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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> Supreme Court Mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice MANU/SC/1236/2017 - (03 Oct 2017) </td> </tr> <tr> <td align="left" valign="top">Pankajbhai Rameshbhai Zalavadia Vs. Jethabhai Kalabhai Zalavadiya (deceased) through L.Rs. and Ors.</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">Present appeal arises out of the judgment passed by the Gujarat High Court dismissing the Special Civil Application filed by the Appellant, consequently affirming the order passed by the trial Court rejecting the application filed under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (CPC). Appellant filed an application for impleading the legal representatives of deceased Defendant No. 7 on record, under Order 1 Rule 10 of the CPC. The application also came to be dismissed by the trial Court and confirmed by the High Court by passing the impugned judgment. The only question which is to be decided in this appeal is, whether the legal representatives of one of the Defendants can be impleaded under Order 1 Rule 10 of the CPC where such Defendant expired prior to the filing of the suit, particularly when the application filed by the Plaintiff to bring the legal representatives of the deceased on record under Order 22 Rule 4 of the CPC was dismissed earlier as not maintainable. 
Order 22 Rule 4 of the CPC, applies only in the case where the death of one of the several Defendants or the sole Defendant occurs during the subsistence of the suit. If one of the Defendants has expired prior to the filing of the suit, the legal representatives of such deceased Defendant cannot be brought on record in the suit under Order 22 Rule 4 of the CPC. 
In the matter on hand, the sale was made in favour of Defendant No. 7, and the validity of the sale deed was the subject matter of the suit. The purchaser of the property, i.e. Defendant No. 7, though dead at the time of filing the suit, was made one of the Defendants erroneously. The persons who are now sought to be impleaded under Order 1 Rule 10 of the CPC are the legal representatives of the deceased Defendant No. 7. Therefore, there cannot be any dispute that, the presence of the legal representatives of the deceased is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions in the suit. Their presence is necessary in the suit for the determination of the real matter in dispute. Therefore, they are needed to be brought on record, subject to the law of limitation, as contended under Section 21 of the Limitation Act. 
Merely because the earlier application filed by the Appellant under Order 22 Rule 4 of the CPC was dismissed on 09th September, 2009 as not maintainable, it will not prohibit the Plaintiff from filing another application, which is maintainable in law. There was no adjudication of the application to bring legal representatives on record on merits by virtue of the order dated 9th September, 2009. On the other hand, the earlier application filed under Order 22 Rule 4 of the CPC was dismissed by the trial Court as not maintainable, as Defendant No. 7 had died prior to the filing of the suit and that Order 22 Rule 4 of the CPC comes into the picture only when a party dies during the pendency of the suit. The only course open to the Appellant in law was to file an application for impleadment to bring on record the legal representatives of deceased Defendant No. 7 under Order 1 Rule 10 of the CPC. Hence, the order passed by the trial Court on the application filed under Order 22 Rule 4 of the CPC, dated 09th September, 2009, will not act as res-judicata. 
Order 1 Rule 10 of the CPC enables the Court to add any person as a party at any stage of the proceedings, if the person whose presence in Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the CPC, empowers the Court to substitute a party in the suit who is a wrong person with a right person. If the Court is satisfied that, the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the Court finds that, in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons. Order 1 Rule 10(2) of the CPC gives wide discretion to the Court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit. 
In the case of Ram Prasad Dagduram v. Vijay Kumar Motilal Mirakhanwala and Ors., a bench by majority held that, the legal representatives of a party can be added under Order 1 Rule 10 of the CPC, but the date on which they were impleaded shall be the date on which the suit was instituted by or against them. In the said matter, this Court on facts held that the suit was barred by limitation as per Section 22 of the Limitation Act of 1908. This Court, though it concluded that the Court has got the power to join a particular person as a party under Order 1 Rule 10 of the CPC, did not interfere in the matter inasmuch as this Court found that the suit was barred by limitation. It is relevant to note that the said suit was of the year 1958. Since the Limitation Act, 1963 (now in force) was at that time not in existence, this Court applied the old limitation law and held that the suit was barred by limitation. As of now, the proviso to Section 21(1) of the Limitation Act 1963 empowers the Court to direct that the suit shall be deemed to have been instituted on an earlier date, where the omission to include a new Plaintiff or Defendant was due to a mistake made in good faith. Therefore, it is open to the Plaintiff in the matter on hand to prove "good faith" on his part in not including the legal representatives of deceased Defendant No. 7, during the course of trial of suit. 
