Gujarat High Court
Kailashben Wd/O Mahendrabhai ... vs Upendrabhai Becharbhai Patel on 3 October, 2023
Bench: J. C. Doshi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8506 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KAILASHBEN WD/O MAHENDRABHAI DAMODAR BRAHMBHATT
Versus
UPENDRABHAI BECHARBHAI PATEL
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Appearance:
MALAYKUMAR S PATEL(8901) for the Petitioner(s) No. 1,2,3,4,5
MR TATTVAM K PATEL(5455) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1,2,4,5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/10/2023
ORAL JUDGMENT
Though notice is served none remain present for respondent
Nos. 1,2, 4 and 5.
1. By way of this petition preferred under Article 227 of the
Constitution of India, the petitioners have prayed for the following
reliefs:-
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"(A) Your Lordship may be pleased to admit this Special
Civil Application.
(B) Your Lordships may be pleased to issue a writ of
certiorari or a writ in the nature of certiorari and/or any other
appropriate writ, order or directions quashing and setting aside
the impugned order dated 1.1.2019 passed by learned
Additional Senior Civil Judge, Vadodara in Application below
Exh. 18 (Annexure -C to the present petition) and further also
quashing and setting aside the impugned order dated 7.1.2023
passed by learned 12th Additional Senior Civil Jduge,
Vadodara in Application Below Exh. 32 (Annexure E to the
present petition) and further pleased to order or any
appropriate direction to reopen the right of the petitioner to
join as legal heirs of plaintiff No.2 in pending Civil Suit and
amend the Special Civil Suit No. 228 of 2012 in the interest of
justice;
(c) Pass any such other and/or further orders that may be
thought just and proper, in the facts and circumstances of the
present case.
2. Brief facts of the case are that Special Civil Suit No. 228 of
2012 has been filed before the learned Sr.Civil Judge, Vadodara by
the heirs and legal representative of Damodarbhai Ujjambhai
Brahmbhatt and Jibaben Damorbhai Brahmbhatt for declaration and
cancellation of sale deed dated 25.10.2001 executed by the
respondent No.4 in favour of respondent Nos. 1 and 2 claiming it to
be illegal and null & void. The sale deed dated 24.1.2011 executed
by the respondent Nos. 1 and 2 in favour of respondent No.3 also
claimed to be illegal and null & void. Pending proceedings of the
suit, one of the plaintiff - Mahendrabhai Damodarbhai Brahmbhatt
expired. The heirs and legal representative of deceased
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Mahendrabhai Damodarbhai Brahmbhatt preferred an application at
Exh. 18 under Order 22 Rule 3 of the Civil Procedure Code (for
short "CPC") for substituting them as plaintiffs in place of
deceased plaintiff-Mahendrabhai Damorbhai Brahmbhatt. Learned
Senior Civil Judge believed that the cause of action would continue
in favour of the heirs and legal representative of the deceased
Mahendrabhai, and therefore, he allowed the petition and
permitted the heirs and legal representatives of the deceased -
Mahendrabhai Damodarbhai Brahmbhatt to be substituted as
plaintiffs. While allowing the application at Exh. 18 (annexure "C"),
learned Sr.Civil Judge, Vadodara directed the plaintiff to amend the
cause title within 14 days from the date of the order. The cause title
was not amended due to inadvertence, thus, the application at Exh.
32 (Annexure "E" ) was filed by the heirs and legal representative of
the deceased Mahendrabhai Damodarbhai Brahmbhatt to permit
them to amend the cause title. Learned Sr.Civil Judge, Vadodara,
taking recourse of Order 6 Rule 17 of CPC, and Order 6 Rule 18 of
CPC believed that, since, within the time limit, the petitioners have
not carried out the amendment in the cause title , they cannot be
permitted to amend the cause title after such long time, and
therefore, learned Sr.Civil Judge, Vadodara rejected the application.
3. Being aggrieved and dissatisfied by the impugned order passed
below Exh. 32, this petition is preferred.
