1977 Supreme(P&H) 2

PUNJAB & HARYANA HIGH COURT
R.S.Narula, J.
Joginder Singh
Versus
Krishan Lal
Civil Revision No. 64 of 1975,
Decided On : JANUARY 11, 1977

The trial Court must decide the question of limitation before or at the time of directing the impleading of the legal representatives of the persons who were dead before the institution of the suit, and also decide the question arising under the proviso to S. 21 (1) of the Limitation Act, 1963 if the same is invoked by any party before actually impleading any such legal representative.

Headnote:

CIVIL PROCEDURE CODE - O. 1, R. 10 (2) - O. 6, R. 17 - O. 22, R. 4 - S. 153 - LIMITATION ACT, 1963 - S. 21 - SUBSTITUTION OF LEGAL REPRESENTATIVES OF DECEASED DEFENDANTS - AMENDMENT OF PLAINT - LIMITATION.

Fact of the Case:

Plaintiff filed an application for redemption of land before the Collector on December 3, 1969. The application was dismissed by the Collector on November 30, 1970. On November 30, 1971 (December 3, 1971), Plaintiff filed a suit for declaration that the order of the Collector was improper, against law, and against the provisions of the Redemption of Mortgages (Punjab) Act, 1913 and was, therefore, null and void. During the pendency of the suit, it transpired that two of the defendants had died before the application filed by the plaintiff-respondent before the Collector. Plaintiff made an application under O. 6, R. 17 of the Code of Civil Procedure to the trial Court on August 18, 1973, for substituting the names of the legal representatives of the said two defendants on the record of the suit. The trial Court allowed the plaintiff to file an amended plaint by a specified date. Aggrieved by the order of the trial Court, the defendants came to the High Court.

Finding of the Court:

1. The provisions of O. 6, R. 17 of the Code cannot be invoked for merely deleting the names of certain parties and substituting for them other names in the array of parties to a suit. 2. The question of substituting the legal representatives of only such a person under O. 212, R. 4 of the Code can arise who was alive at the time when the suit was instituted and has died during the pendency of the suit. 3. The names of the legal representatives of a person who was dead before the institution of the suit cannot be brought on record by substitution under O. 1, R. 10 (2) of the Code. 4. In order to avoid multiplicity of litigation and do substantial justice between the parties, the Court can substitute the name of an heir in place of his predecessor-in-interest (who had died before the institution of the suit) under the provisions of S. 153 of the Code. 5. The trial Court must decide the question of limitation before or at the time of directing the impleading of the legal representatives of the persons who were dead before the institution of the suit, and also decide the question arising under the proviso to S. 21 (1) of the Limitation Act, 1963 if the same is invoked by any party before actually impleading any such legal representative.

Issues: 1. Whether the provisions of O. 6, R. 17 of the Code can be invoked for merely deleting the names of certain parties and substituting for them other names in the array of parties to a suit? 2. Whether the question of substituting the legal representatives of only such a person under O. 212, R. 4 of the Code can arise who was alive at the time when the suit was instituted and has died during the pendency of the suit? 3. Whether the names of the legal representatives of a person who was dead before the institution of the suit can be brought on record by substitution under O. 1, R. 10 (2) of the Code? 4. Whether in order to avoid multiplicity of litigation and do substantial justice between the parties, the Court can substitute the name of an heir in place of his predecessor-in-interest (who had died before the institution of the suit) under the provisions of S. 153 of the Code? 5. Whether the trial Court must decide the question of limitation before or at the time of directing the impleading of the legal representatives of the persons who were dead before the institution of the suit, and also decide the question arising under the proviso to S. 21 (1) of the Limitation Act, 1963 if the same is invoked by any party before actually impleading any such legal representative?

Ratio Decidendi: 1. The provisions of O. 6, R. 17 of the Code cannot be invoked for merely deleting the names of certain parties and substituting for them other names in the array of parties to a suit. 2. The question of substituting the legal representatives of only such a person under O. 212, R. 4 of the Code can arise who was alive at the time when the suit was instituted and has died during the pendency of the suit. 3. The names of the legal representatives of a person who was dead before the institution of the suit cannot be brought on record by substitution under O. 1, R. 10 (2) of the Code. 4. In order to avoid multiplicity of litigation and do substantial justice between the parties, the Court can substitute the name of an heir in place of his predecessor-in-interest (who had died before the institution of the suit) under the provisions of S. 153 of the Code. 5. The trial Court must decide the question of limitation before or at the time of directing the impleading of the legal representatives of the persons who were dead before the institution of the suit, and also decide the question arising under the proviso to S. 21 (1) of the Limitation Act, 1963 if the same is invoked by any party before actually impleading any such legal representative.

Final Decision: The revision petition was allowed and the order of the trial Court on issue No. 2 was set aside. The trial Court was directed to decide the issue in the light of the observations made by the High Court.