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Andhra Pradesh High Court
Judges : S.PARVATHA RAO
Sriramula Ramachandram - Appellant
Versus
Sriramula Bhoodamma - Respondent
Decided On : 08-17-93
CIVIL PROCEDURE CODE - O. 1, R. 10 - IMPLEADING LEGAL REPRESENTATIVES - ABATEMENT OF SUIT - INHERENT POWERS OF COURT - APPLICABILITY OF S. 141 TO INTERLOCUTORY PROCEEDINGS - POWER OF COURT TO IMPLEAD LEGAL REPRESENTATIVES OF DECEASED DEFENDANT - RIGHT OF LEGAL REPRESENTATIVES TO BE IMPLEADED - INTERPRETATION OF O. 22, RR. 3 AND 4 - SCOPE OF O. 1, R. 10 - EXERCISE OF INHERENT JURISDICTION UNDER S. 151, C. P. C.
Fact of the Case:
Petitioners, legal representatives of the deceased 1st defendant in a partition suit, filed an application under O. 1, R. 10 of the Civil Procedure Code (CPC) to implead themselves as respondents in an interlocutory application for the appointment of a Commissioner. The District Munsif dismissed the application, holding that the petitioners had to take steps to restore the main suit and set aside the orders passed against the deceased defendant on the date of abatement. The petitioners filed a Civil Revision Petition challenging the order.
Finding of the Court:
The Court held that the suit did not abate as against the deceased defendant under O. 22, R. 4(3) of the CPC because an application was filed by the plaintiff to bring the petitioners on record as legal representatives, which was allowed on 3-12-1984. The Court further held that the petitioners could not have filed an application for setting aside the abatement of the suit against the deceased defendant under any of the provisions under O. 22. The Court also held that the inherent jurisdiction of the Court could not be denied to the petitioners for relief in that regard, as there was no provision in the Code enabling a defendant/respondent or the legal representatives of a deceased defendant/respondent to make an application to set aside an abatement. The Court further held that the petitioners could rely upon the inherent powers of the Court under S. 151, C. P. C., even if O. 1, R. 10 could not be invoked.
Issues: 1. Whether the suit abated as against the deceased defendant under O. 22, R. 4(3) of the CPC? 2. Whether the petitioners could have filed an application for setting aside the abatement of the suit against the deceased defendant under any of the provisions under O. 22? 3. Whether the inherent jurisdiction of the Court could be denied to the petitioners for relief in that regard? 4. Whether the petitioners could rely upon the inherent powers of the Court under S. 151, C. P. C., even if O. 1, R. 10 could not be invoked?
Ratio Decidendi: 1. The Court held that the suit did not abate as against the deceased defendant under O. 22, R. 4(3) of the CPC because an application was filed by the plaintiff to bring the petitioners on record as legal representatives, which was allowed on 3-12-1984. 2. The Court held that the petitioners could not have filed an application for setting aside the abatement of the suit against the deceased defendant under any of the provisions under O. 22, as there was no provision in the Code enabling a defendant/respondent or the legal representatives of a deceased defendant/respondent to make an application to set aside an abatement. 3. The Court held that the inherent jurisdiction of the Court could not be denied to the petitioners for relief in that regard, as there was no provision in the Code enabling a defendant/respondent or the legal representatives of a deceased defendant/respondent to make an application to set aside an abatement. 4. The Court held that the petitioners could rely upon the inherent powers of the Court under S. 151, C. P. C., even if O. 1, R. 10 could not be invoked.
Final Decision: The Civil Revision Petition was allowed, the order of the District Munsif was set aside, and the petitioners were directed to be impleaded as respondents in the interlocutory application.
( 1 ) THE petitioners question the order of the learned District Munsif at Karimanagar in I. A. No. 112 of 1989 in I. A. No. 410of 1988 in O. S. No. 684 of 1982 dated 8-8-1990 dismissing the said application made under O. 1, R. 10 of the Civil Procedure Code for impleading them as respondents 8 to 14 in the above case . It is important to note that the said I. A. No. 112 of 1989 was preferred by the petitioners themselves because the order of the learned District Munsif discloses some confusion regarding the said fact.
( 2 ) THE brief facts of the case as could be culled out from the order of the learned District Munsif are as follows:-- Respondents 1 and 2 herein laid O. S. No. 684 of 1982 for partition. The 1st defendant in the said suit one Durgaiah died. Petitioners herein are his legal representatives. The 2nd plaintiff in the suit filed I. A. No. 191 of 1984 under R. 4 of 0. 22 of the Civil Procedure Code on 24-10-1983 for bringing on record the petitioners herein as the legal representatives of the deceased 1st defendant and the said application was allowed by the learned District Munsif on 3-12-1984. According to the petitioners herein no notice was served on them before the said I. A. was ordered or even thereafter. Whatever that be, as per the order of the learned District Munsif, after the said I. A. No. 191 of 1984 was allowed on 3-12-1984, the suit was adjourned from time to time for carrying out the amendment and for filing amended copy and ultimately as no steps were taken for amendment, the suit against the 1st defendant was dismissed as abated on 1-7-1985. Subsequently the other defendants were set ex parte and a preliminary decree was passed against the defendants on 29-4-1987. Though it is not clear from the order of the learned District Munsif or the record before me what the exact prayer in I. A. No. 410 of 1988 is, the learned counsel on both sides are agreed that it is an application made by the plaintiffs in the suit i. e. , respondents 1 and 2 herein, for appointment of a Commissioner for measuring and partitioning the land in accordance with the preliminary decree. It is stated by them that a Commissioner was appointed in the said I. A. No. 410 of 1988. It is at that stage that the present LA. No. 112 of 1989 was preferred by the petitioners herein for adding them "as respondents 8 to 14 in the above case for the just and proper adjudication of the matter and to avoid the multiplicity of proceedings, by allowing this petition, in the ends of justice". In a brief order, after scantily narrating the facts, laconically the learned District Munsif dismissed the said I. A. in the following manner:"when the orders were already passed with regard to bringing of legal representatives of deceased Defendant No. 1, the present petition is not maintainable. If al all the party intends to bring the petitioners herein on record as legal representatives of the deceased Defendant No. 1 he has to take steps to restore the main suit and to take steps to set aside the orders passed against the defendant No. 1 on 1-7-1985. Under the above referred circumstances, the present petition is not maintainable and is devoid of merits and is liable to be dismissed. Accordingly, the petition is dismissed. . . . . ".
( 3 ) IN support of LA. No. 112 of 1989 the 1st petitioner herein gave his affidavit dated 27-1-1989. In that he states that the petitioners came to know about the filing of the partition suit only recently and that immediately after knowing about the same he applied for certified copy of the decree and the docket order in I. A. No. 191 of 1984, and that in the said I. A. they were made as parties to the suit but were not served with any notices to claim their rights in Survey No. 188 of Karimnagar proper by participating in the proceedings -- obviously land in the said Survey Number is one of the properties which forms the subject matter of the said suit for partition. He further states that after
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