GANESHJI HIMMATRAM MEHTA Vs. SAROJADEVI RAMESHCHANDRA CHAURASIA

JUDGEMENT

(1.) THIS civil revision application arises out of an order dated 13-8-1993 passed by the learned 5th Joint Civil Judge, Senior Dn. , Nagpur, in Special Civil Suit No. 193 of 1978. By the impugned order, an application which was filed for impleading respondents 9 and 10 as the 5th and 6th defendants to the suit has been allowed. The aforesaid defendants, it must be noted, are the widow and the daughter of deceased Chandrakant Chaurasiya, who was original plaintiff No. 6 in the suit instituted before the trial Court.

(2.) INSOFAR as the facts material to the present proceedings are concerned, it would be necessary to note that the suit instituted was for specific performance of a contract for the sale of immovable property based upon the right of pre-emption conferred by an argument dated 10-8-1973. During the pendency of the suit, original plaintiff No. 6 Chandrakant died on 6-6-1981 and was survived by a widow and a daughter, who are respectively respondents No. 9 and 10. The remaining plaintiffs filed an application praying for the deletion of the name of original plaintiff No. 6. Upon which an order of deletion came to be passed. Now, it is common ground that an application for the dismissal of the suit was filed by the original defendants No. 3 and 4 at Exhibit 37 on 20-1-1982 and it was the contention of the said defendants that the entire suit must be regarded as having abated, consequent upon the death of original plaintiff No. 6 Chandrakant. On that application, the trial Court passed an order on 1-8-1983 dismissing the suit as a whole. The order of the trial Court was affirmed by this Court in F. A. No. 75 of 1984, against which a Special Leave Petition (S. L. P. (Civil) No. 6079/86) was filed before the Supreme Court. On 12-1-1987 the Supreme Court set aside the order of this Court in Civil Appeal No. 38 of 1987 and remanded the matter back to this Court for a determination afresh. The order of the Supreme Court records that the Court was informed by the learned Counsel for the parties that an application made by the plaintiffs in this Court under Order 1, Rule 10 read with Order 6, Rule 17 of the Civil Procedure Code in the first appeal had not been considered and disposed of before disposing of the appeal. The Supreme Court held that the aforesaid application ought to have been disposed of before the judgment was pronounced in the first appeal and, in those circumstances, the order passed by this Court in the first appeal was set aside and the matter was remanded for fresh consideration.

(3.) THE Division Bench of this Court thereafter heard the parties and disposed of both the application under Order 1, Rule 10 of the Civil Procedure Code as well as the First Appeal bearing No. 75 of 1984. This Court, in its judgment and order dated 1-4-1987, considered in the first instance the application under Order 1, Rule 10 for impleadment of one Omkant Kamalnarayan Chaurasia, who was sought to be impleaded both in his personal capacity as well as the guardian of the minor daughter, Ritu, of deceased original plaintiff No. 6. The application for impleadment was dismissed by this Court. The Division Bench, while doing so, observed that the provisions contained in Order 22, Rules 3 and 9 of the Civil Procedure Code constitute a comprehensive Code dealing with the abatement of a suit upon the death of a sole plaintiff or the plaintiffs if there is more than one. This Court was of the view that upon the death of original plaintiff No. 6 the suit had abated insofar as he was concerned and in the absence of an application for setting aside the abatement of the suit, the plaintiffs/appellants could not be permitted to achieve indirectly by an application under Order 1, Rule 10 read with Order 6, Rule 17 of the Civil Procedure Code what they could not do directly under Order 22 of Civil Procedure Code. This Court observed that the said provisions contained in Rules 3 and 9 of Order 22 precluded the application for bringing the legal representatives of the deceased plaintiff on record. That application, in the circumstances, was dismissed.