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Shyam Behari Lohar Vs. Ram Charan Lohar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Appeal No. 3279 of 1979
Judge
Reported inAIR1985Cal80
ActsCode of Civil Procedure (CPC) - Order 1 and 22, Rule 10
AppellantShyam Behari Lohar
RespondentRam Charan Lohar and ors.
Advocates:P.B. Sahu and ;Prabhat Kr. Samanta, Advs.
DispositionApplication allowed
Cases ReferredRazia Begum v. Anwar Begum
Excerpt:
- .....and she died on september 8, 1977. admittedly, no application for substitution of the heirs and legal representatives of the deceased defendant no. 3 was made by the plaintiff within the period of limitation but an application under order 1 rule 10 of the civil p c was made by the plaintiff-petitioner on april 17, 1978 for bringing the heirs and legal representatives of the deceased defendant no. 3 on record by the impugned order, the learned judge has held that as the plaintiff failed to make any application for substitution of heirs and legal representatives within the prescribed period of limitatioa the suit had abated against the said defendant no. 3 and, as the suit was a suit for partition and one of the co-sharers had been left out because of failure to substitute the heirs and.....
Judgment:

G.N. Ray, J.

1. This rule is directed against Order No. 68 dt. May 23, 1979, passed by the learned. Subordinate Judge, 1st Court, Midnapore, in Title Suit No. 46 of 1971. It appears that the said Title Suit was instituted by the plaintiff petitioner for declaration of title and partition against a number of defendants including the defendant No. 3. The said defendant No. 3 was the mother of the plaintiff and she died on September 8, 1977. Admittedly, no application for substitution of the heirs and legal representatives of the deceased defendant No. 3 was made by the plaintiff within the period of limitation but an application under Order 1 Rule 10 of the Civil P C was made by the plaintiff-petitioner on April 17, 1978 for bringing the heirs and legal representatives of the deceased defendant No. 3 on record By the impugned order, the learned Judge has held that as the plaintiff failed to make any application for substitution of heirs and legal representatives within the prescribed period of limitatioa the suit had abated against the said defendant No. 3 and, as the suit was a suit for partition and one of the co-sharers had been left out because of failure to substitute the heirs and legal representatives of the said deceased defendant No. 3, the suit as a whole had also abated.

2. Mr. Sahu, learned Counsel for the plaintiff petitioner, has submitted that there was no occasion for abatement of the suit against the defendant No. 3 because the plaintiff being one of the heirs and legal representatives of the said deceased defendant No. 3, is already on record But, as it is necessary to bring the other heirs on record for effective adjudication of the said partition suit the application under Order 1 Rule 10 of the Code was made. Mr. Sahu has submitted that in the facts of the case, the said application under Order 1 Rule 10 of the Code for bringing the other heirs and legal representatives of the deceased defendant No. 3 on record was quite legal and valid and the learned Subordinate Judge misconceived the facts of the case and the import of the provision of Order 1 Rule 10 and erroneously dismissed the said application holding inter alia that the suit had abated as a whole. Mr. Sahu has referred to a decision of the Supreme Court in this connection, made in the case of Mahabir Prasad v. Jage Ram reported in : [1971]3SCR301 . It has been held in the said decision by the Supreme Court, that when a party respondent in an appeal dies and one of his legal representatives is already on record in another capacity, the appeal does not abate even if no application is made to bring them on record What is necessary in such a case is that such legal representative of the deceased already on record should make an application stating that he is an heir and legal representative of the deceased and is also on record Referring to this decision, Mr. Sahu has submitted that the petitioner has specifically stated that he is one of the legal heirs of the deceased defendant No. 3. The Court, in the aforesaid facts, should have allowed the said application under Order 1 Rule 10 and brought all other heirs of the deceased defendant No. 3 on record for effective adjudication of the suit In this connection, Mr. Sahu has also referred to a decision of the Allahabad High Court made in the case of Khalil Ahmad v. Addl. District Judge, Gorakhpur, : AIR1974All422 . A Division Bench of the Allahabad High Court has held in the said decision that Order 1 Rule 10 of the Civil P.C. gives power to the Court to implead any persons as a party when such impleadment is necessary to enable the Court to effectually adjudicate upon the questions involved in the suit. The inaction of the plaintiff to implead or bring on record a person as defendant cannot affect the Court's power under this Rule. He has, therefore, submitted that under Order 1 Rule 10, the Court had jurisdiction to add the other heirs and legal representatives of the deceased defendant No. 3 even if no heir of the said deceased defendant was on record. It may, however, be noted in this connection that the power to add a party for effective adjudication of the dispute in a suit, is a discretion of the Court and it has been held by the Supreme Court in the case of Razia Begum v. Anwar Begum reported in : [1959]1SCR1111 , that the question of addition of parties under Rule 10 of Order 1 of the Civil P C, is generally not one of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. Accordingly, it cannot be contended by the petitioner that the Court on its own motion was bound to add the other heirs and legal representatives of the deceased defendant No. 3 if the parties had not made any application for addition of such heirs as parties defendants in the suit. It, however, appears to us that the Court has not considered the import of Order 1 Rule 10 of the Code in its proper perspective and has proceeded on the footing that for not bringing the heirs and legal representatives of the deceased defendant No. 3, the suit had abated against the said defendant No. 3 and consequently, the suit as a whole had abated. As there was no question of abatement of the suit, the learned Judge has acted illegally and also with material irregularity in proceeding on the footing that the suit has abated.

3. In the circumstances, the said order is set aside. It also appears to us that, although the plaintiff is already on record as one of the heirs of the said deceased defendant No. 3, the other heirs are also necessary parties for effective adjudication of the partition suit. In the circumsatnces, the said application under Order 1 Rule 10 of the Code for bringing of such heirs on record should be allowed and we allow the said application under Order 1 Rule 10 of the Code made by the plaintiff. Let the suit be disposed of as expeditiously as possible.

4. The Rule is accordingly disposed of without any order as to costs.

Prabir Kumar Majumdar, J.

I agree.


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