Case Note & Summary
The petitioners, original plaintiffs in a partition suit (Regular Civil Suit No.38 of 1993), sought partition and separate possession of their half share in suit properties and challenged a sale deed executed by Defendant No.1 in favor of Defendant No.3. During the pendency of Miscellaneous Civil Appeal No.41 of 2000, Defendant No.3 died on 19 January 2006. The petitioners filed an application on 21 August 2007 to bring the heirs of Defendant No.3 on record, which was rejected by the Additional District Judge on 9 April 2008 solely on the ground that no separate application for condonation of delay was filed, despite the application being filed within a month of learning of the death. The petitioners then filed an application under Order 1 Rule 10 CPC before the trial court to implead the heirs, which was also rejected on 20 December 2010. The High Court, under Article 227, held that the lower appellate court erred in dismissing the application on technical grounds, as the delay was minimal and the petitioners were unrepresented. It further held that Order 1 Rule 10 CPC could be invoked to bring on record necessary parties to avoid multiplicity of proceedings. The High Court set aside both impugned orders and directed the trial court to allow the application under Order 1 Rule 10 CPC, thereby permitting the impleadment of the heirs of Defendant No.3.
Headnote
A) Civil Procedure - Impleadment of Legal Representatives - Order 22 Rule 4 CPC - Condonation of Delay - The lower appellate court rejected the application for bringing heirs on record due to absence of a separate condonation application, despite the application being filed within reasonable time. The High Court held that the court should have considered the application on merits and not dismissed it on technical grounds, as the delay was minimal and the petitioners were unrepresented on the date of dismissal. (Paras 5-7)
B) Civil Procedure - Impleadment under Order 1 Rule 10 CPC - Alternative Remedy - The petitioners, after rejection of their application under Order 22 Rule 4, filed an application under Order 1 Rule 10 to implead the heirs, which was also rejected. The High Court held that Order 1 Rule 10 could be invoked to bring on record persons whose presence is necessary for effective adjudication, and the trial court ought to have allowed it to avoid multiplicity of proceedings. (Paras 8-10)
C) Constitutional Law - Supervisory Jurisdiction - Article 227 of the Constitution of India - The High Court exercised its supervisory jurisdiction to set aside the impugned orders and direct the trial court to allow the impleadment application under Order 1 Rule 10 CPC, emphasizing that technicalities should not defeat the cause of justice. (Paras 11-12)
Issue of Consideration
Whether the lower appellate court was justified in rejecting the application for bringing the heirs of the deceased defendant on record solely on the ground that no separate application for condonation of delay was filed, and whether the petitioners could alternatively seek impleadment under Order 1 Rule 10 CPC.
Final Decision
The High Court allowed the writ petition, set aside the order dated 9 April 2008 passed by the Additional District Judge, Islampur, and the order dated 20 December 2010 passed by the Civil Judge Senior Division, Sangli. The trial court was directed to allow the application under Order 1 Rule 10 CPC filed by the petitioners for impleading the heirs of Defendant No.3.
Law Points
- Order 22 Rule 4 CPC
- Order 1 Rule 10 CPC
- Article 227 of the Constitution of India
- Condonation of delay
- Impleadment of legal representatives
- Substantial justice
Case Details
2012 LawText (BOM) (06) 35
WRIT PETITION NO.3286 OF 2011
Mr. S.A.Rajeshirke for the Petitioners, Mr. Bhushan Walimbe for the Respondent Nos.3B, 3C, 3D, 3F, 3G, 3H and 3I
Shree Satish Vishnu Nalavade & Ors.
Ganpati Hari Nalawade (deceased) through LRS & ors.
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Nature of Litigation
Writ Petition under Article 227 of the Constitution of India challenging orders rejecting applications for bringing heirs of deceased defendant on record and for impleadment.
Remedy Sought
The petitioners sought to set aside the order dated 9 April 2008 rejecting their application under Order 22 Rule 4 CPC and the order dated 20 December 2010 rejecting their application under Order 1 Rule 10 CPC, and to allow the impleadment of the heirs of Defendant No.3.
Filing Reason
The lower appellate court rejected the application for bringing heirs on record solely because no separate condonation of delay application was filed, and the trial court rejected the subsequent impleadment application under Order 1 Rule 10 CPC.
Previous Decisions
The application under Order 22 Rule 4 was rejected on 9 April 2008 by the Additional District Judge. The application under Order 1 Rule 10 was rejected on 20 December 2010 by the trial court.
Issues
Whether the lower appellate court was justified in rejecting the application for bringing the heirs of the deceased defendant on record solely on the ground that no separate application for condonation of delay was filed.
Whether the petitioners could alternatively seek impleadment of the heirs under Order 1 Rule 10 CPC after the rejection of their application under Order 22 Rule 4 CPC.
Submissions/Arguments
The petitioners argued that the application for bringing heirs on record was filed within a reasonable time after learning of the death, and the absence of a separate condonation application was a technicality that should not defeat the cause of justice.
The respondents opposed the impleadment, contending that the application under Order 22 Rule 4 was rightly rejected due to delay and lack of condonation application, and Order 1 Rule 10 could not be used to circumvent the provisions of Order 22.
Ratio Decidendi
The court held that the rejection of an application for bringing legal representatives on record solely for want of a separate condonation application is unsustainable, especially when the delay is minimal and the party was unrepresented. Further, Order 1 Rule 10 CPC can be invoked to implead necessary parties to ensure effective adjudication and avoid multiplicity of proceedings, even after the rejection of an application under Order 22 Rule 4.
Judgment Excerpts
The said application came to be rejected by the Lower Appellate court i.e. the Learned Additional District Judge by order dated 942008 by holding that since there is no application for condonation of delay filed along with the application for bringing the heirs on record, the same could not be entertained.
In my view, the Learned Additional District Judge ought to have considered the application on its own merits and ought not to have dismissed the same on the technical ground that no separate application for condonation of delay was filed.
The provisions of Order 1 Rule 10 CPC can be invoked by the Petitioners to bring on record the heirs of the deceased Defendant No.3, as their presence is necessary for the effective adjudication of the suit.
Procedural History
The original suit (Regular Civil Suit No.38 of 1993) was filed for partition. The plaint was returned for presentation to the Senior Division court. The petitioners filed Misc Civil Appeal No.41 of 2000. During its pendency, Defendant No.3 died. The petitioners filed an application under Order 22 Rule 4 on 21 August 2007, which was rejected on 9 April 2008. They then filed an application under Order 1 Rule 10 before the trial court, which was rejected on 20 December 2010. The petitioners filed the present writ petition under Article 227 challenging both orders.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 22 Rule 4, Order 1 Rule 10
- Constitution of India: Article 227
