JAMMU AND KASHMIR HIGH COURT
Javed Iqbal Wani, J.
Hakim Din – Appellant
versus
Akbar Noor and Ors. – Respondents
CR No. 107/2011, CM No. 6573/2020, CM No. 3426/2022, IA No. 1/2016, CM No. 9348/2021, IA No. 82/2013, CM No. 2101/2023
Decided on 24.5.2023

IMPORTANT POINT
Impleadment of legal heir – On death of defendant till his legal heirs are brought on record, suit/appeal remains in state of suspense and if court proceeds with matter that carries no legal effect – It was incumbent and obligatory upon counsel for deceased defendant 1 to communicate death of said defendant to trial court under in terms of provisions of Order-XXII R-10-A CPC.

Headnote:

(A) Code of Civil Procedure, 1908 – Order 1 Rule 10 (2) – Impleadment of party – Only two classes of persons can be added as parties to suit namely necessary party i.e. a person who ought to have joined as party and in whose absence no decree or order can be passed or proper party i.e. person whose presence is necessary for complete and effectual adjudication of questions involved in suit – Sine qua non for exercise of power by court is that proceedings must be alive and pending before court and power, being discretionary in nature has to be exercised reasonably and on sound judicial principles and before making any such order, court has also to bear in mind well established principles, such as, that plaintiff is dominus litis who has right to choose his opponent, as also that order of addition, deletion, substitution or transposition should not change nature of suit or cause of action or else interfere with rights accrued in favour of individual. [Para 8]

(B) Code of Civil Procedure, 1908 – Order XXII Rule 4 (3) –Abatement– Bringing on record legal heirs of deceased defendant - Right to suit must have survived – Such right must not have survived against sole surviving defendant or defendants alone – For maintaining application under Order-XXII R-4 for bringing on record legal heirs of deceased defendant, code has not prescribed any particular format – Only requirement is that application must be in writing and should be in language of Court supported by affidavit, though non filing of affidavit is curable irregularity – Application must contain names of legal representatives of deceased defendant and upon entertaining such application, Court must issue notice to proposed legal heirs/representatives of defendant for affording them opportunity of hearing and thereafter make appropriate order either grant application or refuse same – If such application is filed wherein suit has abated, same can also be treated as application for setting aside of abatement, in that, procedural provisions of Order-XXII CPC have been held to be procedural in nature and to be construed liberally to advance substantial justice – On death of defendant till his legal heirs are brought on record, suit/appeal remains in state of suspense and if court proceeds with matter that carries no legal effect. [Para 8]

(C) Code of Civil Procedure, 1908 – Order 1 Rule 10 (2), Order XXII Rules 4(3),10A – Impleadment of legal heirs – Ambit and scope of Order-1 R-10 (2) and Order-XXII R-4 CPC is totally different, while Order-1 R-10 (2) enables Court to add, substitute or strike down person impleaded as party to suit, Order-XXII R-4 on other hand requires plaintiff to bring legal heirs/representatives of deceased defendant on record – Where case is covered by Order-XXII R-4, provisions of Order-1 R-10 (2) stand excluded on well known principle “general words do not derogate special provisions” – It was incumbent and obligatory upon counsel for deceased defendant 1 to communicate death of said defendant to trial court under in terms of provisions of Order-XXII R-10-A CPC – Said provision is salutary in nature not being empty formality – When factum of death of defendant is reported and is recorded in order by Court, it is duty of other party to take steps for bringing on record legal heirs of defendant/s and need for diligence would commence from date of such knowledge. [Para 9]

(D) Code of Civil Procedure, 1908 – Order-1 Rule 10 (2), Order XXII Rules 4 (3),10A – Possession suit – Impleadment of legal heirs of defendant – Plaintiff/petitioner sought impleadment of legal heirs of deceased defendant 1 as party in suit on account of death of said defendant – Application filed by plaintiff/petitioner cannot by any sense of imagination, said to be application under Order-1 R-10 (2) CPC but application made under Order-XXII R-4 CPC – Since fact of death of deceased/defendant 1 had never been reported by counsel for defendant to trial court and consequently, trial court has also not recorded any such fact in record of proceedings, same leads to conclusion that plaintiff/petitioner was never aware about death of deceased defendant 1 or else of particular date, on which said defendant 1 died – Application filed by plaintiff/petitioner before trial court has not been considered by trial court having regard to aforesaid facts and circumstances in as much as, position and principles of law enshrined in Order-1 R-10 (2), Order-XXII R-4 & Order-XXII R-10-A of CPC – Order abating suit is not legally sustainable – Application filed by plaintiff/petitioner for substitution of deceased defendant by his legal representatives allowed. [Paras 10, 11]

Result: Revision petition disposed of.