No suit against dead person – his legal heirs be brought by impleading petition when or.22, rule 4 C.P.C. was dismissed on technical point – As mentioned supra, it is only if a defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the Code can be invoked. Since one of the defendants i.e. defendant No.7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased defendant No.7 under Order 1 Rule 10 of the Code, for the simple reason that the plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties, subject of course to the law of limitation. Normally, if the plaintiff had known about the death of one of the defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that the High Court experienced in granting the application filed by the plaintiff under Order 1 Rule 10 of the Code discloses, with great respect, a hyper-technical approach which may result in the miscarriage of justice. As the heirs of the deceased defendant no.7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the Courts are meant to do substantial justice between the parties and that technical rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice. Having regard to the totality of the narration made supra, there is no bar for filing the application under Order 1 Rule 10, even when the application under Order 22 Rule 4 of the Code was dismissed as not maintainable under the facts of the case. The legal heirs of the deceased person in such a matter can be added in the array of parties under Order 1 Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial. In view of the above, the impugned judgment of the High Court is set aside. The appeal is allowed. The Trial Court is directed to implead the legal representatives of deceased defendant no. 7 and bring them on record, subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code, as well as under Section 21 of the Limitation Act, 1963, to be decided during the trial.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 15549 OF 2017
Arising Out Of SLP (C) NO. 31212 of 2014
Pankajbhai Rameshbhai Zalavadia ……Appellant
Versus
Jethabhai Kalabhai Zalavadiya (Deceased)
Through LRs & Ors ……Respondents
J U D G M E N T
Mohan M. Shantanagoudar, J.
Leave Granted.
2. This appeal arises out of the judgment dated
05.03.2014 passed by the Gujarat High Court in Special
Civil Application No. 16985 of 2011 dismissing the
Special Civil Application filed by the appellant,
consequently affirming the order passed by the trial
Court rejecting the application filed under Order 1
Rule 10 of the Code of Civil Procedure (hereinafter
referred to as the “Code”).
2
3. The brief facts leading to this appeal are as
under:
The appellant filed a suit on 24.06.2008 seeking to
set aside a sale deed executed in March 1995 in respect
of a parcel of land which was purchased by defendant
no. 7. As on the date of filing of the suit, defendant
no. 7 was already dead. Upon the report of the process
server to this effect, the trial Court on 31.03.2009
ordered that the suit had abated as against defendant
no. 7. Initially, the appellant filed an application
under Order 22 Rule 4 of the Code for bringing on
record the legal representatives of deceased defendant
no. 7. The trial Court while rejecting the said
application on 09.09.2009 observed thus:
“According to the ratio laid down in
the above said cases Order 22 Rule 4
of Code will apply only when the party
dies during the pendency of the
proceeding. Further held that a suit
against dead person is admittedly a
nullity and therefore, Order XXII Rule
4 cannot be invoked. Further held
that the provisions of Order XXII Rule
4 of Code and Order 1 Rule 10 of Code
are different and independent.
Therefore, according to heirs of
3
deceased defendant, the heirs cannot
be joined as party because the suit is
filed against dead person.
Now in this case, the endorsement for
the bailiff for the death of defendant
No. 7 made on 31.01.2009 and the
present application is filed on
20.05.2009. The application is filed
for setting aside abatement and to
join the heirs in this suit.
Moreover, there is no case of the
plaintiff that he has no knowledge
about the death of defendant No. 7 or
he has made inquiry. Therefore, as
per the judgment produced by the
defendant, the suit against dead
person is nullity. Moreover, the
plaintiff has not mentioned the
provision under which he has filed the
present application. Moreover, the
plaintiff has remedy against the heirs
therefore, no injustice will cause to
him. Moreover, there are other
defendants on record.
Under these circumstances, the
application cannot be allowed. Hence,
I pass the following order in the
interest of justice.
ORDER
1. The application is not allowed.
2. No order as to cost.”
Thereafter the appellant chose to file an
application for impleading the legal representatives of
4
deceased defendant no. 7 on record, under Order 1 Rule
10 of the Code. The aforementioned application also
came to be dismissed by the trial Court on 03.09.2011,
and confirmed by the High Court by passing the impugned
judgment. Hence, this appeal.
