Supreme Court of India

Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 15549 OF 2017

Arising Out Of SLP (C) NO. 31212 of 2014

Pankajbhai Rameshbhai Zalavadia ……Appellant

Versus

Jethabhai Kalabhai Zalavadiya (Deceased)

Through LRs & Ors ……Respondents

JUDGMENT

Mohan M. Shantanagoudar, J.

Leave Granted.

2. This appeal arises out of the judgment dated 05.03.2014 passed by the
Gujarat High Court in Special Civil Application No. 16985 of 2011 dismissing
the Special Civil Application filed by the appellant, consequently affirming the
order passed by the trial Court rejecting the application filed under Order 1
Rule 10 of the Code of Civil Procedure (hereinafter Signature Not Verified
Digitally signed by NEELAM GULATI referred to as the “Code”).

Date: 2017.10.03 16:22:53 IST Reason:

3. The brief facts leading to this appeal are as under:

The appellant filed a suit on 24.06.2008 seeking to set aside a sale deed
executed in March 1995 in respect of a parcel of land which was purchased
by defendant no. 7. As on the date of filing of the suit, defendant no. 7 was
already dead. Upon the report of the process server to this effect, the trial
Court on 31.03.2009 ordered that the suit had abated as against defendant
no. 7. Initially, the appellant filed an application under Order 22 Rule 4 of the
Code for bringing on record the legal representatives of deceased defendant
no. 7. The trial Court while rejecting the said application on 09.09.2009
observed thus:

“According to the ratio laid down in the above said cases Order 22 Rule 4 of
Code will apply only when the party dies during the pendency of the
proceeding. Further held that a suit against dead person is admittedly a
nullity and therefore, Order XXII Rule 4 cannot be invoked. Further held that
the provisions of Order XXII Rule 4 of Code and Order 1 Rule 10 of Code are

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Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

different and independent. Therefore, according to heirs of deceased

defendant, the heirs cannot be joined as party because the suit is filed
against dead person. Now in this case, the endorsement for the bailiff for the
death of defendant No. 7 made on 31.01.2009 and the present application is
filed on 20.05.2009. The application is filed for setting aside abatement and
to join the heirs in this suit. Moreover, there is no case of the plaintiff that he
has no knowledge about the death of defendant No. 7 or he has made
inquiry. Therefore, as per the judgment produced by the defendant, the suit
against dead person is nullity. Moreover, the plaintiff has not mentioned the
provision under which he has filed the present application. Moreover, the
plaintiff has remedy against the heirs therefore, no injustice will cause to him.
Moreover, there are other defendants on record.

Under these circumstances, the application cannot be allowed. Hence, I pass

the following order in the interest of justice.

ORDER

1. The application is not allowed.

2. No order as to cost.” Thereafter the appellant chose to file an application

for impleading the legal representatives of deceased defendant no. 7 on
record, under Order 1 Rule 10 of the Code. The aforementioned application
also came to be dismissed by the trial Court on 03.09.2011, and confirmed
by the High Court by passing the impugned judgment. Hence, this appeal.

4. Learned counsel for the appellant/original plaintiff contended that the

subsequent application under Order 1 Rule 10 of Code could not be
dismissed by applying the principle of res-judicata merely because the
application filed earlier under Order 22 Rule 4 of the Code was dismissed on
account of non-maintainability; that the appellant has accepted the order
passed by the trial Court on the application filed under Order 22 Rule 4 of
the Code since the reasons assigned by the trial Court were proper and
acceptable inasmuch as the legal representatives cannot be brought on
record under Order 22 Rule 4 of the Code in the suit filed against defendant
no. 7, who had died prior to filing of the suit; the provisions of Order 22 Rule
4 of the Code will apply only if the sole, or one of the defendants, dies during
the subsistence of the suit. Since defendant no.7 had expired prior to the
filing of the suit, the only course open for the appellant was to implead the

