Anurag Srivastava vs Smt. Radhika Devi And Another
2023 Latest Caselaw 21295 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Neutral Citation No. - 2023:AHC:162027
 
Court No. - 1
 
Case :- MATTERS UNDER ARTICLE 227 No. - 4370 of 2023
 
Petitioner :- Anurag Srivastava
 
Respondent :- Smt. Radhika Devi And Another
 
Counsel for Petitioner :- Ashish Kumar Srivastava
 
Counsel for Respondent :- Rahul Mishra,Sanjay Mishra
 

 
Hon'ble Jayant Banerji,J.

1. Heard Shri Ashish Kumar Srivastava, learned counsel for the petitioner-applicant and Shri Sanjay Mishra, learned counsel for the plaintiff-respondent No.1.

As is reflected in the previous order dated 27.7.2023 passed by this Court, Shri Sanjay Mishra, learned counsel for the plaintiff-respondent No.1 had stated that he did not propose to file any counter affidavit as the material on record is sufficient. Therefore, with the consent of the parties, this case is being taken up for consideration and disposal.

2. This petition has been filed seeking the following reliefs:

"(i) Issue an appropriate order or direction to set aside the judgment and order dated 2.3.2023 passed by District Judge Varanasi in Civil Revision No. NIL of 2023 Anurag Srivastav Vs Smt. Radhika Devi and the order dated 19.1.2023 passed by Civil Judge (S.D.)/Fast Track Court Varanasi in Original Suit No.268 of 2000 Smt. Radhika Devi Vs Smt. Usha Devi, rejecting the impleadment application paper no.'99C' filed by the petitioner U/O.1 R.10 CPC.

(ii) Issue an appropriate order or direction to the court below to allow the impleadment application of the petitioner and direct plaintiff/respondent no.1 to impleadment him as defendant in the suit."

3. It appears that a suit No.268 of 2000 was filed by the plaintiff-respondent No.1 against the predecessor/mother of the petitioner-applicant and the defendant-respondent No.2 seeking a declaration that will deed dated 14.3.1990 is a void document and that the plaintiff-respondent No.1 is the owner of the property in dispute pursuant to the will deed dated 26.2.1992. It appears that on 15.4.2021 the predecessor/mother of the petitioner-applicant died without filing a written statement in the aforesaid suit. It appears that an application paper No. 82 (Ga) was filed on behalf of the plaintiff-respondent No. 1 with a prayer that, against the name of the defendant No. 1, the word 'deceased' be mentioned in view of the provision of Order 22 Rule 4(4) of the Civil Procedure Code, 1908. No objection was filed to that application and, therefore, by means of an order dated 21.2.2002, the application No. 82 (Ga) was allowed.

4. Thereafter, an application under Order 1 Rule 10 CPC read with Section 151 CPC dated 1.12.2022 was filed by the petitioner-applicant. It was mentioned in the application that the deceased was the mother of the petitioner-applicant, and the petitioner is the sole heir of the deceased. It was also mentioned in the application that on 29.11.2022, the plaintiff-respondent No. 1, alongwith some other persons, came to the house of the petitioner-applicant and started threatening that he would be evicted. Thereafter, the petitioner-applicant contacted an advocate and came to know for the first time that an unregistered will deed had been set up by the plaintiff-respondent No. 1 with regard to the property in dispute and on that basis is seeking eviction of the petitioner-applicant.

5. It was stated that the petitioner-applicant is the co-owner of the property in dispute and is in uninterrupted possession of the sale deed. It was, therefore, stated that as the owner of the property in dispute, he is a necessary party, and accordingly, an impleadment was sought. An objection was filed to the aforesaid application in which it was stated that the suit was proceeding ex-parte since 9.10.2001. It was stated that under the provisions of Order 22 Rule 4(4), under the order of the court the word 'deceased' has been recorded against the name of the defendant No.1. That the application for impleadment has been filed only to harass the plaintiff and the case is fixed for ex-parte hearing on 17.4.2022.

6. By the order impugned dated 19.1.2023, the trial court held that no written statement was filed by either of the defendants despite they having appeared in the court and, therefore, the matter is proceeding ex-parte since the year 2002 and till the death of defendant no. 1, no application was filed for recalling the ex-parte order. It was observed that the application appears to have been filed only to delay the outcome of the trial. It was also observed that because the defendant no. 1 till her lifetime had full knowledge of the proceedings and she never filed a written statement, therefore, at this stage the son of the defendant No. 1 could not be justifiably given any opportunity, as the case is extremely old and is pending since the year 2000.

