Sheth Hasmukhlal Ganpatram vs Legal Heirs Of Ratilal Mohanlal Thaker

G.R. Udhwani, J.—The plaintiff is the original landlord who instituted Regular Civil Suit No. 7 of 1977 for eviction of original defendant. By order dated 7.7.1983 passed below Exh. 1 the suit was dismissed for want of production of documents directed by the Court. The matter was taken in appeal being Civil Misc. Appeal No. 78 of 1983 on 22.11.1985. In the meanwhile, since the original defendant expired, the cause title of the said appeal was so framed as to show the heirs of original defendants as the opponents. By order dated 22.11.1985 Civil Misc. Appeal No. 78 of 1983 was allowed and the suit was restored. The notice/summons in the restored suit was issued to all the opponents who had appeared in appeal being defendants No. 1/1 to 1/7 being the heirs of deceased original defendant. Defendant No. 1/4 filed a written statement at Exh. 94. Defendant No. 1/5 could not be served and therefore the trial court closed the proceedings against him. Rest appeared but did not put in their defence. During the pendency of this revision application, defendant No. 1/2 had expired and therefore deleted. In the trial court evidence was adduced by plaintiff and the learned counsel appearing for the defendants No. 1/1, 1/2, 1/3, 1/4, 1/6 and 1/7 cross-examined the plaintiff. The said defendants, however, could not adduce the evidence as their right to do so was closed for non-compliance of the order to deposit arrears of rent in the trial court. In these set of circumstances the suit proceeded and ultimately it was decreed on 30.1.1993. Thereafter the original plaintiff-petitioner herein moved an execution petition, and since the cause title of the decree did not contain the names of the above heirs of the deceased original defendant an application being Civil Misc. Application No. 13 of 2001 was tendered before the trial court u/s 151 and 152 of the CPC (for short "CPC") for amendment of the decree. By impugned order dated 19.8.2002 the trial court declined an amendment to the decree. The petitioner-original plaintiff is therefore before this Court questioning the said order.

It is also required to be noted that during the pendency of the suit and before the above heirs participated in the proceedings, an application under Order 22 Rule 4 of CPC was instituted for bringing heirs of deceased defendant on record, but after issuance of notice, it remained undecided. The defendant No. 1/4 in his written statement raised an objection as to defect in the title for want of heirs of deceased defendant on record. However, since the defence was struck out, no legal contention even was raised on this count before the trial court.

The submission made by learned counsel for the petitioner is that, since the petitioner had already joined all the necessary heirs in the appellate court and the suit was restored after hearing them, effectively the heirs represented the estate of the deceased defendant, and after the suit was restored, they appeared and participated, and therefore, though technically, the application for bringing heirs of the defendant was not decided by the trial court they were effectively on record. It was also contended that the defendant No. 1/5 could not be served in the suit but was served in this revision application but not appeared, and having known about the proceedings, had not preferred to oppose them, and therefore, in his submission, effectively defendant No. 1/5 was served. The contention is that the defendant No. 1/5 has so far not challenged the decree on the ground that it was passed ex-parte against him. It was also contended that one of the heirs could have validly represented the estate of the deceased defendant, and therefore, even in absence of defendant No. 1/5, the estate of the deceased was properly represented by other heirs, and therefore, there was no defect in the title of the suit on that count as well.

Vehemently opposing the petition, learned counsel for the respondents No. 1/1 and 1/3 would contend that application Exh. 72 moved by the original plaintiff-petitioner herein for bringing, heirs of original defendant on record was not decided as the petitioner did not press for it at any point of time after issuance of notice, and in the above written statement the objection to the cause title of the plaint was raised in absence of heirs of deceased defendant being on record. Learned counsel would also submit that the defence of defendants was struck out on 31.3.1992 by order below Exh. 174, however, the judgment did not even discuss any arguments, as, in his submission, the defendants were not allowed to argue on the ground of their defence being struck off. In his submission the trial court could not have prevented the defendants from arguing the case, albeit; without considering their defence. In his submission, striking of defence would only mean that the defendants are not permitted to raise the issues but were certainly entitled to defend the issues raised by the plaintiff. Learned counsel would also submit that Sections 151 and 152 of CPC were not applicable as there was no clerical error whatsoever in drawing the decree because the decree was drawn on the basis of cause title of the plaint. In his submission therefore this petition is required to be dismissed.

Having considered the arguments advanced by learned counsel as also perused the relevant papers, it appears that the fact that Civil Misc. Appeal was filed against the heirs of defendant and the fact that the case was restored and the fact that the heirs of defendant appeared in the court below, and one of them had also filed a written statement and all the defendants who appeared, cross-examined the plaintiff are not in dispute. It is true that the plaintiff had moved an application Exh. 72 for bringing heirs of defendant on record and that application was not decided before the decree came to be passed. However, the fact remains that the heirs of deceased defendant who appeared before the trial court considered themselves as the defendants and fully participated in the proceedings; the decree was therefore passed in their presence and it was not an ex-parte decree except against the defendant No. 1/5 who has preferred not to challenge the ex-parte decree so far. The conduct of the said defendants therefore gave out to the court as though, they were defendants; as the heirs of deceased defendant. May be that their defence was struck out for non-payment of arrears of rent but that doesn''t mean that they did not represent the estate of the deceased. It is pertinent to note that none of the defendants challenged the order striking out the defence passed below Exh. 174, and thus, the said order was accepted and thereafter there was effective participation. Further, there is nothing on record except the absence of the arguments by the defendants in the judgment and decree, prohibiting the defendants from arguing their case nor any of the defendants raised such grievance before or after passing of the judgment and decree before any forum whatsoever. Therefore this Court does not find any substance in the arguments advanced by learned counsel for the respondents No. 1/1 and 1/4. That apart, this issue as such does not fall for consideration of this Court in this proceedings which arise out of refusal of the trial court to amend cause title of the decree.

Section 151 of the CPC intends to save inherent powers of the Court to make necessary orders for the ends of justice or to prevent abuse of the process of Court. Since, as discussed above, the estate of the deceased defendant was properly represented by his heirs by effectively participating in the suit without even raising any objections in their arguments as to defect in the title of the suit for want of heirs of deceased defendant on record, effectively the decree can be said to have been passed against the heirs of deceased defendant. The decree however was drawn on the cause title of the plaint excluding the heirs of deceased defendant therefrom. In the facts and circumstances of this case, this was a technical error in drawing the decree and can be corrected at any stage. By refusing to allow the decree holder to amend the cause title as aforesaid, the trial court was in serious jurisdictional error. The consequence of its order entails into defeating the ends of justice. In the facts and circumstances of the case, the trial court ought to have exercised the powers u/s 151 of the CPC for ends of justice. In view of above discussion, this petition is required to be allowed. The same is, therefore, allowed. The impugned order dated 19.8.2002 passed by the learned Civil Judge (J.D.), Siddhpur below Exh. 1 in Civil Misc. Application No. 13 of 2001 is quashed and set aside and the amendment as prayed for in Civil Misc. Application No. 13 of 2001 shall be granted by the trial court. During the pendency of this petition, according to learned counsel for the petitioner, the respondent No. 1/2 Pushpaben Ratilal Thaker had expired. It will be open for the original plaintiff to move the trial court with appropriate application which will be dealt with by the trial court in accordance with law. Rule is made absolute. There shall be no order as to costs.