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Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

legal representatives/heirs of deceased defendant no.7 on record under

Order 1 Rule 10 of the Code; hence, the earlier order rejecting the
application filed under Order 22 Rule 4 of the Code as not maintainable will
not operate as res-judicata for entertaining the subsequent application for
impleading the legal representatives of deceased defendant no.7, under
Order 1 Rule 10 of the Code. As the appellant did not have knowledge about
the death of defendant No.7, the suit has a right to survive and the mistake
committed by the appellant in not arraying the legal representatives of
deceased defendant no. 7 at the time of filing of the suit is a bona fide
mistake and not a deliberate one. Since such mistake has occurred in good
faith, the right to continue the suit against the legal representatives of
deceased defendant no.7 remains. The trial has not yet begun and hence the
issue of delay, if any, in bringing the legal representatives on record, will not
prejudice the legal representatives of defendant No.7. Since the proposed
parties are necessary parties to the suit and their impleadment cannot
prejudice anybody, the interests of justice require bringing of the legal
representatives of deceased defendant no. 7 on record.

Per contra, learned counsel appearing on behalf of the respondents

relying upon the catena of judgments reported in Ram Prasad Dagduram vs
Vijay Kumar Motilal Mirakhanwala & Ors., AIR 1967 SC 278, Madhukar
Ramachandra Keni vs Vasant Jagannath Patil & Ors., 2013 (4) Mh. L. J.
403, Jayalaxmi Janardhan Walawalkar & Ors. vs Lilachand Laxmichand
Kapasi & Ors., 1998 (3) Mh. L. J. 618, Arora Enterprises Ltd. vs
Indubhushan Obhan 1997 (5) SCC 366 contended that the trial Court as
well as the High Court are justified in rejecting the application for impleading
the legal representatives of deceased defendant no. 7 filed under Order 1
Rule 10 of the Code; since the application filed by the appellant initially under
Order 22 Rule 4 of the Code was dismissed and as the second application
filed under Order 1 Rule 10 of the Code was for the very same purpose, the
Courts below were justified in rejecting the application preferred under
Order 1 Rule 10 of the Code. He further submits that the application
preferred under Order 1 Rule 10 of the Code to implead the legal
representatives of deceased defendant no.7 is not maintainable, since the
appellant has not questioned the earlier Order dated 09.09.2009 rejecting
the application filed under Order 22 Rule 4 of the Code, and therefore the
said order has attained finality and binds the appellant; the appellant cannot

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Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

be allowed to file another application for the same relief by invoking different
provision of the Code.

5. The only question which is to be decided in this appeal is, whether the
legal representatives of one of the defendants can be impleaded under
Order 1 Rule 10 of the Code where such defendant expired prior to the filing
of the suit, particularly when the application filed by the plaintiff to bring the
legal representatives of the deceased on record under Order 22 Rule 4 of
the Code was dismissed earlier as not maintainable.

6. The bare reading of Order 22 Rule 4 of the Code makes it clear that Order
22 Rule 4 of the Code applies only in the case where the death of one of the
several defendants or the sole defendant occurs during the subsistence of
the suit. If one of the defendants has expired prior to the filing of the suit, the
legal representatives of such deceased defendant cannot be brought on
record in the suit under Order 22 Rule 4 of the Code. Before proceeding
further, it is relevant to note the provisions of Order 1 Rule 10 and Sections
151 & 153 of the Code, which read thus:

“Order 1 Rule 10: Suit in name of wrong plaintiff. –

1. Where a suit has been instituted in the name of the wrong person as
plaintiff or where it is doubtful whether it has been instituted in the name
of the right plaintiff, the Court may at any stage of the suit, if satisfied that
the suit has been instituted through a bona fide mistake, and that it is
necessary for the determination of the real matter in dispute so to do,
order any other person to be substituted or added as plaintiff upon such
terms as the Court things just.