4. Heard Mr. Malay Patel, learned advocate for the petitioners
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and Mr.Tattvam Patel, learned advocate for respondent No.3 .
5. It is sought to be submitted by Mr.Malay Patel, learned
advocate for the petitioners that due to inadvertence the petitioners
could not amend the cause title of the plaint. He would further
submit that amending the cause title is different then amending the
pleadings He would further submit that no time limit is prescribed
for amending the cause title. He would further submit that the time
limit of 14 days prescribed under Order 6 Rule 18 of CPC operates
for amending the pleadings. It does no apply to amendment in cause
title. He would further submit that, in fact, once the Court has
believed that the cause of action of the suit remain continue in
favour of the heirs and legal representatives of the deceased -
plaintiff -Mahendrabhai and thereby allow them to continue the suit
proceedings by amending the cause title would be ministerial act,
but the learned trial Court has totally failed to notice this aspect and
as such has committed grave error in passing the impugned order
denying the petitioners to amend the cause title.
5.1. In line of the above submission, he would submit to allow this
petition and permit the petitioners to amend the cause title of the suit
to substitute them as plaintiffs in place of deceased plaintiff
Mahendrabhai.
6. On the other-hand Mr.Tattvam Patel, learned advocate
appearing for the respondent No.3 would submit that the writ of
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certiorari is not maintainable considering the facts and circumstances
of the case. He would further submit that, since the heirs and legal
representative of the deceased did not proceed to amend the cause
title within stipulated time period, the learned Sr. Civil Judge,
Vadodara has passed further order on 1.1.2019 holding that as the
heirs and legal representatives have not carried out the necessary
amendment in the cause title within stipulated time period, it
appears that they are not interested for substituting themselves as
plaintiffs. In view of the facts and circumstances, if heirs and legal
representative are aggrieved, they have to file an appeal under Order
43 Rule 1(k) of CPC to challenge the order. He would further
submit that Exh.32 being filed under Section 151 of CPC is not
maintainable. He would further submit that learned Sr.Civil Judge
has not committed any error in dismissing the application. Therefore,
he would submit to dismiss this petition.
7. Having heard learned advocates appearing for both the sides
and perusing the impugned order, the question that falls for
consideration in the writ petition preferred under Article 227 of the
Constitution of India that On the death of the plaintiff, the
application for bringing his heirs and legal representatives having
been allowed, whether it is obligatory on the part of the heirs and
legal representatives to incorporate their names in the array of the
party and to amend the cause title by substituting their names in
place of deceased plaintiff- Mahendrabhai within 14 days from the
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date of such order ?
8. Perusal of the impugned order indicates though learned trial
Court has allowed petitioners to replace them in place of deceased
plaintiff and array as plaintiff to substitute deceased plaintiff by
disallowing application at Exh. 37, did not permit to amend cause
title after 14 days on belief that, the petitioners can not amend cause
title, as time limit of 14 days given in Order 6 Rule 18 of CPC is
expired. Apt it would be that Order 6 Rule 18 of the CPC is
applicable to the pleading. The pleading is defined under Order 6
Rule 1 of CPC, pleading means plaint or written statement. Order 6
Rule 17 of CPC is permitting amendment in pleading, if order is
passed to amend pleading under Order 6 Rule 17 of CPC. Time
limit of 14 days started in Order 6 Rule 18 of CPC to carry out
amendment in pleading would be applicable. Time limit of 14 days
slated in Order 6 Rule 18 of CPC would not applied to amendment
in cause title to substitute heirs and legal representative. It is to be
noted that under Order 22 Rule 3 of CPC the order to substitute the
heirs and legal representatives of the deceased-plaintiff-
Mahendrabhai has already been passed below Exh. 18 by learned
Sr.Civil Judge, Vadodara. What remains, was to give effect to the
said order, and accordingly to substitute the names of the heirs and
legal representatives of the deceased plaintiff permitting them as
plaintiff in place of the deceased plaintiff. This is purely ministerial
work. It is not amendment in the pleadings. It might be done either
by the parties who has obtain the order or office of the Court. Such
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change in the cause title cannot be considered as amendment in the
plaint/pleading.
