Back
IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Smt. Jayalaxmi Janardhan Walawalkar others..... Petitioners.
Versus
Lalchand Laxmichand Kapasi others.... Respondents.
Writ Petition No. 2332 of 1984, decided on 18-8-1998.
Order XXII, Rules 3, 4 and 9 Provision to bring legal hair on record for application of 90days Failure to more application by representative of deceased within 9 days results into abetment unless set aside on reasonable cause-Specific provisions of Order XXII, Rule 3, 4 and 7 cannot be negated by indirectly making an application after lapse of time.-But the specific provisions of Order XXII cannot be negated by indirectly making an application after lapse of time either under Section 151 of CPC or under Order I, Rule 10(2), CPC for suo motu invocation of such power by the Court. The wide powers given to the Court under Order I, Rule 10(2) are not intended to override the specific provision of Order XXII, Rule 3,4 or 9, CPC. After the abatement of suit the Court has no jurisdiction to substitute the heirs by indirect method of impleadment as necessary parties under Order I, Rule 10, CPC or by invocation of inherent jurisdiction under Section 151 of CPC since nothing remains to be decided or adjudicated by the Court. In view of the aforesaid legal position which seems to be to be clear and admits of no doubt, the trial Court seriously erred and rather committed a grave error of jurisdiction in allowing the application for impleadment of legal representatives of deceased party when the suit had abated that the said abatement was not set aside.
Articles 226 and 227-Code of Civil Procedure, 1908, Section 151, Order I, Rule 10(2)-Abatement of suit-No specific orders are required, when heirs of deceased are not brought on record within given period and the suit gets abated on its own.- The trial Court held that under Rule 10(2) of Order I of Code of Civil Procedure, the Court has power at any stage of the proceedings either upon or without an application by the party to order that name of the person who ought to have been joined and whose presence before the Court is necessary to enable the Court to effectually and to completely adjudicate upon and settle all the questions involved in the suit be added and since the legal representatives of the deceased defendant No.2 were necessary for deciding the dispute effectually and completely, they may be allowed to be impleaded as parties.
The Court is not to invoke its inherent power under Section 151, CPC for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time.
If the appropriate steps are not taken for substitution and bringing the legal representatives of deceased party in time when the right to sue survives abatement of the suit takes place automatically. Abatement of a suit takes place of its own force by the passage of time and no specific order is required to be passed. In other words legal consequence of abatement takes place if a party to a suit dies and application for substitution is not made in time.
Articles 226 and 227-Code of Civil Procedure, 1908, Section 151, Order I, Rule 10(2) and Order XXII, Rules 3, 4 and 9-Invocation of inherent powers-When applicants failed to produce heirs on record or getting abatement quashed within time, there is no need for invocation of inherent powers, however, Court cannot do a thing indirectly through inherent power which is not allowed to be done directly.-What has not been done directly be seeking substitution and bringing on record the legal representatives under Order XXII, Rule 3 or 4 as the case may be or for setting aside the abatement under Order XXII, Rule 9, a party cannot be permitted to invoke the inherent jurisdiction under Section 151, CPC or the provisions of Order I, Rule 10(2), CPC indirectly. The law provides 90 days time to apply for bringing the legal representatives on record of deceased party to save the suit from abatement. If such an application is not made within time, an application has to be made for setting aside the abatement and if the party is able to show sufficient cause which prevented him from making the application in time, the courts may pass appropriate order setting aside the abetment. But the specified provisions of Order XXII cannot be negated by indirectly making an application after lapse of time either under Section 151, CPC or under Order I, Rule 10(2), CPC or suo motu invocation of such power by the Court the wide powers given to the Court under Order I, Rule 10(2) are not intended to override the specific provision of Order XXII, Rule 3 or 4 or 9, CPC. After the abatement of suit the Court has no jurisdiction to substitute the heirs by indirect method of impleadment as necessary parties under Order I, Rule 10, CPC or by invocation of inherent jurisdiction under Section 151, CPC since nothing remains to be decided or adjudicated by the Court. In view of the aforesaid legal position which seems to Court to clear and admits of no doubt, the trial Court seriously erred and rather committed a grave error of jurisdiction in allowing the application for impleadment of legal representatives of deceased part when the suit had abated and the said abatement was not set aside
2. The writ petition relates to the year 1984 and earlier also the writ petition was dismissed for default and then restored. In the circumstances, I thought it fit to consider the matter on merits and in the absence of the learned Counsel for the parties, I have perused the impugned order dated 30-3-1984 and the available material.
3. One Janardan P. Walawalkar filed ejectment suit against Krishnaji L. Prabhu (respondent No. 2 herein) in the year 1972 in the Court of Small Causes. In that proceeding decree for eviction was passed against the respondent No. 2 herein. The decree holder Janardhan P. Walawalkar levied execution in which Lalchand Laxmichand Kapasi (respondent No. 1 herein) obstructed the execution of the said decree. The obstructionist notice was made absolute in favour of decree holder. Before the decree could be executed against obstructionist the decree holder Janardhan P. Walawalkar died. The present petitioners are heirs and legal representatives of deceased decree holder. The 1st respondent obstructionist also filed a regular declaratory suit against Janardhan P. Walawalkar and the respondent No. 2 herein in the Court of Small Causes and obtained an injunction order restraining decree holder Janardhan. P. Walawalkar from executing the decree passed against respondent No. 2. After the death of Janardhan P. Walawalkar, the respondent No. 1 who filed suit for declaration against him did not take any steps to bring the legal representatives of deceased Janardhan P. Walawalkar on record and, therefore, and application was made by present petitioner No. 6 Dinesh J. Walawalkar, one of the legal representatives before the trial Court that the suit filed by respondent No. 1 herein titled as R.A.D. Suit No. 2376 of 1973 has abated. Thereupon the respondent No. 1 (plaintiff in Suit No. 2376 of 1973) made an application for impleadment of present petitioners as party defendants and consequential amendments. The learned trial Court by the impugned order dated 30-3-1964 allowed the said application which is subject matter of challenge in the present writ petition.
4. The trial Court held that under Rule 10(2) of Order 1 of Code of Civil Procedure, the Court has power at any stage of the proceedings either upon or without an application by the party to order that name of the person who ought to have been joined and whose presence before the Court is necessary to enable the Court to effectually and to completely adjudicate upon and settle all the questions involved in the suit be added and since the legal representatives of the deceased defendant No. 2 (Janardhan P. Walawalkar) were necessary for deciding the dispute effectually and completely, they may be allowed to be impleaded as parties. The trial Court, thus, allowed the application made by the respondent No. 1 herein for impleadment of the legal representatives of deceased Janardhan P. Walawalkar (defendant No. 2) in purported exercise of its power under Order 1, Rule 10(2) C.P.C.
5. In (Union of India v. Ram Charan, (deceased) through his Legal Representatives)1, A.I.R. 1964 S.C. 215 the Apex Court held thus:-
"The Court is not to invoke its inherent power under section 151, C.P.C. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time."
6. If the appropriate steps are not taken for substitution and bringing the legal representatives of deceased party in time when the right to sue survives abatement of the suit takes place automatically
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
