Case Note & Summary
The petitioner, Smt. Savithramma (since deceased, represented by her legal representative Sri. R.M. Sudarshan), filed a writ petition under Article 227 of the Constitution of India challenging an order dated 18.03.2020 passed by the XXXVIII Additional City Civil Judge, Bangalore, on I.A. Nos.18 and 19. The suit in question was O.S. No. 1234/2009 (the case number is not explicitly mentioned in the text, but inferred from context) filed by the original plaintiff (Savithramma) against the respondents for partition and permanent injunction. During the pendency of the suit, the plaintiff died. Subsequently, the suit was dismissed for default under Order 9 Rule 8 CPC on 18.03.2020. The legal representative of the deceased plaintiff filed I.A. Nos.18 and 19 under Order 22 Rule 3 CPC read with Section 151 CPC seeking to bring himself on record as the legal representative and to set aside the dismissal order. The trial court rejected the applications on the ground that since the suit was dismissed for default, the application for impleadment was not maintainable. The petitioner challenged this order. The High Court examined the provisions of Order 22 Rule 3 CPC, which deals with the procedure where a plaintiff dies and the right to sue survives. The court noted that the dismissal for default does not result in abatement of the suit; the suit is still capable of being restored. The court held that the application for bringing legal representatives is maintainable even after dismissal for default, as the right to sue survives and the legal representatives must be brought on record to enable the restoration of the suit. The court also observed that the trial court should have considered the applications in conjunction with the restoration application. Accordingly, the High Court quashed the impugned order and allowed I.A. Nos.18 and 19, directing the trial court to proceed with the restoration application and the suit thereafter.
Headnote
A) Civil Procedure Code - Impleadment of Legal Representatives - Order 22 Rule 3 read with Section 151 CPC - Maintainability after dismissal for default - The court considered whether an application to bring legal representatives of a deceased plaintiff is maintainable when the suit has been dismissed for default under Order 9 Rule 8 CPC. The court held that such an application is maintainable as the dismissal for default does not result in abatement of the suit; the suit is still capable of being restored. The court reasoned that the right to sue survives and the legal representatives must be brought on record to enable restoration. The impugned order rejecting the application was quashed and the application was allowed. (Paras 1-10) B) Civil Procedure Code - Restoration of Suit - Order 9 Rule 9 CPC - Dismissal for default - The court noted that the suit was dismissed for default and an application for restoration was pending. The court held that the application for impleadment of legal representatives should be considered in conjunction with the restoration application to avoid multiplicity of proceedings. (Paras 5-8)
Issue of Consideration
Whether an application under Order 22 Rule 3 CPC read with Section 151 CPC for bringing legal representatives of a deceased plaintiff is maintainable after the suit has been dismissed for default under Order 9 Rule 8 CPC.
Final Decision
The High Court allowed the writ petition, quashed the impugned order dated 18.03.2020, and allowed I.A. Nos.18 and 19. The trial court was directed to proceed with the restoration application and the suit thereafter.
Law Points
- Order 22 Rule 3 CPC
- Section 151 CPC
- Order 9 Rule 8 CPC
- Order 9 Rule 9 CPC
- Impleadment of legal representatives
- Abatement of suit
- Dismissal for default
- Restoration of suit
