IMPORTANT POINT
Legal representatives of a deceased plaintiff can be brought on record under Order XXII Rule 3 of the Code of Civil Procedure even before the suit is numbered, as the suit is deemed to commence with the presentation of the plaint.

ORDER :

THE HONOURABLE MR.JUSTICE S.SOUNTHAR

Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, praying to set aside the fair and decreetal order passed by the learned Principal District Judge, Tiruvallur made in I.A. No.1 of 2019 in unnumbered O.S. SR. No.5077 of 2019 dated 26.11.2019.

The Civil Revision Petition is filed challenging the order passed by the Trial Court allowing the application filed by the respondents, seeking to record them as legal representatives of deceased sole plaintiff, along with 6th respondent, who was sought to be arrayed as 7th defendant.

2. The mother of the respondents 1,2 and 6 namely Rathnabai filed a Suit against the petitioners and respondents 3 to 5 seeking preliminary decree for partition in her 1/6th share in the suit properties and other reliefs. After presentation of the plaint, before numbering of the same, the sole plaintiff, the above said Rathnabai died. Therefore, the respondents 1 and 2 filed an I.A. No.1 of 2019 in unnumbered O.S. SR. No.5077 of 2019 seeking their impleadment as plaintiffs 2 and 3 in the place of deceased sole plaintiff Rathnabai. The said Rathnabai died leaving behind one son and two daughters. The respondents 1 and 2 are son and daughter of Rathnabai. The other daughter namely the 6th respondent herein failed to join the respondents 1 and 2 and therefore, she was sought to be added as 7th defendant in the Suit. The Trial Court allowed the said application and aggrieved by the same, the petitioners, who are defendants 3 to 5, are before this Court.

3. The learned counsel appearing for the petitioners submitted that the application for bringing the legal representatives on record under Order XXII Rule 3 of Code of Civil Procedure is maintainable only if the sole plaintiff or one of the several plaintiffs died pending Suit that too when the right to sue survives to his legal representatives. It is submitted that in the case on hand, the plaint has not been numbered and in such circumstances, there is no suit pending and as a consequence, the application filed under Order XXII Rule 3 of Code of Civil Procedure is not maintainable when there is no Suit pending. In support of his contention, the learned counsel appearing for the petitioners relied on the judgment of this Court in Olympic Cards Limited vs. Standard Chartered Bank in O.S.A. No.175 of 2012.

4. The word “Suit” is not defined under Code of Civil Procedure. However, in Hansraj Gupta and Ors. vs. Official Liquidators of The Dehra Dun-Mussoorie Electric Tramway Company Limited, reported in AIR 1933 PC 63 : MANU/PR/0062/1932, the Privy Council defined the word “Suit” as a civil proceeding commences with the presentation of the plaint.

5. Therefore, “Suit” is a civil proceeding which commences with presentation of the plaint. Order XXII Rule 1 of Code of Civil Procedure says the death of plaintiff or the defendants shall not cause the Suit to abate if the right to sue survives. Therefore, the person to whom the right to sue or right to defend survives (legal representatives) are entitled to continue the Suit by coming on record.

6. In the case on hand, the plaint was already presented and the same was returned. Therefore, the legal representatives of deceased person who presented the plaint are entitled to continue the proceedings which was commenced with the presentation of the plaint. In other words, the legal representatives of the deceased plaintiff can re-present the plaint and proceed with the matter. In order to proceed with the matter, they are entitled to file an application to bring them on record by invoking Order XXII Rule 3 of Code of Civil Procedure. Order XXII of Code of Civil Procedure is not only applicable to the proceedings of the Suit after numbering, but also applicable to the proceedings prior to the numbering of Suit which commenced with the presentation of the plaint before the Court. As per the definition of the word “Suit”, in the Hansraj Gupta case decided by th