4. Learned counsel for the appellant/original
plaintiff contended that the subsequent application
under Order 1 Rule 10 of Code could not be dismissed by
applying the principle of res-judicata merely because
the application filed earlier under Order 22 Rule 4 of
the Code was dismissed on account of
non-maintainability; that the appellant has accepted
the order passed by the trial Court on the application
filed under Order 22 Rule 4 of the Code since the
reasons assigned by the trial Court were proper and
acceptable inasmuch as the legal representatives cannot
be brought on record under Order 22 Rule 4 of the Code
in the suit filed against defendant no. 7, who had died
prior to filing of the suit; the provisions of Order
22 Rule 4 of the Code will apply only if the sole, or
5
one of the defendants, dies during the subsistence of
the suit. Since defendant no.7 had expired prior to
the filing of the suit, the only course open for the
appellant was to implead the legal
representatives/heirs of deceased defendant no.7 on
record under Order 1 Rule 10 of the Code; hence, the
earlier order rejecting the application filed under
Order 22 Rule 4 of the Code as not maintainable will
not operate as res-judicata for entertaining the
subsequent application for impleading the legal
representatives of deceased defendant no.7, under Order
1 Rule 10 of the Code. As the appellant did not have
knowledge about the death of defendant No.7, the suit
has a right to survive and the mistake committed by the
appellant in not arraying the legal representatives of
deceased defendant no. 7 at the time of filing of the
suit is a bona fide mistake and not a deliberate one.
Since such mistake has occurred in good faith, the
right to continue the suit against the legal
representatives of deceased defendant no.7 remains.
6
The trial has not yet begun and hence the issue of
delay, if any, in bringing the legal representatives on
record, will not prejudice the legal representatives of
defendant No.7. Since the proposed parties are
necessary parties to the suit and their impleadment
cannot prejudice anybody, the interests of justice
require bringing of the legal representatives of
deceased defendant no. 7 on record.
Per contra, learned counsel appearing on behalf of
the respondents relying upon the catena of judgments
reported in Ram Prasad Dagduram vs Vijay Kumar Motilal
Mirakhanwala & Ors., AIR 1967 SC 278, Madhukar
Ramachandra Keni vs Vasant Jagannath Patil & Ors., 2013
(4) Mh. L. J. 403, Jayalaxmi Janardhan Walawalkar &
Ors. vs Lilachand Laxmichand Kapasi & Ors., 1998 (3)
Mh. L. J. 618, Arora Enterprises Ltd. vs Indubhushan
Obhan 1997 (5) SCC 366 contended that the trial Court
as well as the High Court are justified in rejecting
the application for impleading the legal
representatives of deceased defendant no. 7 filed under
7
Order 1 Rule 10 of the Code; since the application
filed by the appellant initially under Order 22 Rule 4
of the Code was dismissed and as the second application
filed under Order 1 Rule 10 of the Code was for the
very same purpose, the Courts below were justified in
rejecting the application preferred under Order 1 Rule
10 of the Code. He further submits that the
application preferred under Order 1 Rule 10 of the Code
to implead the legal representatives of deceased
defendant no.7 is not maintainable, since the appellant
has not questioned the earlier Order dated 09.09.2009
rejecting the application filed under Order 22 Rule 4
of the Code, and therefore the said order has attained
finality and binds the appellant; the appellant cannot
be allowed to file another application for the same
relief by invoking different provision of the Code.
5. The only question which is to be decided in this
appeal is, whether the legal representatives of one of
the defendants can be impleaded under Order 1 Rule 10
of the Code where such defendant expired prior to the
8
filing of the suit, particularly when the application
filed by the plaintiff to bring the legal
representatives of the deceased on record under Order
22 Rule 4 of the Code was dismissed earlier as not
maintainable.
6. The bare reading of Order 22 Rule 4 of the Code
makes it clear that Order 22 Rule 4 of the Code applies
only in the case where the death of one of the several
defendants or the sole defendant occurs during the
subsistence of the suit. If one of the defendants has
expired prior to the filing of the suit, the legal
representatives of such deceased defendant cannot be
brought on record in the suit under Order 22 Rule 4 of
the Code. Before proceeding further, it is relevant
to note the provisions of Order 1 Rule 10 and Sections
151 & 153 of the Code, which read thus:
“Order 1 Rule 10: Suit in name of
wrong plaintiff. –
1. Where a suit has been instituted
in the name of the wrong person as
plaintiff or where it is doubtful
whether it has been instituted in the
name of the right plaintiff, the Court
9
may at any stage of the suit, if
satisfied that the suit has been
instituted through a bona fide
mistake, and that it is necessary for
the determination of the real matter
in dispute so to do, order any other
person to be substituted or added as
plaintiff upon such terms as the Court
things just.
