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TMI Blog2017 (10) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit had abated as against defendant no. 7. Initially, the appellant filed an application under Order 22 Rule 4 of the Code for bringing on record the legal representatives of deceased defendant no. 7. The trial Court while rejecting the said application on 09.09.2009 observed thus: "According to the ratio laid down in the above said cases Order 22 Rule 4 of Code will apply only when the party dies during the pendency of the proceeding. Further held that a suit against dead person is admittedly a nullity and therefore, Order XXII Rule 4 cannot be invoked. Further held that the provisions of Order XXII Rule 4 of Code and Order 1 Rule 10 of Code are different and independent. Therefore, according to heirs of deceased defendant, the heirs cannot be joined as party because the suit is filed against dead person. Now in this case, the endorsement for the bailiff for the death of defendant No. 7 made on 31.01.2009 and the present application is filed on 20.05.2009. The application is filed for setting aside abatement and to join the heirs in this suit. Moreover, there is no case of the plaintiff that he has no knowledge about the death of defendant No. 7 or he has made inquiry. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant in not arraying the legal representatives of deceased defendant no. 7 at the time of filing of the suit is a bona fide mistake and not a deliberate one. Since such mistake has occurred in good faith, the right to continue the suit against the legal representatives of deceased defendant no.7 remains. The trial has not yet begun and hence the issue of delay, if any, in bringing the legal representatives on record, will not prejudice the legal representatives of defendant No.7. Since the proposed parties are necessary parties to the suit and their impleadment cannot prejudice anybody, the interests of justice require bringing of the legal representatives of deceased defendant no. 7 on record. Per contra, learned counsel appearing on behalf of the respondents relying upon the catena of judgments reported in Ram Prasad Dagduram vs Vijay Kumar Motilal Mirakhanwala & Ors., AIR 1967 SC 278, Madhukar Ramachandra Keni vs Vasant Jagannath Patil & Ors., 2013 (4) Mh. L. J. 403, Jayalaxmi Janardhan Walawalkar & Ors. vs Lilachand Laxmichand Kapasi & Ors., 1998 (3) Mh. L. J. 618, Arora Enterprises Ltd. vs Indubhushan Obhan 1997 (5) SCC 366 contended that the trial Court as well as the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court things 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 copies 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit. 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 Code. Hence, the order passed by the trial Court on the application filed under Order 22 Rule 4 of the Code, dated 09.09.2009, will not act as res-judicata. 9. Order 1 Rule 10 of the Code 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 Code 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reasonable to believe that at least some of the appellants must have attended the funeral of deceased respondent 1, as contended on behalf of the contesting respondent 2. There is some force in the contention that when a specific provision is made as provided in Order 22, R. 4, a resort to the general provision like Order 1, Rule 10 may not be appropriate. But the laws of procedure are devised for advancing justice and not impeding the same. In Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425), this Court observed that a code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in Kalipar Das v. Bimal Krishna Sen(1983) 1 SCC 14. 5. In a suit for partition, the position of plaintiffs and defendants can be interchange-' able. It is that each adopts the same position with the other parties. Other features which must be noticed are that the appeal was filed somewhere in 1972. It has not come up for hearing and the matter came on Board only upon the application of the second respondent intimating to the Court that the 1st respondent had died ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "4. A comparative reading of the proviso to Sub-section (1) shows that its addition has made all the difference. It is also clear that the proviso has appeared to permit correction of errors which have been committed due to a mistake made in good faith but only when the court permits correction of such mistake. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. The proviso to Sub-section (1) of Section 21 of the Act is obviously in line with the spirit and thought of some other provisions in Part III of the Act such as Section 14 providing exclusion of time of proceeding bona fide in court without jurisdiction, when computing the period of limitation for any suit, and Section 17(1) providing a different period of Limitation starting when discovering a fraud or mistake instead of the commission of fraud or mistake. While invoking the beneficent proviso to Sub-section (1) of Section 2 1 of the Act an averment that a mistake was made in good faith by impleading a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence of the matter before the Court and the application under Order 1 Rule 10 of the Code was not maintainable, had proceeded to allow the application on the ground that it would be unjust to non-suit the applicant on the ground of technicalities. This Court permitted the legal representatives of defendant No. 1 to convert the application into one filed under Order 22 Rule 4 of the Code. In the cases relied upon by the respondents, viz., Jayalaxmi Janardhan Walawalkar (supra) and in the case of Madhukar Ramachandra Keni (supra), the death had occurred during the pendency of the matter and consequently the suit stood abated. The case of Arora Enterprises (supra) is also not applicable as it deals with the finality of an abatement order. In that context, the Courts have concluded that the only course open to the plaintiff/appellant in case if the death occurs in a pending matter, is to file an application under Order 22 Rule 4 of the Code, and not under Order 1 Rule 10 of the Code or under Section 151 of the Code. 14. In the matter on hand, though the trial court had rightly dismissed the application under Order 22 Rule 4 of the Code as not maintainable at an earlier point of time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleadment 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 Code, inasmuch as the application under Order 22 Rule 4 of the Code was not maintainable. As mentioned supra, it is only if a defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the Code 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 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. Normally, if the plaintiff had known about the death of one of the defendants at the time of institu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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