Case Note & Summary
The appeal arose from a property dispute among family members of Late Haji Israr Alam Siddiqui. The appellant, Mujibur Rehman, is one of the sons of the deceased. The deceased original plaintiff, Late Mr. Alam, had filed Suit No. 1011 of 2014 seeking declaratory reliefs regarding ownership of suit properties and appointment of a court receiver. After his death on 13 May 2020, his widow (Noorjahan Begum), daughter-in-law (Dr. Nazia Shad), and another son (Mohd. Shad) filed Interim Application No. 8532 of 2020 to be substituted as plaintiffs in his place, claiming through a Will dated 11 November 2019. The learned Single Judge allowed the substitution, adding the widow and daughter-in-law as plaintiffs and transposing the son (originally defendant No. 6) as a co-plaintiff. The appellant challenged this order, arguing that the substitution changed the nature of the suit from a declaratory suit to a testamentary suit, and that transposing a defendant as plaintiff was impermissible. The Division Bench dismissed the appeal, holding that substitution under Order 22 Rule 3 CPC is a matter of right for legal representatives, and the nature of the suit does not change merely because the claim is based on a Will. The court also held that transposition of a party under Order 1 Rule 10 CPC is permissible if it serves the interests of justice and does not alter the cause of action. The court noted that the validity of the Will is a separate issue to be decided in other proceedings. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Substitution of Legal Representatives - Order 22 Rule 3 CPC - Replacement of Deceased Plaintiff - The court considered whether permitting substitution of the deceased original plaintiff with persons claiming under a Will, including transposition of a defendant as plaintiff, changes the nature of the suit. Held that substitution under Order 22 Rule 3 CPC is a matter of right for legal representatives, and the nature of the suit does not change merely because the legal representatives claim through a Will or because a defendant is transposed, as the suit continues to be for declaration of title and possession. (Paras 1-30) B) Civil Procedure - Transposition of Parties - Order 1 Rule 10 CPC - Change in Nature of Suit - The court examined whether transposing a defendant as a co-plaintiff alters the cause of action. Held that transposition is permissible if the defendant has an interest in the subject matter and does not change the nature of the suit, as the suit remains the same and the court can adjust parties to effectuate justice. (Paras 10-30) C) Succession - Will - Testamentary Succession - Effect on Pending Suit - The court addressed whether substitution based on a Will transforms a declaratory suit into a testamentary suit. Held that the validity of the Will is a separate issue and does not affect the right of the alleged legal representatives to be substituted; the suit retains its original character unless the Will is probated or challenged separately. (Paras 11-30)
Issue of Consideration
Whether the replacement of the deceased original plaintiff with individuals claiming through a Will, including the transposition of a defendant as a co-plaintiff, changes the nature of the suit and is permissible under Order 22 Rule 3 and Order 1 Rule 10 of the Code of Civil Procedure, 1908.
Final Decision
The appeal is dismissed. The impugned order dated 13 March 2023 allowing substitution of the deceased original plaintiff with the respondents is upheld. No order as to costs.
Law Points
- Order 22 Rule 3 CPC
- Order 1 Rule 10 CPC
- substitution of legal representatives
- change in nature of suit
- testamentary succession
- transposition of defendant as plaintiff
