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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 15549 OF 2017

Arising Out Of SLP (C) NO. 31212 of 2014

Pankajbhai Rameshbhai Zalavadia         ……Appellant Versus

Jethabhai Kalabhai Zalavadiya (Deceased) Through LRs & Ors             ……Respondents

J U D G M E N T Mohan M. Shantanagoudar, J.

Leave Granted. 2. This  appeal  arises  out  of  the  judgment  dated 05.03.2014 passed by the Gujarat High Court in Special Civil  Application  No.  16985  of  2011  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 (hereinafter referred to as the “Code”).

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3. The  brief  facts  leading  to  this  appeal  are  as under:

The appellant filed a suit on 24.06.2008 seeking to set aside a sale deed executed in March 1995 in respect of a parcel of land which was purchased by defendant no. 7.  As on the date of filing of the suit, defendant no. 7 was already dead.  Upon the report of the process server to this effect, the trial Court on 31.03.2009 ordered that the 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

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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.  Therefore, as per  the  judgment  produced  by  the defendant,  the  suit  against  dead person  is  nullity.  Moreover,  the plaintiff  has  not  mentioned  the provision under which he has filed the present  application.  Moreover,  the plaintiff has remedy against the heirs therefore, no injustice will cause to him.  Moreover,  there  are  other defendants on record. Under  these  circumstances,  the application cannot be allowed. Hence, I  pass  the  following  order  in  the interest of justice.

ORDER 1. The application is not allowed. 2.  No order as to cost.”

Thereafter  the  appellant  chose  to  file  an application for impleading the legal representatives of

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deceased defendant no. 7 on record, under Order 1 Rule 10  of  the  Code.  The  aforementioned  application  also came to be dismissed by the trial Court on 03.09.2011, and confirmed by the High Court by passing the impugned judgment. Hence, this appeal. 4. Learned  counsel  for  the  appellant/original plaintiff  contended  that  the  subsequent  application under Order 1 Rule 10 of Code could not be dismissed by applying the principle of res-judicata merely because the application filed earlier under Order 22 Rule 4 of the  Code  was  dismissed  on  account  of non-maintainability;  that  the  appellant  has  accepted the order passed by the trial Court on the application filed  under  Order  22  Rule  4  of  the  Code  since  the reasons assigned by the trial Court were proper and acceptable inasmuch as the legal representatives cannot be brought on record under Order 22 Rule 4 of the Code in the suit filed against defendant no. 7, who had died prior to filing of the suit;  the provisions of Order 22 Rule 4 of the Code will apply only if the sole, or

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one of the defendants, dies during the subsistence of the suit.  Since defendant no.7 had expired prior to the filing of the suit, the only course open for the appellant  was  to  implead  the  legal representatives/heirs  of  deceased  defendant  no.7  on record under Order 1 Rule 10 of the Code; hence, the earlier  order  rejecting  the  application  filed  under Order 22 Rule 4 of the Code as not maintainable will not  operate  as  res-judicata  for  entertaining  the subsequent  application  for  impleading  the  legal representatives of deceased defendant no.7, under Order 1 Rule 10 of the Code.  As the appellant did not have knowledge about the death of defendant No.7, the suit has a right to survive and the mistake committed by the appellant 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.

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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 Court are justified in rejecting the  application  for  impleading  the  legal representatives of deceased defendant no. 7 filed under

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Order  1  Rule  10  of  the  Code;  since  the  application filed by the appellant initially under Order 22 Rule 4 of the Code was dismissed and as the second application filed under Order 1 Rule 10 of the Code was for the very same purpose, the Courts below were justified in rejecting the application preferred under Order 1 Rule 10  of  the  Code.  He  further  submits  that  the application preferred under Order 1 Rule 10 of the Code to  implead  the  legal  representatives  of  deceased defendant no.7 is not maintainable, since the appellant has not questioned the earlier Order dated 09.09.2009 rejecting the application filed under Order 22 Rule 4 of the Code, and therefore the said order has attained finality and binds the appellant;  the appellant cannot be allowed to file another application for the same relief by invoking different provision of the Code. 5. 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 Code where such defendant expired prior to the

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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 Code was dismissed earlier as not maintainable. 6.  The bare reading of Order 22 Rule 4 of the Code makes it clear that Order 22 Rule 4 of the Code 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 Code.  Before proceeding further,  it is relevant to note the provisions of Order 1 Rule 10 and Sections 151 & 153 of the Code, which read thus:

“Order  1  Rule  10:  Suit  in  name  of wrong plaintiff. – 1.  Where a suit has been instituted in  the  name  of  the  wrong  person  as plaintiff  or  where  it  is  doubtful whether it has been instituted in the name of the right plaintiff, the Court

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may  at  any  stage  of  the  suit,  if satisfied  that  the  suit  has  been instituted  through  a  bona  fide mistake, and that it is necessary for the determination of the real matter in dispute 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

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the plaint shall be served on the new defendant  and,  if  the  Court  thinks fit, on the original defendant. 5.  Subject to the provisions of the India  Limitation  Act,  1877  (15  of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. Section 151: Saving of inherent powers of Court - Nothing in this Code shall be deemed to limit or otherwise affect the  inherent  power  of  the  Court  to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Section 153: General power to amend – The Court may at any time, and on such terms as to costs or otherwise as it may  think  fit,  amend  any  defect  or error in any proceeding in a suit; and all necessary amendments shall be made for  the  purpose  of  determining  the real question or issue raised by or depending on such proceeding.

