K M KRISHNAPPA Vs. YESHODAMMA

JUDGEMENT

(1.) The revision petitioner was plaintiff in Original Suit No. 557 of 1980 on the file of the civil Judge, Bangalore city. That was a suit filed by him for specific performance of an agreement to sell in his favour and alternatively for refund of the amount. During the pendency of the suit the first defendant died and plaintiff filed an application under Order 22, Rule 4, CPC for bringing on record the legal representatives of the first defendant. That application was allowed on 25-3-1988. The case appears to have been posted to 6-4-1988 and from that date to 7-4-1988. The learned civil Judge held that the plaintiff had failed to implead the legal representatives ordered to be brought on record as per orders on LA. No. 21 passed on 21-3-1988 and the effect of not carrying out the amendment in the plaint must be taken as the failure on the part of the plaintiff to bring the legal representatives of deceased defendant-1 on record and therefore the suit as against the 1st defendant must be taken as having abated and it was further held that the suit against the 2nd defendant alone could not be prosecuted in the absence of the legal representatives of the 1st defendant and therefore he held by the impugned order that the entire suit had abated. It is the legality and correctness of this order of the learned city civil Judge that have been questioned by the plaintiff in the course of the revision petition.

(2.) It was contended on behalf of the revision petitioner that the substitution of the legal representatives of the deceased first defendant as per orders passed on I.A. No. 21 ought to be made by the court and in fact the order sheet indicates that they have been so brought on record and on the ground that plaintiff had not made suitable amendments in the plaint there was no scope for the court to hold that the suit against the first defendant had abated.

(3.) A division Bench of the Bombay High Court in H.H. Darbar Alabhai Vajsurbhai and Others v Bhura Bhaya and Others, AIR 1937 Bombay 401, has taken the view that taking of necessary steps to carry out the court's order for the substitution of the names of the heirs of the deceased respondents in the records of the court in terms of its order was a ministerial function which the court's establishment is charged to perform and it was no part of the appellant's duty to take necessary steps in that regard. It has also been pointed out that if it is not performed or neglected, the fault will not lie with the appellants. Following this decision this court in Kariyappa v Patel Rudrappa, 1975(2) Kar. L.J. 278, has held that when once the order is made under Order 22, Rule 4, CPC the same should be given effect to by recording necessary names in the cause title of the pleadings and it might be done either by the party who obtained the order or by the office of the court. This is obvious from the language of Order 22, Rule 4(1), CPC which reads as hereunder: