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Justice cannot be denied merely because of wrong mention of provision in the application

In Pankajbhai Rameshbhai Zalavadia Vs. Jethabhai Kalabhai Zalavadiya (deceased), the Appellant filed a suit on 24.06.2008 seeking to set aside a sale deed executed in March 1995 in respect of a parcel of land which was purchased by Defendant No. 7. As on the date of filing of the suit, Defendant No. 7 was already dead. Upon the report of the process server to this effect, the trial Court on 31.03.2009 ordered that the suit had abated as against Defendant No. 7. Initially, the Appellant filed an application Under Order 22 Rule 4 of the Code for bringing on record the legal representatives of deceased Defendant No. 7 which the trial Court rejected.

Thereafter the Appellant chose to file an application for impleading the legal representatives of deceased Defendant No. 7 on record, Under Order 1 Rule 10 of the Code. The aforementioned application also came to be dismissed by the trial Court on 03.09.2011, and confirmed by the High Court by passing the impugned judgment. Hence, this appeal.

Order 22 Rule 4 of the CPC, applies only in the case where the death of one of the several Defendants or the sole Defendant occurs during the subsistence of the suit. If one of the Defendants has expired prior to the filing of the suit, the legal representatives of such deceased Defendant cannot be brought on record in the suit under Order 22 Rule 4 of the CPC. 

In the matter on hand, the sale was made in favour of Defendant No. 7, and the validity of the sale deed was the subject matter of the suit. The purchaser of the property, i.e. Defendant No. 7, though dead at the time of filing the suit, was made one of the Defendants erroneously. The persons who are now sought to be impleaded under Order 1 Rule 10 of the CPC are the legal representatives of the deceased Defendant No. 7. Therefore, there cannot be any dispute that, the presence of the legal representatives of the deceased is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions in the suit. Their presence is necessary in the suit for the determination of the real matter in dispute. Therefore, they are needed to be brought on record, subject to the law of limitation, as contended under Section 21 of the Limitation Act. 

Merely because the earlier application filed by the Appellant under Order 22 Rule 4 of the CPC was dismissed on 09th September, 2009 as not maintainable, it will not prohibit the Plaintiff from filing another application, which is maintainable in law. There was no adjudication of the application to bring legal representatives on record on merits by virtue of the order dated 9th September, 2009. On the other hand, the earlier application filed under Order 22 Rule 4 of the CPC was dismissed by the trial Court as not maintainable, as Defendant No. 7 had died prior to the filing of the suit and that Order 22 Rule 4 of the CPC comes into the picture only when a party dies during the pendency of the suit. The only course open to the Appellant in law was to file an application for impleadment to bring on record the legal representatives of deceased Defendant No. 7 under Order 1 Rule 10 of the CPC. Hence, the order passed by the trial Court on the application filed under Order 22 Rule 4 of the CPC, dated 09th September, 2009, will not act as res-judicata. 

The Supreme Court opined that Order 1 Rule 10 of the CPC enables the Court to add any person as a party at any stage of the proceedings, if the person whose presence in Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the CPC, empowers the Court to substitute a party in the suit who is a wrong person with a right person. If the Court is satisfied that, the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the Court finds that, in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons. Order 1 Rule 10(2) of the CPC gives wide discretion to the Court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit. 

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