IMPORTANT POINTS
If the party sought to be substituted by legal representatives dies prior to filing of suit, it cannot be done under Order XXII rule 4, CPC.
Legal representative of a party, if necessary party, should be permitted to be brought on record under Order I rule 10, CPC even if the original party died prior to filing of the suit.
Dismissal of application under Order XXII rue 4 as not maintainable will not operate as res judicata for an application under Order I rule 10.

JUDGMENT :

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”).

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 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 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 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 r