Hakim Din vs Akbar Noor

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(J&K) 723

HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
JAVED IQBAL WANI, J.
Hakim Din – Appellant
Versus
Akbar Noor & Ors. – Respondent
CR No. 107 of 2011
Decided on : 24-05-2023

Advocates:
Advocate Appeared:
For the Appellant : Rajesh Bhushan
For the Respondent: Abhishek Wazir

Headnote:(A) Code of Civil Procedure, 1908 - Sections 115, Order-I Rule 10(2), Order-XXII Rule 4 - Application for impleadment of legal heirs of deceased defendant in a suit - The trial court dismissed the application, stating that the suit abated against deceased defendant due to non-compliance with procedural requirements. The court emphasized the necessity of timely notification of a defendant's death and the obligations of legal representatives. The adjustments in party representation are governed by Order-I Rule 10 & Order-XXII Rule 4. The plaintiff-petitioner was unaware of the defendant's death, necessitating consideration of his application for substitution. (Paras 6, 9, 10, 11)

(B) The non-compliance with the duty to inform the court about the death of a party by the counsel represents a procedural lapse not absolving the other party’s responsibility to ensure legal representatives are brought on record timely. (Paras 9, 10, 11)

Facts of the case:
The plaintiff, after the death of a defendant, sought to implead the deceased's legal heirs in a suit filed against him, which was dismissed by the trial court on grounds of abatement due to the delay in being informed of the defendant's death.

Findings of Court:
The trial court's order was set aside, allowing the plaintiff's application for substitution of the deceased defendant by his legal representatives, to proceed per the required legal processes.

Issues: Whether the application was for impleadment under Order-I Rule 10(2) or for substitution under Order-XXII Rule 4.

Ratio Decidendi: The application was correctly identified as fitting Order-XXII Rule 4, as the plaintiff was unaware of the defendant's death and had acted within the provisions outlined.

Result: Revision petition allowed; trial court's order set aside.

Table of Content
1. challenging the trial court's order. (Para 1 , 2 , 3)
2. opposition to impleadment based on time constraints. (Para 4 , 6)
3. distinctions between order-i r-10(2) and order-xxii r-4 cpc. (Para 5 , 7 , 8 , 9)
4. application for substitution based on legal principles. (Para 10)
5. resolution: petition allowed and trial court's order set aside. (Para 11)

JUDGEMENT

1. Through the medium of the instant revision petition filed under Section 115 of CPC, the petitioner has thrown challenge to order dated 14.07.2011 (for short, 'the impugned order') passed by the court of Sub-Judge Rajouri (for short, 'the trial court') in case titled as "Hakam Din vs. Mohd. Rafiq & Ors.".

2. The facts emerging from the petition would reveal that the petitioner herein filed a suit as plaintiff for declaration and possession against three defendants including defendant 1 namely Mohd. Rafiq.

3. The plaintiff/petitioner herein during the pendency of the suit filed an application for impleadment of the legal heirs of the defendant Mohd. Rafiq on the premise that the said defendant had died and since succession has opened up to the legal heirs of the deceased defendant in terms of Muslim law of inheritance and as such, they need to be impleaded as party to the suit.

4. The application filed by the plaintiff/petitioner herein came to be opposed by the defendants/respondents herein, inter alia on the grounds that the deceased defendant died on 06.12.2006 and that the plaintiff/petitioner herein was required to bring his legal heirs on record within the prescribed period of limitation and that the application being time barred as such is liable to be rejected.

5. The trial court upon considering the application (supra) filed by the plaintiff/petitioner herein, dismissed the same in terms of the impugned order holding that the suit has abated against the deceased defendant Mohd. Rafiq under Order-XXII R-4(3) CPC.

Heard learned counsel for the parties and perused the record.

6. The fundamental question that begs consideration of this Court in the instant revision petition would be as to whether the application filed by the plaintiff/petitioner herein before the trial court was an application for impleadment of a party under Order-I R-10(2) CPC or else an application under Order-XXII R-4 CPC.

7. Admittedly, the plaintiff/ petitioner herein at the time of institution of the suit had impleaded the deceased Mohd. Rafiq as defendant 1. It is also an admitted fact that the application wherein, the impugned order has been passed came to be filed by the plaintiff/petitioner herein on 19.01.2009 much after the death of the deceased on 06.12.2006. It is also not in dispute that in the application (supra) impleadment of the legal heirs of the deceased defendant in his place on account of his death came to be sought by the plaintiff/petitioner herein.

8. Before proceeding further in the matter, it would be appropriate to refer to Order-I R-10(2), Order-XXII R-4 CPC hereunder:-

"Order-I R-10(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."

A bare perusal of the aforesaid provision would show that the same provides for addition, deletion and substitution of the parties, to be done either upon or without an application of the either party on the fundamental principle as may appear to the Court to be just in order to enable it to effectually and conclusively adjudicate upon and settle all the questions involved in the suit.

It further emanat