7. Against the aforesaid order, a revision was filed by the petitioner-applicant in the court of the District Judge Varanasi, which revision came to be dismissed at the stage of admission. While dismissing the revision, the revisional court relied upon a judgment of the Supreme Court in which it is stated that the plaintiff is the dominus litis and, therefore, till the court itself directs the plaintiff for impleadment, the party who is not a party in the suit and whose impleadment is necessary to pass an effective decree or where under Order 1 Rule 10 CPC it is necessary for the proper disposal of the suit, and if till then the plaintiff does not agree, then in that case no person has the right to be impleaded as defendant in the suit. It was held that the civil revision is not maintainable and it was, accordingly, dismissed.

8. The contention of the learned counsel for the petitioner is that the Order dated 21.2.2022 passed on an application filed by the plaintiff-respondent No. 1 under Order 22 Rule 4(4) CPC merely grants an exemption to the plaintiff from moving an application for substitution. However, learned counsel, while relying upon the provision of Order 22 Rule 4(4) CPC, has stated that allowing that application would not take away the right of the legal representative who gets himself substituted or brought on record subsequently. In support of his contention, learned counsel has relied upon a judgment of the coordinate bench of this Court in Mohammad Mustaqeem and others vs Aftab Ahmad and others1. Learned counsel has further referred to the observation made in paragraph No. 6 of a judgment of the coordinate bench of this Court in the matter of Abdul Gaffar vs VIIIth Additional District Judge, Kanpur Nagar and others2.

9. Further, it has been contended by the learned counsel for the petitioner that, given the nature of the suit and the right of the petitioner-applicant, the application under Order 1 Rule 10 CPC ought to have been allowed by the court. It is stated that the presence of the petitioner before the court is imperative for the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. In support of his contention, learned counsel for the petitioner has relied upon the paragraph Nos. 13, 14, 16, and 17 of a judgment of the Supreme Court in the case of Kasturi vs Iyyamperumal and others3.

10. Shri Sanjay Mishra, learned counsel for the plaintiff-respondent No. 1 has strongly opposed the petition and stated that till the death of the mother/predecessor of the petitioner on 15.04.2021, she had not filed any written statement, and the case was proceeding ex-parte for nearly two decades. It is contended that at a belated stage, the applicant-petitioner is seeking impleadment, and given the order dated 21.02.2022 passed by the trial court on the application filed under Order 22, Rule 4(4) of the CPC, the trial court has justifiably rejected the application for impleadment by its order dated 19.1.2023. The learned counsel has relied upon a judgment of the Supreme Court, which judgment was also relied upon by the revisional court while passing the impugned order dated 2.3.2023, in the matter of Sudhamayee Pattnaik and Others vs Bibhu Prasad Sahoo and Others4, it is contended that the plaintiff-respondent No. 1 is the dominus litis, and given the order dated 21.2.2022 passed by the trial court on an application filed under Order 22, Rule 4(4) CPC, the petitioner is not required to be impleaded.

11. It is not disputed by the learned counsel for the respondent that under the registered will deed dated 14.3.1990, the cancellation of which is sought in the suit, the property in dispute had been bequeathed to the predecessor/mother of the petitioner-applicant and to the defendant-respondent. The petitioner, being the son of the beneficiary under the aforesaid will deed dated 14.3.1990, would contend that his presence before the court was imperative in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

12. As far as the order of the trial court dated 21.2.2022 is concerned, whereby the application filed by the plaintiff-respondent No. 1 under Order 22, Rule 4(4) of the CPC was allowed, the contents of the provision may be noted. Rule 4 of Order 22 provides for the procedure in the case of the death of one of several defendant or sole defendants. Sub-Rule 4 of this provision reads as follows:

"4. The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant not withstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place."

