiff to bring the legal

representatives of the deceased first defendant on record, in time, the suit against the first defendant has abated and all the three applications filed

by the plaintiff viz., to condone the delay; to set aside the abatement and to bring the legal representatives of the deceased first defendant on record

having been dismissed, it is not open for the plaintiff to come forward with another application under Order 1, Rule 10 of the CPC on the ground

that the earlier application to bring the legal representatives on record, is an application filed under Order 22, Rule 4 of the CPC which is a specific

provision and when a specific provision has been invoked by a party and having failed in it, the same party cannot be allowed to invoke the general

provision to seek the same order for which the petition under specific provision was filed. According to the learned Counsel, allowing an

application filed under Order 1, Rule 10 of the CPC in such circumstances would enable the plaintiff herein to circumvent the order passed in the

earlier application filed under Order 22, Rule 4 of the CPC and therefore, it cannot be sustained. The learned Counsel has also cited number of

decisions on this aspect. As per the decision reported in Surendra Nath Sarkar and Others Vs. Manatab Monian and Others, , it has been held as

follows:

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) or of Section 151.

In the decision reported in Kanhu Gauda Vs. D. Kodandi Dora and Others, , it has been held that where an application under Order 22, Rule 4 to

bring the legal representatives of a deceased party on record has been dismissed, the court cannot in exercise of power under Order 1, Rule 10,

implead the legal representatives. The learned Judge has referred to an observation in the decision reported in Durga Charan Paridav. Basanta

Kumar Parida (1974) 40 Cut. L.T. 885, that, ""it can never be the intention of the Code to take away the 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, and to hold

otherwise, would amount to going against the scheme of the Code and would put the litigants to great hardship and prejudice. Similarly in the

decision reported in Chinna and Others Vs. N. Thiruviam and Others, , it has been held that when the specific provision has been invoked by a

party and having failed in it, the same party cannot be allowed to invoke the general provisions to seek the same order for which the petition under

the specific provision was filed and to allow the petition to enable the party to circumvent the order passed in the petition under Order 22, Rule 4,

C.P.C. The learned Counsel appearing for the respondent would on the other hand argue that this is a revision petition filed u/s 115 of the CPC in

which, the order passed by the learned District Munsif in the interests of justice, has been challenged as improper and the revision is therefore not

maintainable and relies upon certain decisions for those propositions. As per the decision reported in S.N. Kuba v. P.P.I. Vaithyanathan 1988

T.L.N.J. 1, it has been held that discretionary jurisdiction should not be exercised where order of Subordinate Court renders justice while

considering Section 115 of the Code of Civil Procedure. In the decision reported in AIR 1940 215 (Privy Council) relied by the learned Counsel,

it has been held that it is open to the Judge in his discretion under Order 1, Rule 10 to add as a party to the suit the representative of a person

against whom the suit has abated for the purpose of giving effect to the rights of the parties. According to the learned Counsel appearing for the

respondent, when the Privy Council has held that it is only a discretion of the judge to add a party under Order 1, Rule 10, C.P.C.; and the learned

District Munsif has exercised the above discretion in the interests of justices it cannot be the subject-matter of a revision contemplated u/s 115 of

the Code of Civil Procedure. The learned Counsel would further argue that proviso (b) to Section 15 of the CPC contemplates a revision only in

cases where the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it is made and in

the present case, even if the order is allowed to stand, it would-not cause irreparable injury to the party against whom it is made viz., the revision

petitioners and therefore the revision itself is not maintainable.

The learned Counsel appearing for the revision petitioners would on the other hand argue that as per proviso (a) to Section 115 of the Code of

Civil Procedure, where the Order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other

proceeding, the revision would lie. According to the learned Counsel, the order dismissing the application for impleading the revision petitioners

under Order 22, Rule 4 of the Code of Civil Procedure, has become final and the present impugned order is contrary to the above order and

therefore, a revision would lie u/s 115, C.P.C. We have already seen that it is a recognised principle that when a suit or appeal abates, a very

valuable right accrues to the other party. When the suit against the first defendant has abated, a very valuable right has accrued to the revision

petitioners. This right cannot be ignored or interfered with by bringing them on record. It is to be borne in mind the following propositions: The laws

of procedure are devised for advancing justice and not imposing the same; the Code is designed only to facilitate justice. But, at the same time, it is

always to be borne in mind that the procedural laws are as valid as any other law and are enacted to be observed and have not been enacted

merely to be brushed aside by the court as per the decision reported in Bhagwan Swaroop and Others Vs. Mool Chand and Others, . Their

Lordships have further observed in the above decision as follows:

Justice means justice to the parties in any particular case and justice according to law. If procedural laws are properly observed, as they should be

observed, no problem arises for the Court for considering whether any lapse in the observance of the procedural Jaw needs to be excused or

overlooked.

...Execution of lapses in compliance with the laws of procedure, as a matter of course, with the avowed object of doing substantial justice to the

parties may in many many cases lead to miscarriage of justice.

In the case on hand, the plaintiff has invoked Order 22, Rule 4, CPC and has failed. It is a specific provision. Yet, the plaintiff has filed an

application under Order 1, Rule 10 of the CPC which is a general provision. The order passed by the learned District Munsif reads as if it is for

meeting the ends of justice, the application has to be allowed. I am of opinion that it is a typical case in which the learned District Munsif has

overlooked the fact that lapses in the observance of the procedural law will lead to miscarriage of justice. Therefore, this is a fit case in which the

proviso (a) to Section 115 of the CPC applies in all grounds and, therefore, this is a fit case in which the order of the learned District Munsif has to

be set aside by exercising the powers u/s 115 of the Code of Civil Procedure. In that view, I hold that the revision petitioners are entitled to set

aside the order passed by the trial court.

In the result, the civil revision petition is allowed setting aside the order passed by the learned District Munsif in I.A. No. 1124 of 1992 and

dismissing the I.A. No. 1124 of l992. No costs.