2. Court may strike out or add parties.- The Court may at any stage of
the proceedings, either upon or without the application of either party,
and on such terms as may appear to the Court to be just, order that the
name of any party improperly joined, whether as plaintiff or defendant, be
struck out, and that the name of any person who ought to have been
joined, whether as plaintiff or defendant, or whose presence before the
Court may be necessary in order to enable the court effectually and
completely to adjudicate upon and settle all the questions involved in the
suit, be added.

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Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

3. No person shall be added as a plaintiff suing without a next friend or as

the next friend of a plaintiff under any disability without his consent.

4. Where defendant added, plaint to be amended.- where a defendant is

added, the plaint shall, unless the Court otherwise directs, be amended
in such manner as may be necessary, and amended copies of the
summons and of the plaint shall be served on the new defendant and, if
the Court thinks fit, on the original defendant.

5. Subject to the provisions of the India Limitation Act, 1877 (15 of 1877),
section 22, the proceedings as against any person added as defendant
shall be deemed to have begun only on the service of the summons.

Section 151: Saving of inherent powers of Court - Nothing in this

Code shall be deemed to limit or otherwise affect the inherent power of
the Court to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the Court.

Section 153: General power to amend – The Court may at any time,
and on such terms as to costs or otherwise as it may think fit, amend any
defect or error in any proceeding in a suit; and all necessary
amendments shall be made for the purpose of determining the real
question or issue raised by or depending on such proceeding.

7. In the matter on hand, the sale was made in favour of defendant no. 7, and
the validity of the sale deed was the subject matter of the suit. The purchaser
of the property, i.e. defendant no.7, though dead at the time of filing the suit,
was made one of the defendants erroneously. The persons who are now
sought to be impleaded under Order 1 Rule 10 of the Code are the legal
representatives of the deceased defendant no. 7. Therefore, there cannot be
any dispute that the presence of the legal representatives of the deceased is
necessary in order to enable the Court to effectively and completely
adjudicate upon and settle all the questions in the suit. Their presence is
necessary in the suit for the determination of the real matter in dispute.
Therefore, they are needed to be brought on record, of course, subject to
the law of limitation, as contended under Section 21 of the Limitation Act.

8. Merely because the earlier application filed by the appellant under Order
22 Rule 4 of the Code was dismissed on 09.09.2009 as not maintainable, it
will not prohibit the plaintiff from filing another application, which is

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Supreme Court of India
Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

maintainable in law. There was no adjudication of the application to bring

legal representatives on record on merits by virtue of the order dated
09.09.2009. On the other hand, the earlier application filed under Order 22
Rule 4 of the Code was dismissed by the trial Court as not maintainable,
inasmuch as defendant no. 7 had died prior to the filing of the suit and that
Order 22 Rule 4 of the Code comes into the picture only when a party dies
during the pendency of the suit. The only course open to the appellant in law
was to file an application for impleadment to bring on record the legal
representatives of deceased defendant no. 7 under Order 1 Rule 10 of the
Code. Hence, the order passed by the trial Court on the application filed
under Order 22 Rule 4 of the Code, dated 09.09.2009, will not act as res-
judicata.

9. Order 1 Rule 10 of the Code enables the Court to add any person as a
party at any stage of the proceedings, if the person whose presence in Court
is necessary in order to enable the Court to effectively and completely
adjudicate upon and settle all the questions involved in the suit. Avoidance of
multiplicity of proceedings is also one of the objects of the said provision.
Order 1 Rule 10 of the Code empowers the Court to substitute a party in the
suit who is a wrong person with a right person. If the Court is satisfied that
the suit has been instituted through a bona fide mistake, and also that it is
necessary for the determination of the real matter in controversy to
substitute a party in the suit, it may direct it to be done. When the Court finds
that in the absence of the persons sought to be impleaded as a party to the
suit, the controversy raised in the suit cannot be effectively and completely
settled, the Court would do justice by impleading such persons. Order 1 Rule
10(2) of the Code gives wide discretion to the Court to deal with such a
situation which may result in prejudicing the interests of the affected party if
not impleaded in the suit, and where the impleadment of the said party is
necessary and vital for the decision of the suit.

