RUKMINI DATTATRAYA NAIK Vs. PARMANAND LALCHAND JOSHI

JUDGEMENT

(1.) THE question that calls for consideration and falls for determination in this writ petition filed under Article 227 of the Constitution of India is whether upon death of the appellant, the application for bringing his legal representatives having been allowed, it was obligatory on the part of the legal representatives to incorporate their names in the array of parties as appellants by substituting the name of deceased appellant within 14 days from such order.

(2.) THE facts in which aforesaid question arises may be noted briefly. The present respondents who are original plaintiffs filed the suit for eviction against the tenant Dattatraya Naik in the Court of Small Causes, Pune. After trial, the said suit was decreed. The defendant Dattatraya Naik preferred appeal challenging the decree passed by the trial Judge. During pendency of the appeal on 14-1-92, the sole appellant Dattaraya Naik died. The present petitioners who are his legal representatives applied for substitution and for bringing them on record as legal representatives within time on 1-4-92. The application was granted by the Appeal Court on 2-4-92. However, the cause title of the appeal was not amended as per order passed by the Appeal Court on 2-4-92 for quite some time and ultimately, an application came to be filed by the petitioners (legal representatives) on 30th June, 1993 before the Appeal Court that now they be permitted to amend the cause title by bringing them on record. The said application was contested by the respondents and the Appeal Court vide impugned order dated 14-7-92, rejected the said application. The Appeal Court observed that since the legal representatives did not carry out amendment in the appeal within 14 days of the order dated 2-4-92 when the application for bringing the legal representatives was granted, the appeal had abated and it was obligatory on the part of the legal representatives incorporating their names within 14 days of the orders.

(3.) AS it appears the contention of the respondents that the petitioners were required to carry out amendment in the array of parties by incorporation their names as legal heirs within 14 days of the order dated 2-4-92 was based on the provision contained under Order 6, Rule 18 C. P. C. The Appeal Court was persuaded by the said contention correctness of which is under challenge herein. The Appeal Court seems to have overlooked the basic fact that amendment in the cause title is not an amendment in the pleading. Order 6, Rule 18 C. P. C. only applies where the amendment in the pleading has been granted under Order 6, Rule 17 C. P. C. and unless otherwise, ordered by the Court, the amendment is required to be carried out within 14 days. The view that cause title of the plaint or appeal is not a pleading also gets support from the provisions of Order 6, Rule 15 C. P. C. which provides for verification of pleadings. As per Order 6, Rule 15 every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. The person verifying shall specify by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and that he verifies upon information received and believed to be true. The cause title is not required to be verified since it is not part of pleadings. By applying analogy of Order 6, Rule 18 C. P. C. the Appeal Court committed serious error in holding that the cause title in the appeal was required to be amended within 14 days of the order dated 2-4-92 whereby legal representatives of deceased appellant were ordered to be brought on record. The learned Counsel for respondents could not cite any rule obligating the legal representatives of the deceased appellant to take necessary steps in amending the cause title of appeal after the Court granted the application for bringing the legal representatives of deceased appellant on record. The order passed by the Appeal Court allowing the application for bringing the legal representatives of deceased appellant on record does not direct them to carry out the Courts order for substitution by incorporating the names of legal representatives. The amendment in the array of parties pursuant to the order passed by the Court on 2-4-92 in the circumstances could have been done by the legal representatives of deceased appellant or by the office since it was a ministerial function. More than six decades and three years before the Division Bench of this Court in (H. H. Darbar Alabhai Vajsurbhai and others v. Bhura Bhaya and others), A. I. R. 1937 Bombay, 401 considered the question whether upon the death of the respondents in the appeal, the application of appellant to bring legal representatives of deceased respondent having been allowed, was it the duty of the appellants to take steps to carry out the order allowing legal representatives to be brought on record or was it required of the Court establishment to perform that ministerial function by making necessary corrections in the array of parties. The Division Bench of this Court thus ---