2. Court may strike out or add
parties.- The Court may at any stage
of the proceedings, either upon or
without the application of either
party, and on such terms as may appear
to the Court to be just, order that
the name of any party improperly
joined, whether as plaintiff or
defendant, be struck out, and that the
name of any person who ought to have
been joined, whether as plaintiff or
defendant, or whose presence before
the Court may be necessary in order to
enable the court effectually and
completely to adjudicate upon and
settle all the questions involved in
the suit, be added.
3. No person shall be added as a
plaintiff suing without a next friend
or as the next friend of a plaintiff
under any disability without his
consent.
4. Where defendant added, plaint to
be amended.- where a defendant is
added, the plaint shall, unless the
Court otherwise directs, be amended in
such manner as may be necessary, and
amended copies of the summons and of
10
the plaint shall be served on the new
defendant and, if the Court thinks
fit, on the original defendant.
5. Subject to the provisions of the
India Limitation Act, 1877 (15 of
1877), section 22, the proceedings as
against any person added as defendant
shall be deemed to have begun only on
the service of the summons.
Section 151: Saving of inherent powers
of Court – Nothing in this Code shall
be deemed to limit or otherwise affect
the inherent power of the Court to
make such orders as may be necessary
for the ends of justice or to prevent
abuse of the process of the Court.
Section 153: General power to amend –
The Court may at any time, and on such
terms as to costs or otherwise as it
may think fit, amend any defect or
error in any proceeding in a suit; and
all necessary amendments shall be made
for the purpose of determining the
real question or issue raised by or
depending on such proceeding.
7. In the matter on hand, the sale was made in favour
of defendant no. 7, and the validity of the sale deed
was the subject matter of the suit. The purchaser of
the property, i.e. defendant no.7, though dead at the
time of filing the suit, was made one of the defendants
erroneously. The persons who are now sought to be
11
impleaded under Order 1 Rule 10 of the Code are the
legal representatives of the deceased defendant no. 7.
Therefore, there cannot be any dispute that the
presence of the legal representatives of the deceased
is necessary in order to enable the Court to
effectively and completely adjudicate upon and settle
all the questions in the suit. Their presence is
necessary in the suit for the determination of the real
matter in dispute. Therefore, they are needed to be
brought on record, of course, subject to the law of
limitation, as contended under Section 21 of the
Limitation Act.
8. Merely because the earlier application filed by the
appellant under Order 22 Rule 4 of the Code was
dismissed on 09.09.2009 as not maintainable, it will
not prohibit the plaintiff from filing another
application, which is maintainable in law. There was
no adjudication of the application to bring legal
representatives on record on merits by virtue of the
order dated 09.09.2009. On the other hand, the earlier
12
application filed under Order 22 Rule 4 of the Code was
dismissed by the trial Court as not maintainable,
inasmuch as defendant no. 7 had died prior to the
filing of the suit and that Order 22 Rule 4 of the Code
comes into the picture only when a party dies during
the pendency of the suit. The only course open to the
appellant in law was to file an application for
impleadment to bring on record the legal
representatives of deceased defendant no. 7 under Order
1 Rule 10 of the Code. Hence, the order passed by the
trial Court on the application filed under Order 22
Rule 4 of the Code, dated 09.09.2009, will not act as
res-judicata.
9. Order 1 Rule 10 of the Code enables the Court to
add any person as a party at any stage of the
proceedings, if the person whose presence in Court is
necessary in order to enable the Court to effectively
and completely adjudicate upon and settle all the
questions involved in the suit. Avoidance of
multiplicity of proceedings is also one of the objects
13
of the said provision. Order 1 Rule 10 of the Code
empowers the Court to substitute a party in the suit
who is a wrong person with a right person. If the
Court is satisfied that the suit has been instituted
through a bona fide mistake, and also that it is
necessary for the determination of the real matter in
controversy to substitute a party in the suit, it may
direct it to be done. When the Court finds that in the
absence of the persons sought to be impleaded as a
party to the suit, the controversy raised in the suit
cannot be effectively and completely settled, the Court
would do justice by impleading such persons. Order 1
Rule 10(2) of the Code gives wide discretion to the
Court to deal with such a situation which may result in
prejudicing the interests of the affected party if not
impleaded in the suit, and where the impleadment of the
said party is necessary and vital for the decision of
the suit.