10. In the case of Vijay Kumar Motilal Mirakhanwala (supra), a bench by

majority held that the legal representatives of a party can be added under
Order 1 Rule 10 of the Code, but the date on which they were impleaded
shall be the date on which the suit was instituted by or against them. In the
said matter, this Court on facts held that the suit was barred by limitation as

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Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

per Section 22 of the Limitation Act of 1908. This Court, though it concluded
that the Court has got the power to join a particular person as a party under
Order 1 Rule 10 of the Code, did not interfere in the matter in as much as
this Court found that the suit was barred by limitation. It is relevant to note
that the said suit was of the year 1958. Since the Limitation Act, 1963 (now in
force) was at that time not in existence; this Court applied the old limitation
law and held that the suit was barred by limitation. As of now, the proviso to
Section 21(1) of the Limitation Act 1963 empowers the Court to direct that
the suit shall be deemed to have been instituted on an earlier date, where
the omission to include a new plaintiff or defendant was due to a mistake
made in good faith. Therefore, it is open to the plaintiff in the matter on hand
to prove “good faith” on his part in not including the legal representatives of
deceased defendant no. 7, during the course of trial of suit.

11. It would be relevant to note that in the Case of Bhagwan Swaroop and
Ors. vs Mool Chand and Ors., 1983 (2) SCC 132, this Court observed thus:

“4. It is true that it was incumbent upon the appellants to implead the
heirs and legal representatives of deceased respondent 1 in time. It is
equally true that the appellants were negligent in moving the proper
application. We would not question the finding of the High Court that
appellants 2, 3 and 4 knew about the death of the deceased respondent
1.

This being a suit for partition of joint family property, parties are closely
interrelated and it is reasonable to believe that at least some of the
appellants must have attended the funeral of deceased respondent 1,
as contended on behalf of the contesting respondent 2. There is some
force in the contention that when a specific provision is made as
provided in Order 22, R. 4, a resort to the general provision like Order
1, Rule 10 may not be appropriate. But the laws of procedure are
devised for advancing justice and not impeding the same. In Sangram
Singh v. Election Tribunal, Kotah (AIR 1955 SC 425), this Court
observed that a code of procedure is designed to facilitate justice and
further its ends; not a penal enactment for punishment and penalties;
not a thing designed to trip people up. This was reaffirmed in Kalipar
Das v. Bimal Krishna Sen(1983) 1 SCC 14.

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Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

5. In a suit for partition, the position of plaintiffs and defendants can be

interchange-' able. It is that each adopts the same position with the
other parties. Other features which must be noticed are that the appeal
was filed somewhere in 1972. It has not come up for hearing and the
matter came on Board only upon the application of the second
respondent intimating to the Court that the 1st respondent had died way
back and as his heirs and legal representatives having not been
substituted, the appeal has abated. Wheels started moving thereafter.
Appellants moved an application for substitution. The matter did not end
there. Heirs of deceased respondent 1 then moved an application for
being brought on record. If the application had been granted, the
appeal could have been disposed of in the presence of all the parties.
The difficulty High Court experienced in granting the application
disclosed with great respect, a hyper-technical approach which if
carried to end may result in miscarriage of justice. Who could have
made the most serious grievance about the failure of the appellants to
substitute the heirs and legal representatives of deceased respondent
1? Obviously the heirs of deceased respondent 1 were the persons
vitally interested in the outcome of the appeal. They could have
contended that the appeal against them has abated and their share has
become unassailable. That is not their case. They on the contrary, want
to be impleaded and substituted as heirs and legal representatives of
deceased respondent

1. They had absolutely no grievance about the delay in bringing them

on record. It is the second respondent who is fighting both the
appellants and the 1st respondent who wants to derive a technical
advantage by this procedural lapse. If the trend is to encourage fairplay
in action in administrative law, it must all the more inhere in judicial
approach. Such applications have to be approached with this view
whether substantial justice is done between the parties or technical
rules of procedure are given precedence over doing substantial justice
in Court. Undoubtedly, justice according to law; law to be administered
to advance justice.”