8.1 This Court may take assistance from the decision in the case
of Alabhai Vajsurbhai Vs. Bhura Bhava reported in AIR 1937
Bom. 401, wherein the Bombay High Court has observed as under:-
"It was no part of the appellant's duty to take the necessary
steps to carry out the Court's order for the substitution of the
names of the heirs of the deceased respondents who were
property served with notices in order to correct the record of
the Court in terms of its order. That was a ministerial function
which the Court's establishments was urged to perform. If it
was not performed or neglected, the fault would not lie with
the appellants"
9. Support can also be taken from another judgement of Bombay
High Court in the case of Smt. Rukmini Dattatraya Naik & Ors.
Vs. Mr. Parmanand Lalchand Joshi & Ors. reported in 2000(4)
ALL MR 758, the relevant para Nos. 3, 4 and 5 reads as under:-
"3. As it appears the contention of the respondents that the
petitioners were required to carry out amendment in the array of
parties by incorporation their names as legal heirs within 14 days
of the order dated 2-4-92 was based on the provision contained
under Order 6, Rule 18 C.P.C. The Appeal Court was persuaded
by the said contention correctness of which is under challenge
herein. The Appeal Court seems to have overlooked the basic fact
that amendment in the cause title is not an amendment in the
pleading. Order 6, Rule 18 C.P.C. only applies where the
amendment in the pleading has been granted under Order 6, Rule
17 C.P.C. and unless otherwise, ordered by the Court, the
amendment is required to be carried out within 14 days. The view
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that cause title of the plaint or appeal is not a pleading also gets
support from the provisions of Order 6, Rule 15 C.P.C. which
provides for verification of pleadings. As per Order 6, Rule 15
every pleading shall be verified at the foot by the party or by one of
the parties pleading or by some other person proved to the
satisfaction of the Court to be acquainted with the facts of the case.
The person verifying shall specify by reference to the numbered
paragraphs of the pleading, what he verifies of his own knowledge
and that he verifies upon information received and believed to be
true. The cause title is not required to be verified since it is not
part of pleadings. By applying analogy of Order 6, Rule 18 C.P.C.
the Appeal Court committed serious error in holding that the cause
title in the appeal was required to be amended within 14 days of
the order dated 2-4-92 whereby legal representatives of deceased
appellant were ordered to be brought on record. The learned
Counsel for respondents could not cite any rule obligating the
legal representatives of the deceased appellant to take necessary
steps in amending the cause title of appeal after the Court granted
the application for bringing the legal representatives of deceased
appellant on record. The order passed by the Appeal Court
allowing the application for bringing the legal representatives of
deceased appellant on record does not direct them to carry out the
Court's order for substitution by incorporating the names of legal
representatives. The amendment in the array of parties pursuant to
the order passed by the Court on 2-4-92 in the circumstances
could have been done by the legal representatives of deceased
appellant or by the office since it was a ministerial function. More
than six decades and three years before the Division Bench of this
Court in H.H. Darbar Alabhai Vajsurbhai and others v. Bhura
Bhaya and others A.I.R. 1937 Bombay, 401 considered the
question whether upon the death of the respondents in the appeal,
the application of appellant to bring legal representatives of
deceased respondent having been allowed, was it the duty of the
appellants to take steps to carry out the order allowing legal
representatives to be brought on record or was it required of the
Court establishment to perform that ministerial function by making
necessary corrections in the array of parties. The Division Bench
of this Court thus ---
"Turning to the merits of the appeal, it is obvious that it was not
brought to the notice of the learned District Judge when he passed
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the preliminary order of abatement on 21st October, 1932, that
with the exception of two respondents' heirs and legal
representatives, all the remaining deceased respondents' heirs and
legal representatives were ordered by the Court to be brought on
the record upon the application of the appellants. It was no part of
the appellant's duty to take the necessary steps to carry out the
Court's order for the substitution of the names of the heirs of the
deceased respondents who were properly served with notices in