10. In the case of Vijay Kumar Motilal Mirakhanwala
(supra), a bench by majority held that the legal
14
representatives of a party can be added under Order 1
Rule 10 of the Code, but the date on which they were
impleaded shall be the date on which the suit was
instituted by or against them. In the said matter,
this Court on facts held that the suit was barred by
limitation as per Section 22 of the Limitation Act of
1908. This Court, though it concluded that the Court
has got the power to join a particular person as a
party under Order 1 Rule 10 of the Code, did not
interfere in the matter imasmuch as this Court found
that the suit was barred by limitation. It is relevant
to note that the said suit was of the year 1958. Since
the Limitation Act, 1963 (now in force) was at that
time not in existence, this Court applied the old
limitation law and held that the suit was barred by
limitation. As of now, the proviso to Section 21(1) of
the Limitation Act 1963 empowers the Court to direct
that the suit shall be deemed to have been instituted
on an earlier date, where the omission to include a new
plaintiff or defendant was due to a mistake made in
15
good faith. Therefore, it is open to the plaintiff in
the matter on hand to prove “good faith” on his part in
not including the legal representatives of deceased
defendant no. 7, during the course of trial of suit.
11. It would be relevant to note that in the Case of
Bhagwan Swaroop and Ors. vs Mool Chand and Ors., 1983
(2) SCC 132, this Court observed thus:
“4. It is true that it was incumbent
upon the appellants to implead the
heirs and legal representatives of
deceased respondent 1 in time. It is
equally true that the appellants were
negligent in moving the proper
application. We would not question the
finding of the High Court that
appellants 2, 3 and 4 knew about the
death of the deceased respondent 1.
This being a suit for partition of
joint family property, parties are
closely interrelated and it is
reasonable to believe that at least
some of the appellants must have
attended the funeral of deceased
respondent 1, as contended on behalf
of the contesting respondent 2. There
is some force in the contention that
when a specific provision is made as
provided in Order 22, R. 4, a resort
to the general provision like Order 1,
Rule 10 may not be appropriate. But
the laws of procedure are devised for
advancing justice and not impeding the
16
same. In Sangram Singh v. Election
Tribunal, Kotah (AIR 1955 SC 425), this
Court observed that a code of
procedure is designed to facilitate
justice and further its ends; not a
penal enactment for punishment and
penalties; not a thing designed to
trip people up. This was reaffirmed in
Kalipar Das v. Bimal Krishna Sen(1983)
1 SCC 14.
5. In a suit for partition, the
position of plaintiffs and defendants
can be interchange-‘ able. It is that
each adopts the same position with the
other parties. Other features which
must be noticed are that the appeal
was filed somewhere in 1972. It has
not come up for hearing and the matter
came on Board only upon the
application of the second respondent
intimating to the Court that the 1st
respondent had died way back and as
his heirs and legal representatives
having not been substituted, the
appeal has abated. Wheels started
moving thereafter. Appellants moved an
application for substitution. The
matter did not end there. Heirs of
deceased respondent 1 then moved an
application for being brought on
record. If the application had been
granted, the appeal could have been
disposed of in the presence of all the
parties. The difficulty High Court
experienced in granting the
application disclosed with great
respect, a hyper-technical approach
which if carried to end may result in
miscarriage of justice. Who could have
made the most serious grievance about
17
the failure of the appellants to
substitute the heirs and legal
representatives of deceased respondent
1? Obviously the heirs of deceased
respondent 1 were the persons vitally
interested in the outcome of the
appeal. They could have contended that
the appeal against them has abated and
their share has become unassailable.
That is not their case. They on the
contrary, want to be impleaded and
substituted as heirs and legal
representatives of deceased respondent
1. They had absolutely no grievance
about the delay in bringing them on
record. It is the second respondent
who is fighting both the appellants
and the 1st respondent who wants to
derive a technical advantage by this
procedural lapse. If the trend is to
encourage fairplay in action in
administrative law, it must all the
more inhere in judicial approach. Such
applications have to be approached
with this view whether substantial
justice is done between the parties or
technical rules of procedure are given
precedence over doing substantial
justice in Court. Undoubtedly, justice
according to law; law to be
administered to advance justice.”
