Skip to main content

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. 

Comments

Post a Comment

Most viewed this month

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...
7 comments
Read more

Property can be sold on power of attorney - Delhi High Court

As reported in the Hindusthan Times on 5th May:-  http://www.hindustantimes.com/India-news/NewDelhi/Property-can-be-sold-on-power-of-attorney/Article1-1054964.aspx In a judgment that will benefit lakhs of Delhi residents living in co-operative housing societies and DDA flats, the Delhi High Court has quashed a Delhi government circular banning property sale in the Capital through general power of attorney (GPA). The court found that the directions in the circular, issued by the revenue department on April 27 last year, were contrary to the Supreme Court judgment dated October 11, 2011. The HC order will increase the number of saleable properties in Delhi and could bring down the value of freehold properties. According to realty watchers, on an average, around 20% of properties are registered through GPA transfers — a common way of selling leasehold properties and those that don’t have a clear title. The judgment came on a petition filed by a company, Pace Developers and ...
5 comments
Read more

Vanishing promoters and languishing shareholders

Over Rs 60,000 crore of shareholders’ wealth is stuck in 1,450 companies suspended by the stock exchanges. More importantly, near 100 per cent pledging of promoter holding appears to be common in many of these companies. This, almost rules out any chance of the companies bouncing back. The suspension is for non-compliance of the listing norms. Vanishing Companies - Definition As per the definition stipulated by SEBI, any listed company, which raised moneythrough initial public offer and, thereafter, stopped operations, did not file returnseither with the RoC or SEBI and did not exist on the registered premises wastermed as vanishing.There are provisions under Companies Act under which companies are termedvanishing companies on satisfying certain conditions. it is provided a companywould be deemed to be a vanishing company, if it satisfies all the conditions given below : a) Failed to file returns with Registrar of Companies (ROC) for a period of two years; b) Failed to fil...
3 comments
Read more