Ganeshji S/O Himmatram Mehta And ... vs Sarojadevi W/O Rameshchandra ...
2002 Latest Caselaw 504 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. This civil revision application arises out of an order dated 13-8-1993 passed by the learned 5th Joint Civil Judge, Sr. 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 agreement 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 Ex. 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 the Order 22 precluded the application for bringing the legal representatives of the deceased plaintiff on record. That application, in the circumstances, was dismissed.

4. Having said this, the Division Bench proceeded then to consider the first appeal and by its judgment dated 1-4-1987 allowed the appeal, set aside the order of the trial Court and directed that the suit be tried and decided according to law in the light of the observations contained in its order.

5. In the course of the judgment, the Division Bench observed in paragraph 27 that in a case where there are joint promisees, some of the joint promisees can institute a suit as plaintiffs joining the remaining promisees as party plaintiffs or defendants. In arriving at this conclusion, the Division Bench adverted to several judgments of the Supreme Court rendered in the context of Section 45 of the Contract Act. The Division Bench held that even if the suit is instituted without joining as proforma-defendant, the remaining promisees, who are not willing to join as plaintiffs, the suit can be amended by joining them as proforma-defendants if their right to sue is challenged; which therefore means that the suit cannot abate only because some co-promisees are joined either as plaintiffs or defendants. Finally, in paragraph 32 of its judgment, the Division Bench adverted to the fact that in the application made for deleting deceased plaintiff No. 6, a plea was raised on behalf of the appellant-plaintiffs that the legal representatives of the aforesaid deceased plaintiff did not claim any interest in the suit property. The Division Bench further observed that some of the joint promisees could file a suit and upon an objection being raised by the defendants, the plaintiffs can amend the suit for impleading the remaining joint promisees as proforma defendants. The Division Bench noted that it is necessary that an objection ought to be raised that the suit is liable to be dismissed for non-joinder of necessary parties since that would serve as an opportunity to the surviving plaintiffs to apply for joining the remaining promisees, namely the legal representatives of deceased plaintiff No. 6, as proforma defendants without claiming any relief against them, if so advised. The first appeal was accordingly allowed and the matter was remitted back to the trial Court for consideration.

6. On 4-2-1992 an application was moved on behalf of defendants 3 and 4 for the amendment of the written statement and it is common ground between the parties that the application was allowed on 8-10-1992. In the amended written statement, defendants 3 and 4 sought to urge that in view of the fact that the suit had abated as against original plaintiff No. 6 the plaintiffs are not entitled to specific performance of the agreement between the parties. The plaintiffs having

sought the deletion of plaintiff No. 6, who was a joint promisee, it was contended that the other plaintiffs had no right to enforce the agreement. Thereafter on 2-2-1993 the original surviving plaintiffs moved an application for impleading respondents 9 and 10 as party-defendants to the suit. The application of the plaintiffs, relied upon the observations contained in para 32 of the decision of the Division Bench of this Court to the effect that in the event of an objection being raised with regard to the non joinder of necessary parties, the plaintiffs would be at liberty to move the Court for impleading the additional parties as proforma defendants. In the body of the amendment application, it has been sought to be averred that original plaintiff No. 6 had separated from his family and had relinquished his title and interest in the joint property and that he has no interest left whatsoever in the property which forms the subject matter of the transaction. Consequently, it has been averred that the legal representatives of original plaintiff No. 6 also have no interest in the suit property. However, to avoid an objection as regards non joinder of parties, defendants 5 and 6 were proposed to be impleaded as proforma defendants. The surviving plaintiffs aver that it is they alone who are entitled to enforce the agreement and defendants 5 and 6 have no right in the suit property. The application for amendment has been allowed by the impugned order dated 13-8-1993 passed by the learned 5th Joint Civil Judge. Sr. Dn., Nagpur.

7. On behalf of applicants, the learned counsel has submitted that upon the death of original plaintiff No. 6 the suit for specific performance stood abated as against him. No application was moved for setting aside that abatement. Consequently, it was sought to be urged that it was not open to the plaintiffs to seek impleadment of the heirs of original plaintiff No. 6 as proforma defendants, as this would be prohibited by Order 22. Moreover, it was sought to be urged that the application moved under Order 1, Rule 10 before the Division Bench for impleading Omkant Kamalnarayan in his own capacity and as the guardian of the minor daughter of original plaintiff No. 6, was dismissed by the Division Bench of this Court and, in view of that decision, the course of action which was sought to be adopted was impermissible.

