Case Note & Summary
The petitioner, Sri Janardhana Suvarna, was Defendant No.2 in O.S.No.233/2016, a suit for partition and separate possession filed by Respondent No.1 (Smt. Rathnavathi L Rao) against the petitioner, Respondent No.2 (M/s. Vishweshwari Boat, a partnership firm) as Defendant No.1, and Respondent No.3 (Sri Praveen) as Defendant No.3. During the pendency of the suit, Defendant No.1 (the partnership firm) was dissolved, and its partners died. The petitioner filed I.A.No.10 under Order 22 Rule 4 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking to bring on record the legal representatives of the deceased partners of Defendant No.1. The Trial Court, by order dated 19.10.2020, rejected the application on the ground that the petitioner was not the plaintiff and the suit had not abated. Aggrieved, the petitioner filed a writ petition under Article 227 of the Constitution of India before the High Court of Karnataka. The High Court examined the maintainability of the application. It noted that Order 22 Rule 4 CPC applies only when a party to the suit dies and the right to sue survives, but the provision is primarily for the benefit of the plaintiff to continue the suit. The petitioner, being a co-defendant, could not invoke this provision to implead legal representatives of another defendant. The Court further observed that no abatement had occurred as the plaintiff had not taken steps to implead the legal representatives within the prescribed time. The application was premature and not maintainable. The High Court also held that the Trial Court could not have allowed the application under Section 151 CPC as inherent powers cannot be invoked when a specific provision (Order 22 Rule 4) is not applicable. Consequently, the writ petition was dismissed, and the impugned order was upheld.
Headnote
A) Civil Procedure Code - Impleadment of Legal Representatives - Order 22 Rule 4 CPC - Maintainability - The petitioner, Defendant No.2 in a partition suit, filed I.A.No.10 under Order 22 Rule 4 read with Section 151 CPC to bring on record the legal representatives of deceased Defendant No.1. The Trial Court rejected the application on the ground that the petitioner was not the plaintiff and the suit had not abated. The High Court upheld the rejection, holding that Order 22 Rule 4 CPC applies only when a party to the suit dies and the right to sue survives, but the petitioner being a co-defendant could not invoke this provision to implead legal representatives of another defendant. The application was not maintainable as the suit continued against the surviving defendants. (Paras 1-10) B) Civil Procedure Code - Abatement of Suit - Order 22 Rule 4 CPC - The Court observed that no abatement had occurred in the suit as the plaintiff had not taken steps to implead the legal representatives of deceased Defendant No.1 within the prescribed time. The petitioner's application was premature and not maintainable. (Paras 8-10) C) Civil Procedure Code - Inherent Powers - Section 151 CPC - The Court held that the Trial Court could not have allowed the application under Section 151 CPC as the specific provision of Order 22 Rule 4 CPC was not applicable. The inherent powers cannot be invoked when there is a specific provision covering the situation. (Para 10)
Issue of Consideration
Whether the Trial Court erred in rejecting I.A.No.10 filed by the petitioner under Order 22 Rule 4 read with Section 151 CPC seeking to bring on record the legal representatives of deceased Defendant No.1, when the suit was for partition and separate possession and the petitioner himself was already a party as Defendant No.2.
Final Decision
The High Court dismissed the writ petition, upholding the Trial Court's order dated 19.10.2020 rejecting I.A.No.10. The Court held that the application under Order 22 Rule 4 CPC was not maintainable as the petitioner was a co-defendant and not the plaintiff, and no abatement had occurred. The inherent powers under Section 151 CPC could not be invoked as a specific provision was not applicable.
Law Points
- Order 22 Rule 4 CPC
- Order 1 Rule 10 CPC
- Section 151 CPC
- Article 227 Constitution of India
- Impleadment of legal representatives
- Abatement of suit
- Maintainability of application
