Case Note & Summary
The judgment arises from a writ petition under Article 227 of the Constitution of India filed by a co-operative housing society challenging an order of the Small Causes Court at Mumbai. The underlying suit was an ejectment action initiated by two original plaintiffs as lessors against the petitioner society as lessee under a 999-year lease dated 2 February 1972. The plaintiffs sought possession of land bearing C.S.No.238 admeasuring 2737 sq.yds., Malabar Hill Division, along with the structure building, alleging breaches of lease clauses, unauthorized permanent alterations, and non-payment of arrears of rent. The petitioner society filed a written statement denying the averments and raising preliminary issues of jurisdiction and maintainability. On 3 March 2017, the Small Causes Court framed issues including jurisdiction, maintainability, and the alleged breaches. Original plaintiff No.1 died on 29 December 2017. According to the petitioner, the suit automatically abated on 29 March 2018 by operation of law under Order 22 Rule 3 of the Code of Civil Procedure, 1908 read with Article 120 of the Limitation Act, 1963, and the period for filing an application to set aside abatement under Article 121 expired on 29 May 2018. Settlement talks were initiated on 4 October 2018, the matter was referred to mediation on 30 November 2018, but mediation failed on 17 December 2018. On 4 August 2019, respondent No.1 (original plaintiff No.2) filed an application seeking deletion of the deceased plaintiff No.1 and addition of respondents No.2 and 3 as plaintiffs. The petitioner objected by affidavit-in-reply dated 14 November 2019; respondent No.1 filed a rejoinder on 19 March 2020. The trial court first passed an order on 17 March 2021 rejecting the application, holding that if the legal representatives of the deceased plaintiff desired to be plaintiffs, they should make an application signed and verified by them. However, subsequently, on 30 August 2021, the Small Causes Court allowed the application impleading respondents No.2 and 3 as plaintiffs. The petitioner challenged this order before the High Court, contending that the trial court failed to consider the abatement of the suit and the limitation period. The legal issues before the High Court centered on whether the impleadment application was barred by abatement and limitation, and whether the trial court's order allowing impleadment was within jurisdiction. The petitioner argued that the suit had already abated and could not be revived. The respondents presumably argued that the cause of action survived and that legal representatives were necessary parties. The provided text does not include the High Court's final reasoning or decision; it records the procedural history and the petitioner's contentions. The matter was reserved on 8 April 2022 and pronounced on 6 May 2022.
Headnote
A) Civil Procedure - Abatement and Legal Representatives - Order 22 Rule 3 of Code of Civil Procedure, 1908 and Articles 120, 121 of Limitation Act, 1963 - The petitioner contended that the ejectment suit automatically abated on 29 March 2018 when legal representatives of deceased original plaintiff No.1 were not brought on record within the prescribed limitation period; the petitioner argued the period for setting aside abatement expired on 29 May 2018. The High Court was called upon to assess whether the impugned order allowing impleadment of legal representatives after these dates could stand. (Paras 5-7) B) Civil Procedure - Impleadment Procedure - Order 22 Rule 2 of Code of Civil Procedure, 1908 - Trial court initially rejected the co-plaintiff's application to add legal representatives, holding that legal representatives themselves must file a signed and verified application if they desire to be plaintiffs; the subsequent order dated 30 August 2021 allowed impleadment, which the petitioner challenged under Article 227 of the Constitution. (Paras 7-8) C) Constitutional Law - Supervisory Jurisdiction - Article 227 of Constitution of India - The petitioner invoked the High Court's supervisory jurisdiction to challenge the Small Causes Court's interlocutory order allowing impleadment, raising questions of abatement and limitation; the matter involved a lease dated 2 February 1972 for 999 years and ejectment proceedings. (Paras 1-2,5)
Issue of Consideration
Whether the Small Causes Court erred in allowing application to implead legal representatives of deceased plaintiff despite alleged abatement of suit under Order 22 Rule 3 CPC read with Articles 120 and 121 of Limitation Act; whether the application by a co-plaintiff was maintainable; and the scope of Article 227 supervisory jurisdiction.
Final Decision
The provided judgment text does not include the final order of the High Court; it records that the impugned order dated 30 August 2021 allowed the application to implead Respondents No.2 and 3 as plaintiffs, and the writ petition challenging that order was reserved on 8 April 2022 and pronounced on 6 May 2022.
Law Points
- Order 22 Rule 3 CPC
- death of plaintiff abates suit if LRs not brought on record within limitation
- Article 120 Limitation Act period 90 days
- Article 121 period for setting aside abatement 60 days
- impleadment application must be signed and verified by legal representatives
- Article 227 supervisory jurisdiction