order to correct the record of the Court in terms of its order. That
was a ministerial function which the Court's establishment was
charged to perform. If it was not performed or neglected, the fault
would not lie with the appellants. Extracts of the roznama have
been produced to support the appellant's contention that from time
to time within the period of limitation they had applied for the
substitution of names of the heirs of the deceased respondents. The
correctness of the statement of the appellants in that respect has
not been disputed. Perhaps if those facts had been brought to the
notice of the Lower Court at an earlier stage, it would have
restricted its remarks to the prayer in the application, Ex. 16. On
the application for amending the record subsequently made on
10th November, 1932, the Court became aware that the neglect
was due to the office establishment's failure to carry out the
Court's order. But the view of the Court was that notwithstanding
that neglect "the appellants should have taken care to see that
proper respondents were included". The first indication of the
failure of the office to amend the record was perhaps given to the
appellants and their pleader when a certified copy of the order of
the first Court was obtained in 1930. If the pleader of the parties
had attempted to compare the names of the numerous parties given
in the title with those in the original plaint and in the various
applications for amendments thereof, the omission might have
been brought to light. But the necessity for that comparison would
arise only upon the assumption that the Court's establishment had
failed to carry out its orders. That would in my opinion be an
unreasonable assumption having regard to the normal course of
business and the limited opportunities for comparison which a
lawyer possesses in such matters. It would be an obvious injustice
to the plaintiffs in the circumstances to dismiss their prayer for
amendment of the record when the principal offenders in the
matter were not the plaintiffs themselves."
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4.. K. Jagannatha Shetty, J., (as he then was) in Kariyappa and
others v. Patel Rudrappa and others, concurred with the
aforequoted view of this Court and held that once the order is
made under Order 22, Rule 3 or 4, the said order is to be given
effect to by recording the names in the cause title of the pleadings
and it might be done either by the party who obtained the order or
by the office of the Court. It was also held therein that when such
change is made or recorded, it cannot be considered as an
amendment of the plaint within the meaning and scope of Order 6,
Rule 17. In para 5 of the report, it was held thus ---
"............. It is seen therefrom that when the defendant dies and the
right to sue survives the Court, on an application made in that
behalf shall causes the legal representative of the deceased
defendant to be made a party and shall proceed with the suit.
When once the order is made under the above provision, the said
order should be given effect to by recording the necessary names
in the cause title of the pleadings. It might be done either by the
party who obtained the order or by the office of the Court. All that
is required to be done is to effect the necessary changes in the
particulars of the plaint in substituting the names of the heirs of
the deceased. When such change is made or recorded, it cannot be
considered as an amendment of the plaint within the meaning and
scope of Order VI, Rule 17. Substitution of the legal
representatives of the deceased is made to give effect to the order
made by the Court under Order XXII, Rule 3 or 4. Order VI, Rule
17 or Order VI, Rule 18 of the Civil P.C. has no application to
such situation."
5. I have already noted above that amendment in the cause
title is not the amendment in the pleading and once the Court
passes an order directing substitution of deceased party, the cause
title may be corrected by the concerned party or the establishment
of the Court unless ordered otherwise. Once the Appeal Court
allowed the application made by the legal representatives of
deceased appellant for bringing them on record, the order has to
be given effect to and there was no question of abatement of the
appeal. The application for bringing legal representatives was
already made in time which was allowed as such and merely
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because the cause title was not corrected as per the order for
bringing the legal representatives on record, by no stretch of
imagination, can it be said that appeal has abated. When the
appeal did not abate, there was no question of making any
application for setting aside the abatement. The whole approach of
the Appeal Court in the impugned order is misconceived.