12. This Court in the case of Karuppaswamy and Ors. vs
C. Ramamurthy, 1993 (4) SCC 41 has permitted the
plaintiff to modify the application filed by him under
Order 22 Rule 4 of the Code to make it an application
18
under the provisions of Sections 151 and 153 of the
Code. In the said matter also the suit was filed
against a dead person. This Court proceeded further to
conclude that the plaintiff has shown good faith as
contemplated under Section 21(1) of Limitation Act and
hence the impleadment of the legal
representatives/heirs must date back to the date of the
presentation of the plaint. In the said matter, it was
observed thus:
“4. A comparative reading of the
proviso to Sub-section (1) shows that
its addition has made all the
difference. It is also clear that the
proviso has appeared to permit
correction of errors which have been
committed due to a mistake made in
good faith but only when the court
permits correction of such mistake. In
that event its effect is not to begin
from the date on which the application
for the purpose was made, or from the
date of permission but from the date
of the suit, deeming it to have been
correctly instituted on an earlier
date than the date of making the
application. The proviso to
Sub-section (1) of Section 21 of the
Act is obviously in line with the
spirit and thought of some other
provisions in Part III of the Act such
as Section 14 providing exclusion of
19
time of proceeding bona fide in court
without jurisdiction, when computing
the period of limitation for any suit,
and Section 17(1) providing a
different period of Limitation
starting when discovering a fraud or
mistake instead of the commission of
fraud or mistake. While invoking the
beneficent proviso to Sub-section (1)
of Section 21 of the Act an averment
that a mistake was made in good faith
by impleading a dead defendant in the
suit should be made and the court must
on proof be satisfied that the motion
to include the right defendant by
substitution or addition was just and
proper, the mistake having occurred in
good faith. The court’s satisfaction
alone breaths life in the suit.
5. It is noteworthy that the trial
court did not attribute any neglect or
contumacy to the conduct of the
plaintiff-respondent. It was rather
observed that the plaintiff could have
known the date of the death of the
first defendant only by the counter
filed to IA 265 of 1975. Normally, if
he had known about the date of death
of the defendant, he would have filed
the suit in the first instance against
his heirs and legal representatives.
The trial court has also opined that
the plaintiff was ignorant as to such
death and that is why he filed IA 265
of 1975 under Order 22 Rule 4 of
C.P.C. The High Court too has recorded
a finding that there was nothing to
show that the plaintiff was aware of
the death of the first defendant and
yet knowing well about it, he would
20
persist in filing the suit against a
dead person. In conclusion, the
learned Single Judge held that since
plaintiff respondent had taken prompt
action it clearly showed that he had
acted in good faith. Thus the High
Court made out a case for invoking the
proviso to Sub-section (1) of Section
21 of the Act in favour of the
plaintiff-respondent. Sequally, the
High Court found no difficulty in
allowing IA 785 of 1975 permitting
change of the provision whereunder IA
265 of 1975 was filed and in allowing
IA 265 of 1975 ordering the suit
against the heirs and legal
representatives of defendant 1 to be
dating back to 14.11.74, the date on
which the plaint was originally
presented.”
(underlining is
ours)
13. In the Case of Banwari Lal vs Balbir Singh, 2016
(1) SCC 607, defendant no. 1, (who was respondent no. 1
in the first appeal) had expired 2 years prior to the
decision in the first appeal, but no steps were taken
to bring his legal representatives on record. The
first appellate Court decided in favour of the
plaintiff. When the matter came up in second appeal,
the legal representatives of defendant no. 1 filed an
21
application for condonation of delay and restoration.
