BANALATA PARIDA Vs. BANSHIDHAR DAS

JUDGEMENT

(1.) Whether the legal representatives of one of the plaintiffs in a suit, can press into service Order 1, Rule 10(2) of the Code of Civil Procedure for being added as parties after rejection of their application for substitution under Order 22, Rule 3 of the Code is the small but vexed question that falls for determination in this revision.

(2.) THE suit out of which this revision arises was one for declaration of title, confirmation of possession, in the alternative recovery of possession and correction of record -of -rights. Plaintiff 1 is the son of plaintiff 2. On the death of plaintiff 2, his widow and two married daughters filed an application on 14 -11 -1985 for amendment of plaint and impletion as plaintiffs. The trial Court construed the application as one under Order 22, Rule 3 of the Code, for substitution and disallowed the same on 3 -3 -1986 as not having been made within time, sine plaintiff 2 died on 6 -6 -1984. Then the widow died. Thereafter on 23 -3 -1987 the two daughters filed another application under Order 1, Rule 0 of the Code for being impleaded in the suit. The same has been rejected by order dated 3 -7 -1967 which is impugned in this revision.

(3.) COUNSEL for the petitioners placed reliance on the decisions in Khali Ahmad v. Addl. Dist. Judge, Gorakhpur : AIR 1974 All. 422, Badri Narain Prasad Sah v. Banssdhar Prasad : AIR 1982 Patna 138 and Shyam Behari Lohar v. Ram Charan Lohar: AIR 1985 Cal. 80. In the Allahabad case the suit was one for redemption of mortgage. One of the mortgagees died during pendency of the suit. The mortgagor plaintiff applied under Order 22,Rule 4 of the Code beyond time for impleading the heirs of the deceased mortgagee defendant. The same was dismissed as time -barred. The trial Court however, impleaded the parties under Order 1, Rule 10(2) of the Code. Such order was confirmed by the Allahabad High Court with the following observation : The effect of Rules 4 and 9 of Order 22 is to abate the suit against the deceased and to take away the plaintiff's right to institute a fresh suit against his legal representatives. This, however does not mean that the suit cannot continue with the parties as they remain and are subsequently added under some other provision of law. Order 22, Rule 9, CPC affects the right of a party, but does not take away the right of the Court to bring on record any person whom the Court considers necessary for effectually adjudicating upon and settling of the questions involved in the suit. Sub -rule (7) of Rule 10 of Order 1 of the Code of Civil Procedure deals with special cases where the impleadment of a party is necessary in order to enable the Court to effectually adjudicate the questions involved in the suit. If the necessary conditions exist, the Court has the power to direct the impleadment of any person. The inaction on the part of a plaintiff to implead or bring on record a person as defendant cannot affect the right of the Court to implead him as a party in the suit in exercise of its jurisdiction under Order 1, Rule 10(2), CPC. In the Patna case it has been held : It is a settled law that if some of the heirs of the deceased are already on the record, then the question of limitation does not arise in bringing the other remaining heirs on the record. In the Calcutta decision it is held : Where, pending a suit by the plaintiff against his mother and others, the mother died and the plaintiff failed to apply under Order 22 to bring her legal representatives on record, the suit does not abate as the plaintiff himself is one of the legal representatives. An application under Order 1, Rule 10 of the Code is maintainable to add the other representatives as parties to the suit.