Case Note & Summary
The petitioner, Samaj Bhushan Griha Nirman Sahkari Sanstha, filed a suit for specific performance of an agreement dated 16/05/1988 against Shankar Nagrare (defendant No.1) and others. During the pendency of the suit, defendant No.1 died. The plaintiff moved an application (Exhibit-87) to bring the legal heirs of the deceased defendant on record, which was allowed on 02/03/2009. However, the trial court dismissed the suit against the legal heirs for default on the ground that the plaintiff had not taken steps to file an application for issuance of summons to secure their presence. The plaintiff then filed an application (Exhibit-92) under Order 9 Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) to set aside the dismissal, which was rejected by the trial court. Aggrieved, the plaintiff filed the present writ petition. The High Court examined the provisions of Order 22 Rule 4 CPC and held that once the legal representatives are brought on record, they become parties to the suit and no separate summons need be issued to them. The court noted that the trial court had already allowed the substitution, and the legal heirs were already on record. Therefore, the dismissal for default was improper. The court also held that the application under Order 9 Rule 9 read with Section 151 CPC was maintainable as the suit was dismissed for default, not for non-prosecution. Consequently, the High Court allowed the writ petition, set aside the impugned order, and restored the suit against the legal heirs of defendant No.1, directing the trial court to proceed with the suit expeditiously.
Headnote
A) Civil Procedure Code - Order 22 Rule 4 - Substitution of Legal Representatives - Summons - Once legal representatives are brought on record under Order 22 Rule 4 CPC, no separate summons need be issued to them as they are already parties to the suit. The trial court erred in dismissing the suit for default for non-filing of summons application. (Paras 5-7) B) Civil Procedure Code - Order 9 Rule 9 - Restoration of Suit - Dismissal for Default - The application for setting aside dismissal under Order 9 Rule 9 read with Section 151 CPC was maintainable as the suit was dismissed for default, not for non-prosecution. The trial court's rejection of the application was set aside. (Paras 8-9)
Issue of Consideration
Whether the trial court was justified in dismissing the suit for default against the legal heirs of the deceased defendant when the plaintiff had already taken steps to bring them on record and no separate summons were required under Order 22 Rule 4 CPC.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 30/01/2017 passed by the trial court below Exhibit-92, and restored the suit against the legal heirs of defendant No.1. The trial court was directed to proceed with the suit expeditiously.
Law Points
- Order 22 Rule 4 CPC
- Order 9 Rule 9 CPC
- Section 151 CPC
- Suit for specific performance
- Abatement
- Setting aside dismissal
- Legal representatives
- Summons