This Court in the case of Karuppaswamy and Ors. v. C. Ramamurthy, has permitted the Plaintiff to modify the application filed by him under Order 22 Rule 4 of the CPC, to make it an application under the provisions of Sections 151 and 153 of the CPC. In the said matter also the suit was filed against a dead person. This Court proceeded further to conclude that the Plaintiff has shown good faith as contemplated Under Section 21(1) of Limitation Act and hence the impleadment of the legal representatives/heirs must date back to the date of the presentation of the plaint. 
In the matter on hand, though the trial Court had rightly dismissed the application under Order 22 Rule 4 of the CPC as not maintainable at an earlier point of time, in our considered opinion, it needs to be mentioned that the trial Court at that point of time itself could have treated the said application filed under Order 22 Rule 4 of the CPC as one filed under Order 1 Rule 10 of the CPC of Civil Procedure, in order to do justice between the parties. Merely because of the non-mentioning of the correct provision as Order 1 Rule 10 of the CPC at the initial stage by the advocate for the Plaintiff, the parties should not be made to suffer. It is by now well settled that, a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. Ultimately, the Courts are meant to do justice and not to decide the applications based on technicalities. The provision under Order 1 Rule 10 Code of Civil Procedure speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party who is improperly joined, it can add any one as a Plaintiff or Defendant if it finds that such person is a necessary or proper party. The Court under Order 1 Rule 10(2) of the CPC will of course act according to reason and fair play and not according to whims and caprice. The expression "to settle all questions involved" used in Order 1 Rule 10 (2) of the CPC is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject matter thereof. 
The Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties. There cannot be any dispute that, the party impleaded must have a direct interest in the subject matter of litigation. In a suit seeking cancellation of sale deed, a person who has purchased the property and whose rights are likely to be affected pursuant to the judgment in the suit is a necessary party, and he has to be added. If such purchaser has expired, his legal representatives are necessary parties. In the matter on hand, since the purchaser of the suit property, i.e., Defendant No. 7 has expired prior to the filing of the suit, his legal representatives ought to have been arrayed as parties in the suit while presenting the plaint. As such impleadment was not made at the time of filing of the plaint in view of the fact that the Plaintiff did not know about the death of the purchaser, he cannot be non-suited merely because of his ignorance of the said fact. To do justice between the parties and as the legal representatives of the purchaser of the suit property are necessary parties, they have to be impleaded under Order 1 Rule 10 of the CPC, inasmuch as the application under Order 22 Rule 4 of the CPC was not maintainable. 
It is only if a Defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the CPC can be invoked. Since, one of the Defendants i.e. Defendant No. 7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased Defendant No. 7 under Order 1 Rule 10 of the CPC, 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. Normally, if the Plaintiff had known about the death of one of the Defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that, the High Court experienced in granting the application filed by the Plaintiff under Order 1 Rule 10 of the CPC discloses, with great respect, a hyper-technical approach which may result in the miscarriage of justice. As the heirs of the deceased Defendant No. 7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the Courts are meant to do substantial justice between the parties and that technical Rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice. 
There is no bar for filing the application under Order 1 Rule 10 of CPC, even when the application under Order 22 Rule 4 of the CPC was dismissed as not maintainable under the facts of the case. 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 Section 21 of the Limitation Act, to be decided during the course of trial. The impugned judgment of the High Court is set aside. The appeal is allowed. The Trial Court is directed to implead the legal representatives of deceased Defendant No. 7 and bring them on record, subject to the plea of limitation as contemplated under Order 7 Rule 6 of the CPC, as well as under Section 21 of the Limitation Act, 1963, to be decided during the trial.</td> </tr> <tr> <td align="left" valign="top" >Relevant : Ram Prasad Dagduram v. Vijay Kumar Motilal Mirakhanwala and Ors. <manuid>MANU/SC/0014/1966</manuid>: AIR 1967 SC 278, Karuppaswamy and Ors. v. C. Ramamurthy, <manuid>MANU/SC/0354/1993</manuid>: 1993 (4) SCC 41</td> </tr> <tr> <td align="left" valign="top" >Tags : Legal representatives, Impleadment, Rejection, Validity</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>