This Court though observed that the application ought
to have been filed under Order 22 Rule 4 of the Code
inasmuch as the death had occurred during the
subsistence of the matter before the Court and the
application under Order 1 Rule 10 of the Code was not
maintainable, had proceeded to allow the application on
the ground that it would be unjust to non-suit the
applicant on the ground of technicalities. This Court
permitted the legal representatives of defendant No. 1
to convert the application into one filed under Order
22 Rule 4 of the Code.
In the cases relied upon by the respondents, viz.,
Jayalaxmi Janardhan Walawalkar (supra) and in the case
of Madhukar Ramachandra Keni (supra), the death had
occurred during the pendency of the matter and
consequently the suit stood abated. The case of Arora
Enterprises (supra) is also not applicable as it deals
with the finality of an abatement order. In that
context, the Courts have concluded that the only course
22
open to the plaintiff/appellant in case if the death
occurs in a pending matter, is to file an application
under Order 22 Rule 4 of the Code, and not under Order
1 Rule 10 of the Code or under Section 151 of the Code.
14. In the matter on hand, though the trial court had
rightly dismissed the application under Order 22 Rule 4
of the Code as not maintainable at an earlier point of
time, in our considered opinion, it needs to be
mentioned that the trial Court at that point of time
itself could have treated the said application filed
under Order 22 Rule 4 of the Code as one filed under
Order 1 Rule 10 of the CPC, in order to do justice
between the parties. Merely because of the nonmentioning
of the correct provision as Order 1 Rule 10
of the Code at the initial stage by the advocate for
the plaintiff, the parties should not be made to
suffer. It is by now well settled that a mere wrong
mention of the provision in the application would not
prohibit a party to the litigation from getting
justice. Ultimately, the Courts are meant to do
23
justice and not to decide the applications based on
technicalities. The provision under Order 1 Rule 10
CPC speaks about judicial discretion of the Court to
strike out or add parties at any stage of the suit. It
can strike out any party who is improperly joined, it
can add any one as a plaintiff or defendant if it finds
that such person is a necessary or proper party. The
Court under Order 1 Rule 10(2) of the Code will of
course act according to reason and fair play and not
according to whims and caprice. The expression “to
settle all questions involved” used in Order 1 Rule 10
(2) of the Code is susceptive to a liberal and wide
interpretation, so as to adjudicate all the questions
pertaining to the subject matter thereof. The
Parliament in its wisdom while framing this rule must
be held to have thought that all material questions
common to the parties to the suit and to the third
parties should be tried once for all. The Court is
clothed with the power to secure the aforesaid result
with judicious discretion to add parties, including
24
third parties. There cannot be any dispute that the
party impleaded must have a direct interest in the
subject matter of litigation. In a suit seeking
cancellation of sale deed, as mentioned supra, a person
who has purchased the property and whose rights are
likely to be affected pursuant to the judgment in the
suit is a necessary party, and he has to be added. If
such purchaser has expired, his legal representatives
are necessary parties. In the matter on hand, since the
purchaser of the suit property, i.e., defendant no.7
has expired prior to the filing of the suit, his legal
representatives ought to have been arrayed as parties
in the suit while presenting the plaint. As such
impleadment was not made at the time of filing of the
plaint in view of the fact that the plaintiff did not
know about the death of the purchaser, he cannot be
non-suited merely because of his ignorance of the said
fact. To do justice between the parties and as the
legal representatives of the purchaser of the suit
property are necessary parties, they have to be
25
impleaded under Order 1 Rule 10 of the Code, inasmuch
as the application under Order 22 Rule 4 of the Code
was not maintainable.
As mentioned supra, it is only if a defendant
dies during the pendency of the suit that the
provisions of Order 22 Rule 4 of the Code can be
invoked. Since one of the defendants i.e. defendant
No.7 has expired prior to the filing of the suit, there
is no legal impediment in impleading the legal
representatives of the deceased defendant No.7 under
Order 1 Rule 10 of the Code, for the simple reason that
the plaintiff in any case could have instituted a fresh
suit against these legal representatives on the date he
moved an application for making them parties, subject
of course to the law of limitation. Normally, if the
plaintiff had known about the death of one of the
defendants at the time of institution of the suit, he
would have filed a suit in the first instance against
his heirs or legal representatives. The difficulty
that the High Court experienced in granting the
26
application filed by the plaintiff under Order 1 Rule
10 of the Code discloses, with great respect, a
hyper-technical approach which may result in the
miscarriage of justice. As the heirs of the deceased
defendant no.7 were the persons with vital interest in
the outcome of the suit, such applications have to be
approached keeping in mind that the Courts are meant to
do substantial justice between the parties and that
technical rules or procedures should not be given
precedence over doing substantial justice. Undoubtedly,
justice according to the law does not merely mean
technical justice but means that law is to be
administered to advance justice.
15. Having regard to the totality of the narration made
supra, there is no bar for filing the application under
Order 1 Rule 10, even when the application under Order
22 Rule 4 of the Code was dismissed as not maintainable
under the facts of the case. The legal heirs of the
deceased person in such a matter can be added in the
array of parties under Order 1 Rule 10 of the Code read
27
with Section 151 of the Code subject to the plea of
limitation as contemplated under Order 7 Rule 6 of the
Code and Section 21 of the Limitation Act, to be
decided during the course of trial.
In view of the above, the impugned judgment of the
High Court is set aside. The appeal is allowed. The
Trial Court is directed to implead the legal
representatives of deceased defendant no. 7 and bring
them on record, subject to the plea of limitation as
contemplated under Order 7 Rule 6 of the Code, as well
as under Section 21 of the Limitation Act, 1963, to be
decided during the trial.
.…..…………………………………….J.
[ARUN MISHRA]
………………………………………….J.
[MOHAN M. SHANTANAGOUDAR]
NEW DELHI;
October 3, 2017.