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2000 (2) JLJ 401
Dipak Misra, J.
Agarwal (Smt.) and another v. Arya Vidya Sabha and another.
Civil Revn. No. 630 of 1999; against the order of
Ku. Trapti Kholia. IX Civil Judge Class II Jabalpur.
passed in Civil Suit No. 44-A of 1995; Decided on 21.6.2000.
The provisions enshrined under Order XXII Rule 4 are not applicable in respect of the defendant who had died before the institution of the suit. In view of this, it can irresistibly be concluded that the learned trial Judge had acted within his jurisdiction when he refused to exercise the powers under Order XXII Rule 4 of the Code. AIR 1989 HP 56, AIR 1978 Mad. 294 and AIR 1989 Raj 43 relied on. [paras 4 & 5
(2) Civil P.C., 1908 -- O. 1 R. 10 and O. 22 R. 4 -- defendant dying during pendency of suit -- application for bringing his LRs. on record rejected -- no recourse of O.1 R.10 can be taken.
If in respect of a defendant who dies during the pendency of the suit, an application under Order XXII Rule 4 is rejected, the affected/aggrieved party cannot take recourse to the Order 1 Rule 10 of the Code. AIR 1986 Ori. 191 and (1974) 40 CLT 885 relied on. [Para 6
(3) Civil P.C., 1908 -- O. 1 R. 10 (2) -- more than one defendants in suit one of them already dead prior to institution of suit -- his legal representatives can be added under.
In a suit where there are three joint defendants and one of them had died before the institution of the suit, the legal heirs of the deceased can be added under Order 1 Rule 10(2) of the Code after expunging the name of the deceased defendant. AIR 1982 Born. 589 and AIR 1986 Cat. 227 relied on. [Para 7
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ftl okn esa rhu la;qDr izfroknh gksa rFkk mueas ls ,d dh okn lafLFkr fd, tkus ls iwoZ e`R;q gks xbZ gks] e`rd izfroknh dk uke fudkyus ds i‘pkr~ lafgrk ds vkns‘k 1 fu;e 10¼2½ ds v/khu e`rd ds fof/kd okfjl tksM+s tk ldrs gSA , vkb vkj 1982 cacbZ 589 rFkk , vkb vkj 1986 dy- 227 voyafcrA ¿ iSjk 7À
1. In this civil revision preferred under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') the applicants have called in question the propriety of the order dated 20.11.98 passed by the learned IXth Civil Judge Class-II, Jabalpur in Civil Suit No. 44-A/95.
2. The facts as have been unfolded are that the non-applicant No.1, Arya Vidha Sabha, a registered society filed a suit for ejectment of the non-applicant No.2. According to the plaintiff, Shri G.S. Agrawal was the original tenant and the non-applicant No.2. was the sub-tenant. During the pendency of the suit it came to be known to the plaintiff that G.S. Agrawal had died and, accordingly, the plaintiff filed an application under Order 22 Rule 4 of the Code for substitution of his legal heirs. It was objected to by the defendant No.2 as well as by the legal representatives of said G.S. Agrawal on the ground that said G.S. Agrawal had expired on 15.8.92 long before filing of the suit and as the suit had been filed against a dead person the entire proceeding is null and void and the concept of Order 22 Rule 4 is not applicable. The learned trial Judge accepted the contention of the present applicants and rejected the application for substitution. The non-applicant No. 1, thereafter, filed an application for review of the order which met with similar fate. Thereafter, the non-applicant No. 1 filed an application under Order 1 Rule 10(2) of the Code and prayed that the legal heirs of G.S. Agrawal be, added as parties to the suit as they are necessary parties. The said application was objected to by the defendant No.2. It was put forth before the trial Court that once the application to bring the legal representatives of deceased G.S. Agrawal had already been rejected it cannot be allowed under Order 1 Rule 10 of the Code. 'The learned trial Judge did not accept the contentions that the tiling of suit was ab initio void and the legal representatives could not be brought on record under Order 1 Rule 10 of the Code as the application under Order XXII Rule 4 of the Code was rejected earlier. Being of this view he directed the legal representatives of G.S. Agrawal to be brought on record. Feeling aggrieved by the said order the legal representatives have approached this Court in this civil revision.
3. I have heard Mr. .J.P. Agrawal, learned counsel for the petitioners, and Mr. Manoj Sanghi, learned counsel for the non-applicants.
4. 'The moot question that arises for consideration is whether the Court had jurisdiction in the facts of the case to entertain an application under Order 1 Rule 10(2) of the Code after rejecting the prayer under Order XXII Rule 4 of the Code. To appreciate the factual scenario it is apposite to refer to Order XXII Rule 4 of the Code. It reads as under: -
"Procedure in case of death of one of several defendants or 'of sale defendant. (1) where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.
(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to tile a written statement or who, having filed, has railed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced b
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