10. Order 22 of Rule 3 of CPC indicates the procedure in case of
the death of several plaintiff or sole plaintiff. It further indicates that
if right to sue survive in case one of the several plaintiff or sole
plaintiff has expired, the Court, on an application made in that
behalf, shall allow the legal representative of the deceased plaintiff
to be made a party and shall proceed with the suit. The plain reading
of Order 22 Rule 3 of the CPC indicates that no time limit has been
fixed by the legislature to array the legal representative of the
deceased plaintiff to substitute, as plaintiff, once order to substitute
the legal representative of the plaintiff is passed.
11. Substitution of legal representative of the plaintiff governed
by Order 22 Rule 3 of CPC. Amendment in cause title consequent to
order passed under Order 22 Rule 3 is not amendment in pleadings,
it is amendment in the cause title to give effect of the order of
substitution of plaintiff. Hence it is not governed by Order 6 Rule
17 of CPC. Thus, Order 6 Rule 18 of CPC would not apply.
Admittedly, learned trial Court by allowing the application at Exh.
18 (Annexure "C") permitted the heirs and legal representatives of
the deceased -Mahendrabhai Brahmbhatt to replace the substitute
deceased plaintiff. The Court made them as party plaintiff and
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ordered to proceed with the suit. What had remained to be done was
to give effect of this order by amending cause title of the suit. As
held hereinabove, no time limit is prescribed to amend the cause
title. It is also duty of the office of the Court to do ministerial work
to amend the cause title besides the petitioners. Denial of the relief to
amend the cause title (at Exh. 32) is total non application of the mind
on the part of the learned trial Court. To be noted that learned Trial
Court while passing the order at Exh. 18 had made the petitioners as
party plaintiffs in the suit and then later on denying at Exh. 32 did
not permit to amend the cause title of the plaint passed complete self
contradictory orders. The Court below fell in error and it has resulted
into miscarriage of justice.
12. This Court in case of Kantaben Babulal Borad & Ors. Vs.
Gujarat State Road Transport Corporation and Anr. reported in
2005(2) GLR 1386, addressed identical issue, the fact of the
judgement is identical to the fact of the present case. The relevant
para 6 reads as under:-
"6. It is required to be noted that the present petitioners were
permitted to be brought on record under the provisions of Order 22,
Rule 3 of C.P.C. and the learned appellate Judge has granted the
application under Exh. 45. The said application, therefore, cannot
be equated with an application under Order 6, Rule 17 of the Civil
Procedure Code as there was no question of amendment of any
pleadings, and in view of the order passed below Exh. 45, the
cause- title of the appeal memo was required to be amended
showing the names of the present petitioner as heirs of the original
appellant. The learned appellate Judge, therefore, has committed a
jurisdictional error in referring to Order 6, Rule 18 of C.P.C. Once,
the petitioners are allowed to be brought on record, the cause-title
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is required to be amended by the office of the District Court. It is
pointed out that no other corresponding amendment was required
to be made in the appeal memo. Considering the aforesaid, learned
Judge has committed an error by not granting the application. As
only the name was required to be amended, it was the duty of the
Registry of the District Court to correct the title showing the name
of the present petitioners as heirs of the original deceased-
appellant. The impugned order, therefore, is unsustainable and is
required to be set aside. The impugned order is accordingly set
aside and the petition is accordingly allowed. Registry of the
District Court is directed to amend the cause title of appeal
pursuant to order passed below Exh. 45 in Regular Civil Appeal
No. 80 of 1997 within a period of two weeks from the date of
receipt of the writ of the order of this Court.
13. Thus, in nutshell it is exhibited that the trial Court has
exhibited complete error on understanding of law.
14. For the forgoing reasons, this petition succeeds. Impugned
order passed below Exh. 32 in Special Civil Suit No. 228 of 2012 by
the learned 12th Additional Sr. Civil Judge, Vadodara is set aside.
The matter is remanded back to the learned trial Court to decide
afresh application at Exh. 32 as early as possible.
(J. C. DOSHI,J)
BEENA SHAH