13. Thus, under the aforementioned provision, A discretion is granted to the court to exempt the plaintiff from substituting the legal representatives of any such defendants who has failed to file a written statement or who, having filed it failed to appear, and contest the suit at hearing, which, is otherwise unnecessary. Where such an exemption is granted by the court, the judgment may be pronounced against that defendant notwithstanding the death of such a defendant and the judgment shall have the same force and effect as if it had been pronounced before death took place. That is to say, where a judgment is so pronounced in such a case, where the plaintiff has been granted exemption from substituting the legal representatives of such defendant, the judgment would be effective against such defendant and subject to facts and circumstances of the case, on his/her heirs and legal representatives as well. In the case of Mohammad Mustaqeem, while considering a similar matter involving sub-rule (4) of Rule 4 of Order 22 CPC, this Court observed as follows.

"14. In this respect, one aspect of the matter must be further clarified. It is this that if an exemption is granted by a Court to the plaintiff from moving an application for substitution that would not take away the right of the legal representatives to get themselves substituted or brought on record subsequently. In a proper case, the court will consider such an application on merits judicially and pass appropriate orders thereon. Granting of exemption has nothing to do with the right of the legal representatives of moving an application for being brought on record. The fact that the suit would not abate on account of the deceased having filed a written statement or contested the suit earlier, should not be confused with the right of the legal representatives of moving an application to be substituted or brought on record. On their being brought on record, the suit will proceed on merits, and that will not entitle the impleaded representatives to urge that the suit had abated."

14. Therefore, the court in the case of Mohammad Mustaqeem observed that an exemption so granted would not take away the right of the legal representatives to get themselves substituted or brought on record subsequently. In the case of Kasturi, a three-judge Bench of the Supreme Court considered the question that whether a suit for specific performance of a contract for the sale of a property, instituted by a purchaser against the vendor, a stranger or a third party to the contract, claiming to have an independent title and possession over the contracted property, is entitled to be added as a party defendant in the said suit. The Supreme Court referred to the provision of Order 1 Rule 10 CPC and observed as follows:

"13. From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.

....................................20....................................The question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct interest in the controversy involved in the suit.............................."

15. The application for impleadment dated 1.12.2022 filed by the petitioner-applicant has been referred to above. By the impugned order dated 19.1.2023, the trial court has rejected the application on the grounds that no recall application has been filed after the court had directed that the matter proceed ex-parte against the defendants. Further ground for rejection of the application was that a 'substitution application' Paper No.82 (Ga), was filed by the plaintiff-respondent no.1, which was allowed on 21.2.2022. It was observed that at the stage of the suit, no opportunity is required to be given to the son of defendant No.1. The revisional court, in its impugned order of 2.3.2023, relied upon the aforesaid judgment of the Supreme Court in Sudhamayee Pattnaik and upheld the order of the trial court by rejecting the revision.

16. In my opinion, the orders impugned in this petition are not justified. It is one thing to say that exemption can be granted to the plaintiff from the necessity of substituting the legal representative of such a defendant who has failed to file a written statement. However, it is a completely different and erroneous thing to state that the legal representative of such a defendant has no right to be included in the suit particularly where the legal representative is such a person against whom a right to relief is claimed by the plaintiff-respondent no.1 and also whose presence before the court would be necessary in order to enable the court to effectually and completely to adjudicate upon and settle all the questions involved in the suit. The petitioner-applicant is such a person who deserves to be impleaded.

17. The judgment in the case of Sudhamayee Pattnaik that has been cited by the learned counsel for the plaintiff-respondent would not have any application to the facts and circumstances of the present case. In that case, the original plaintiffs had instituted civil suit against the original defendants for declaration, permanent injunction and recovery of possession. The original defendants had appeared and filed their joint written statement alongwith counter claim. After the evidence from the side of the plaintiffs was closed, the original defendant Nos. 1 to 4 filed an application under Order 1 Rule 10 CPC and prayed for impleadment of subsequent purchasers as party defendants. In that backdrop, the Supreme Court had observed that the plaintiffs are dominus litis and unless the court suo moto directs to join any other party, not a party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants, and that too against the wish of the plaintiffs.

18. In view of the aforesaid facts and circumstances of the case, the impugned orders dated 19.1.2023 and 2.3.2023 are set aside. The application Paper No. 99 (Ga) filed by the petitioner is hereby allowed and he is directed to be impleaded as the legal representative of the deceased defendant No. 1.

Order Date :- 9.8.2023

K.K.Tiwari

(Jayant Banerji, J.)