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Sri Shiv Charan Sharma v. Sri Ashok And Others - WRIT - A No. 59637 of 2006 [2006] RD-AH 18502 (1 November 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Hon'ble Rakesh Tiwari, J

Heard Sri K.K. Arorra, counsel for the petitioner and perused the record.

Dispute in this writ petition pertains to house no. D-208 Choti Market, Govindpuri, Modi Nagar, District Ghaziabad.

Brief facts culled out from the record are that the plaintiff-respondents filed S.C.C. Suit No. 9 of 1991 claiming themselves to be owners in possession of the property, in dispute, of which the defendant-petitioner is the tenant. The property, in dispute, was initially owned by one Sri Deenanath who died as a result of which, his sons and daughters became co-owners/landlord of the disputed property.  A notice dated 22/24.5.1990 under Section 106 of the Transfer of Property Act was sent by the landlords to the defendant which was replied by him vide reply dated 30.5.1990 who also filed written statement in the suit on common grounds.

During the pendency of the suit, Sri Kaley, one of the plaintiffs(since deceased), plaintiff-respondent no. 3 died and survived by his wife Smt. Saroj Bakshi.

Sri K.K. Arora, counsel for the petitioner submits that no substitution application was filed by the plaintiff-respondents to substitute heirs and legal representatives of Sri Kaley yet the aforesaid suit was heard and decreed vide judgment and decree dated 22.9.2004 holding that the petitioner-tenant had not committed any default in payment of rent. It further found that there was structural and material alteration/changes made by the defendant-petitioner as a result, he was liable to be evicted from the disputed property.

Aggrieved by the judgment and decree dated 22.9.2004, the petitioner-tenant preferred S.C.C Revision no. 158 of 2004. Another S.C.C. Revision no. 187 of 2004 was preferred by the landlords, plaintiff-respondents against the aforesaid judgment and decree.

  Sri K.K. Arora, counsel for the petitioner submits that the matter was heard for about three days. The effect of non-substitution of the heirs/legal representatives of the deceased Sri Kaley was brought to the notice of the revisional Court but vide its order dated 10.8.2006 the revisional Court with a view to circumvent the effect of non-substitution in suo motu exercised its powers, directed amendment/correction in the plaint for bringing the heirs of late Sri Kaley on record. Therafter, application dated 17.8.2006 preferred by the petitioner for recall of the order dated 10.8.2006 which too  was rejected by the revisional Court vide impugned order dated 5.10.2006.

It is against the aforesaid orders dated 10.8.2006 and 5.10.2006 that the petitioner has come up in this writ petition. It is admitted that suit was filed and decreed on common grounds raised by all plaintiffs commonly.

It is urged by counsel for the petitioner that separate procedure has been provided in Code of Civil Procedure (for short ''Code') for amendment under Order XXII Rule 3 of the Code of plaint and for substitution under Order VI Rule 17 of the Code subject to limitation. In case of applica;tion filed beyond  prescribed period of limitation, the other party has a right to file objection and oppose the same and if no application is filed, the suit proceedings automatically stand abated under the Code.

It is settled law that when there are more than one plaintiff and only one of them dies, the suit shall not abate when right to sue survives to the other plaintiffs.

In the light of arguments advanced by Sri K.K. Arora, counsel for the petitioner, provisions of Order VI Rule 17, Order XXII Rule 3 as well as other relevant provisions of law may be examined.

Order VI Rule 17 is regarding amendment of pleadings.  It provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

Order XXII Rule 3 of the Code is as under :-

"Procedure in case of death of one of several plaintiffs or of sole plaintiff- (1) Where one of two or more plaintiff dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall, cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit."

Admittedly, in the present case, according to the own pleadings of the petitioner, right to sue survived upon Smt. Saroj Bakshi, the wife of the deceased Sri Kaley and other plaintiffs, who are co-owners,  hence Rule 3 is to be read with Rule 1 or Rule 2 of Order XXII of the Code, as the case may be.

Rule 1 of the Code provides that death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives whereas Rule 2 of Order XXII provides that where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the survivig plaintiff or plaintiffs, or against the surviving defendant or defendants.

Reading Order XXII Rules 1 to 3 with  Order VI Rule 17, right to sue in the instant case admittedly survived on the wife, as such,  the suit cannot be said to be automatically abated. The Court could, in the interest of justice and rather substantial interest of justice, direct the respondents to cause an entry to that effect to bring the heirs and legal representatives of deceased-plaintiff Sri Kaley on record by making amendment in the array of parties.  It may be pointed out that pleading in the plaint are different from array of parties in the plaint. Therefore, amendment/correction for bringing on record the heirs and legal representatives in the array of parties may be directed by the Court as it is not amendment in the pleadings of the plaint wich may require an application by the party concerned for incorporation of the amendment in the pleadings.

 If the contention of Sri K.K. Arora is tested from this angle, no prejudice would be caused to the petitionerby bringing on record the heirs/legal representatives who are necessary parties either suo motu or on appliation by either of the parties for decision of the case and doing substantial justice between the parties. It appears that evidence was over when Sri Kaley died and arguments were being heard.

 This can be looked from another angle also , i.e., if the heirs/legal representatives of late Sri Kaley are not brought on record, what would be the position of the tenant?  

According to Sri Arora, if the heirs of late Sri Kaley were not caused by the Court to be brought on record, the effect will be that the suit stands abated but the rent shall be payable to the heirs of the landlord.                       This reply is peculiar as though it is admitted that the heris of the landlord will inherit the right of deceased landlord yet they cannot be brought on ecord.  

As regards contention of Sri Arora regarding sub clause (2) of Rule 3 of Order XXII regarding limitation, it would apply only in case where a party moves an application for substitution within the period of limitation or beyond it.  In the instant case, admittedly, the matter of non-substitution was brought to the notice of the trial Court for the first time during the arguments. It came for the first time on record in grounds of revision. The revisional Court, on hearing the parties for three days directed that for the purpose of amendment, correction may be caused and entry to that effect be made on record.

Admittedly, landlord could not have brought substitution application in revision on record in the circumstances unless the Court permitted. It is upon  hearing the parties the Court permitted amendment in the array of parties, it cannot be said that the order of Court is illegal or against law. In fact it was in consonance to provisions of Order XXII Rules 1 to 3 of the Code. The substantial amendment in the pleadings.  The amendment directed by the Court was to ensure substantial justice between the parties and to effectively put into execution its order against the rightful person as orders against a dead person may not be enforced.. If the Court had not permitted to bring legal representatives of the landlord on record, even then according to Sri Arora, rent was payable to them, hence  the revisional Court rightly held that they were necessary parties otherwise even though right to sue survived on the widow of the deceased the suit could neither have proceeded nor abated in view of aforesaid Order XXII Rules 1 to 3 of the Code resulting in stalemate and tenant enjoing the tenancy without any payment of rent..

Reading provisions of Order XXII Rules 1 to 3 with Order VI rule 17 of the Code harmoniously in the present case, I do not find any illegality or infirmity in the impugned order passed by the revisional Court as the Court has directed necessary amendments which it found fit and proper for doing substantial justice between the parties. In my opinion, the Court can exercise such power suo motu also for the purpose of substantial justice between the parties.

For the reasons stated above, the petition fails and is dismissed. No order as to costs.

Dated 1.11.2006



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