7.  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

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impleaded under Order 1 Rule 10 of the Code 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, of course, subject to the law of limitation,  as  contended  under  Section  21  of  the Limitation Act.

8. Merely because the earlier application filed by the appellant  under  Order  22  Rule  4  of  the  Code  was dismissed on 09.09.2009 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 09.09.2009.  On the other hand, the earlier

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application filed under Order 22 Rule 4 of the Code was dismissed  by  the  trial  Court  as  not  maintainable, inasmuch  as  defendant  no.  7  had  died  prior  to  the filing of the suit and that Order 22 Rule 4 of the Code 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 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

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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, 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 Code 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.  

10. In  the  case  of  Vijay  Kumar  Motilal  Mirakhanwala (supra),  a  bench  by  majority  held  that  the  legal

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representatives of a party can be added under Order 1 Rule 10 of the Code, 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  Code,  did  not interfere in the matter imasmuch 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

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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.  

11. It would be relevant to note that in the Case of Bhagwan Swaroop and Ors. vs Mool Chand and Ors., 1983 (2) SCC 132, this Court observed thus:

“4. It is true that it was incumbent upon  the  appellants  to  implead  the heirs  and  legal  representatives  of deceased respondent 1 in time. It is equally true that the appellants were negligent  in  moving  the  proper application. We would not question the finding  of  the  High  Court  that appellants 2, 3 and 4 knew about the death  of  the  deceased  respondent  1. This  being  a  suit  for  partition  of joint  family  property,  parties  are closely  interrelated  and  it  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

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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 way back and as his  heirs  and  legal  representatives having  not  been  substituted,  the appeal  has  abated.  Wheels  started moving thereafter. Appellants moved an application  for  substitution.  The matter  did  not  end  there.  Heirs  of deceased  respondent  1  then  moved  an application  for  being  brought  on record.  If  the  application  had  been granted,  the  appeal  could  have  been disposed of in the presence of all the parties.  The  difficulty  High  Court experienced  in  granting  the application  disclosed  with  great respect,  a  hyper-technical  approach which if carried to end may result in miscarriage of justice. Who could have made the most serious grievance about

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the  failure  of  the  appellants  to substitute  the  heirs  and  legal representatives of deceased respondent 1?  Obviously  the  heirs  of  deceased respondent 1 were the persons vitally interested  in  the  outcome  of  the appeal. They could have contended that the appeal against them has abated and their  share  has  become  unassailable. That is not their case. They on the contrary,  want  to  be  impleaded  and substituted  as  heirs  and  legal representatives of deceased respondent 1.  They  had  absolutely  no  grievance about the delay in bringing them on record.  It  is  the  second  respondent who  is  fighting  both  the  appellants and the 1st respondent who wants to derive a technical advantage by this procedural lapse. If the trend is to encourage  fairplay  in  action  in administrative  law,  it  must  all  the more inhere in judicial approach. Such applications  have  to  be  approached with  this  view  whether  substantial justice is done between the parties or technical rules of procedure are given precedence  over  doing  substantial justice in Court. Undoubtedly, justice according  to  law;  law  to  be administered to advance justice.”  

12. This Court in the case of Karuppaswamy and Ors. vs C.  Ramamurthy,  1993  (4)  SCC  41  has  permitted  the plaintiff to modify the application filed by him under Order 22 Rule 4 of the Code to make it an application

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application for condonation of delay and restoration. This Court though observed that the application ought to have been filed under Order 22 Rule 4 of the Code inasmuch  as  the  death  had  occurred  during  the subsistence  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

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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,  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 Code as one filed under Order 1 Rule 10 of the CPC, 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 Code 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

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justice and not to decide the applications based on technicalities.   The provision under Order 1 Rule 10 CPC 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 Code 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 Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining  to  the  subject  matter  thereof.   The Parliament in its wisdom while framing this rule must be held to have thought that all material questions common to the parties to the suit and to the third parties should be tried once for all.  The Court is clothed with the power to secure the aforesaid result with  judicious  discretion  to  add  parties,  including

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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, as mentioned supra, 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

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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 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

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application filed by the plaintiff under Order 1 Rule 10  of  the  Code  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.

15. Having regard to the totality of the narration made supra, there is no bar for filing the application under Order 1 Rule 10, even when the application under Order 22 Rule 4 of the Code 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

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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.  

In view of the above, 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 Code, as well as under Section 21 of the Limitation Act, 1963, to be decided during the trial.   

 .…..…………………………………….J.                           [ARUN MISHRA]

 ………………………………………….J.  [MOHAN M. SHANTANAGOUDAR]  

NEW DELHI; October 3, 2017.