Case Note & Summary
The petitioners, Swapnesh Bhupati Mudliyar and another, were the original defendants in a suit filed by Smt. Tarabai @ Taramati Harishchandra Todankar. After the plaintiff's death, the respondent, Subhashchandra Dhondu Narvekar, filed Chamber Summons No. 1577 of 2018 seeking leave to come on record as her legal representative. The trial court allowed the Chamber Summons on 3rd September 2018 without serving a copy of the summons on the petitioners or affording them any opportunity of hearing. The petitioners challenged this order by way of a writ petition. The respondent argued that since the application was made within the prescribed period of limitation under Order 22 Rule 3 of the Code of Civil Procedure, 1908, there was no requirement to serve the opposite party or hear them. The respondent also contended that the petitioners, being defendants, had no right to question the will based on which the respondent claimed to be the legal representative. The High Court examined Order 22 Rule 3 CPC and noted that it does not dispense with the requirement of notice to the opposite party. The court held that principles of natural justice demand that before any order is passed on an application for substitution, the opposite party must be served with a copy of the application and given an opportunity to be heard. The court rejected the respondent's argument that limitation period determines the need for notice, stating that the requirement of notice is independent of limitation. The court also observed that the petitioners, as defendants, may have a legitimate interest in challenging the claim of legal representation, especially if the will is disputed. Consequently, the High Court set aside the impugned order and restored the Chamber Summons for fresh hearing after notice to the petitioners. The writ petition was allowed, and rule was made absolute with no order as to costs.
Headnote
A) Civil Procedure - Substitution of Legal Representative - Order 22 Rule 3 CPC - Natural Justice - The trial court allowed the respondent's Chamber Summons to come on record as legal representative of the deceased plaintiff without serving notice or hearing the petitioners (original defendants). The High Court held that even if the application is within limitation, the opposite party must be served and heard before any order is passed, as principles of natural justice require such opportunity. The impugned order was set aside and the Chamber Summons was restored for fresh hearing after notice to the petitioners. (Paras 5-8)
Issue of Consideration
Whether an application for bringing legal representatives on record under Order 22 Rule 3 CPC can be allowed without serving a copy of the application or affording an opportunity of hearing to the opposite party, even if the application is made within the period of limitation.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 3rd September 2018, and restored Chamber Summons No. 1577 of 2018 to the file of the trial court for fresh hearing after notice to the petitioners. Rule made absolute with no order as to costs.
Law Points
- Natural justice
- Right to be heard
- Order 22 Rule 3 CPC
- Substitution of legal representative
- Ex parte order
- Notice to opposite party
