ABHIRAM NAIK Vs. KRUSHNA CHANDRA NAIK AND OTHERS

JUDGEMENT

(1.) The short point that falls for consideration in this revision application is whether power under Order 1, Rule 10 of the Code of Civil Procedure, 1908 (in short C.P.C) can be exercised, to implead legal representatives of a deceased party when an application under Order 22, Rule 4, C.P.C. to bring the said legal representatives on record has been dismissed.

(2.) The factual background in short is, that a suit was instituted for declaration that the defendants were encroachers in respect of Schedule 'B' lands, mandatory injunction for removal of certain construction, restoration of possession and permanent injunction. One of the defendants (defendant No. 1) dies on 3-4-1982. Plaintiff filed a petition under Order 22, Rule 4, stating that defendant No. 1 Natabar died on 3-4-1982 leaving behind here sons, two daughters and his widow; defendant No. 4 Murali was one of the sons of deceased defendant No. 1, who also died on 31-7-1986 unmarried; some of the legal representatives of late Natabar were already on record as defendant Nos. 2 and 3. Prayer was made to substitute the widow and two daughters in place of deceased Natabar and to delete the name of Murali. Application was also filed under Section 5 of the Limitation Act, 1963 to condone the delay. In all, three applications were filed for condonation of delay, setting aside abatement and substitution. The prayers contained in the petitions were rejected excepting the one to delete the name of deceased Muralidhar. It was held by order dated 2-12-1988 that the suit abated against defendant No.1. Admittedly the said order has not yet been assailed. Subsequently, two petitions were filed before the leanred Munsif. One of the petititions was filed by the defendants to declare that the entire suit had abated on account of the abatement of the suit in respect of defendant No. 1. The other petition was filed by the plaintiffs under Order 1, Rule 10 C.P.C. read with Section 151 C.P.C. to implead the window and daughters of deceased defendant No. 1. The prayer was allowed by the impugned order which is assailed in the revision application.

(3.) It is relevant to mention here that the learned Munsif relied on a decision of this Court in Civil Revision No. 665 of 1934 (Pitamber Dash v. Pradipta Kumar Sahoo and others) decided on 23.7.1987, to conclude that the prayer as made by the plaintiffs was to be allowed for effective adjudication of the dispute. On behalf of the petitioner, it has been urged that the ratio in Pitamber Dash's case has been misapplied by the learned Munsif. It was urged that in view of the decision of the Supreme Court in the case of Bhagwan Swaroop and others v. Mool Chand and others, 1983 AIR(SC) 355, the learned Munsif fell into great errors in allowing the petition. On behalf of the opposite parties, it has been, however, submitted that though on the face of it, it appears that the decision of this Court in Pitambar Dash's case supports the contention of the petitioner, yet on a closer reading of the same and the ratio in Bhagwan Swaroop's case , supports the contention of the petitioner, yet on a closer reading of the same and the ratio in Bhagwan Swaroop's case , it is apparent that in deserving cases, in the interest of justice and to avoid multiplicity of proceedings, the resort to Order 1, Rule 10, C.P.C. is permissible. On consideration of the rival submissions, I find that the facts of this case are akin to those involved in Durga Ch. Parida v. Basant Kumar Parida and others,1974 40 CutLT 885 It was held in that case as follows :