8. In considering the submissions, it would be necessary to have regard to the provisions of Order 22 insofar as they are material to the present case. Rule 1 of Order 22 provides that the death of the plaintiff or defendant shall not cause a suit to abate if the right to sue survives. Then Sub-rule(1) of Rule 3 lays down that where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. In Sub-rule (2) of Rule 3 it is provided that where within the time limited by law no application is made under Sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned. The consequence of the abatement is laid down in Rule 9 which stipulates that if the suit abates or is dismissed under the provisions of Order 22, no fresh suit shall be brought on the same cause of action. In other words, what Rules 3 and 9 of Order 22 provide is that in the event of an application for bringing on record the legal representatives of the deceased plaintiff not being made within the time provided,

the suit shall abate insofar as the deceased plaintiff is concerned and no fresh suit can be brought on the same cause of action. The prohibition, it must be noted, is that no fresh suit can be instituted on the same cause of action.

9. In the present case, before the Division Bench of this Court, an application was sought to be moved under Order 1, Rule 10 for impleading, as already noted, Omkant Kamalnarayan Chourasiya as one of the plaintiffs both in his individual capacity and as a guardian for the minor daughter of deceased plaintiff No. 6. The suit has abated qua plaintiff No. 6. No application had been filed for setting aside the abatement. Hence, it was clearly not permissible to indirectly achieve the same result by moving an application under Order 1, Rule 10. The amendment which was proposed before the Division Bench, it must be emphasized, was for the impleadment of the said Omkant as a guardian for one of the legal representatives of the deceased plaintiff No. 6 and as a plaintiff to the suit. This was clearly impermissible and the Division Bench consequently dismissed the application. While doing so, the Division Bench further observed that where there is more than one joint promisee, it is open to some of those joint promisees to institute a suit even if one of them does not join as a plaintiff. Upon an objection being raised as regards the non joinder of parties, the plaintiffs can then move the Court for impleading the remaining joint promisee or promisees as party-defendants to the suit. In paragraph 32 of its judgment, the Division Bench gave liberty to the original plaintiffs upon an objection being raised as regards non joinder of parties, to move the Court for impleading the other joint promisees as proforma defendants. That is exactly what has been sought to be done by the original plaintiffs, who are the respondents before the Court. The original plaintiffs claim no relief against respondents No. 9 and 10, who are only sought to be added as proforma defendants in order to obviate the objection that all the joint promisees have not been impleaded as parties to the suit. The judgment of the Division Bench clearly contemplates such a course being adopted. Besides this, it must be noted that the judgment of the Division Bench was carried in appeal to Supreme Court and it has been stated before the Court by both the learned counsel that S.L.P. (C) 5662/89 against the said judgment was dismissed.

10. Even apart from the aforesaid circumstances and as a matter of first principle there is no reason why the surviving original plaintiffs to the suit in the present case are precluded from adopting the course of action as they seek to adopt. What Rule 9 of Order 22 provides is that where a suit abates, no fresh suit shall be brought on the same cause of action. The impleadment of respondents 9 and 10 as proforma defendants cannot be regarded as the institution of a fresh suit on the same cause of action. Respondents 9 and 10 claim no relief. No relief is claimed by the surviving plaintiffs against them. No fresh suit is instituted on the same cause of action. Even before this Court, the learned counsel appearing for the appellants, has categorically stated that the appellants claim no relief as against respondents 9 and 10.

11. Having regard to these facts and circumstances, I am of the view that the order passed by the learned trial Judge allowing the application for impleadment of respondents 9 and 10 does not call for any interference in the exercise of the revisional jurisdiction. The impugned order does not suffer from any error of jurisdiction or illegality so as to invoke the jurisdiction of this Court

under Section 115 of Civil Procedure Code. The Civil Revision Application is accordingly rejected. The interim order shall stand vacated.