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Supreme Court of India
Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

12. This Court in the case of Karuppaswamy and Ors. vs C. Ramamurthy,

1993 (4) SCC 41 has permitted the plaintiff to modify the application filed by
him under Order 22 Rule 4 of the Code to make it an application under the
provisions of Sections 151 and 153 of the Code. In the said matter also the
suit was filed against a dead person. This Court proceeded further to
conclude that the plaintiff has shown good faith as contemplated under
Section 21(1) of Limitation Act and hence the impleadment of the legal
representatives/heirs must date back to the date of the presentation of the
plaint. In the said matter, it was observed thus:

“4. A comparative reading of the proviso to Sub-section (1) shows that

its addition has made all the difference. It is also clear that the proviso
has appeared to permit correction of errors which have been committed
due to a mistake made in good faith but only when the court permits
correction of such mistake. In that event its effect is not to begin from
the date on which the application for the purpose was made, or from the
date of permission but from the date of the suit, deeming it to have been
correctly instituted on an earlier date than the date of making the
application. The proviso to Sub-section (1) of Section 21 of the Act is
obviously in line with the spirit and thought of some other provisions in
Part III of the Act such as Section 14 providing exclusion of time of
proceeding bona fide in court without jurisdiction, when computing the
period of limitation for any suit, and Section 17(1) providing a different
period of Limitation starting when discovering a fraud or mistake instead
of the commission of fraud or mistake. While invoking the beneficent
proviso to Sub-section (1) of Section 21 of the Act an averment that a
mistake was made in good faith by impleading a dead defendant in the
suit should be made and the court must on proof be satisfied that the
motion to include the right defendant by substitution or addition was just
and proper, the mistake having occurred in good faith. The court's
satisfaction alone breaths life in the suit.

5. It is noteworthy that the trial court did not attribute any neglect or
contumacy to the conduct of the plaintiff-respondent. It was rather
observed that the plaintiff could have known the date of the death of the
first defendant only by the counter filed to IA 265 of 1975. Normally, if

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Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

he had known about the date of death of the defendant, he would have
filed the suit in the first instance against his heirs and legal
representatives. The trial court has also opined that the plaintiff was
ignorant as to such death and that is why he filed IA 265 of 1975 under
Order 22 Rule 4 of C.P.C. The High Court too has recorded a finding
that there was nothing to show that the plaintiff was aware of the death
of the first defendant and yet knowing well about it, he would persist in
filing the suit against a dead person. In conclusion, the learned Single
Judge held that since plaintiff respondent had taken prompt action it
clearly showed that he had acted in good faith. Thus the High Court
made out a case for invoking the proviso to Sub-section (1) of Section
21 of the Act in favour of the plaintiff-respondent. Sequally, the High
Court found no difficulty in allowing IA 785 of 1975 permitting change of
the provision whereunder IA 265 of 1975 was filed and in allowing IA
265 of 1975 ordering the suit against the heirs and legal representatives
of defendant 1 to be dating back to 14.11.74, the date on which the
plaint was originally presented.” (underlining is ours)

13. In the Case of Banwari Lal vs Balbir Singh, 2016 (1) SCC 607,
defendant no. 1, (who was respondent no. 1 in the first appeal) had expired 2
years prior to the decision in the first appeal, but no steps were taken to
bring his legal representatives on record. The first appellate Court decided in
favour of the plaintiff. When the matter came up in second appeal, the legal
representatives of defendant no. 1 filed an application for condonation of
delay and restoration. This Court though observed that the application ought
to have been filed under Order 22 Rule 4 of the Code inasmuch as the death
had occurred during the subsistence of the matter before the Court and the
application under Order 1 Rule 10 of the Code was not maintainable, had
proceeded to allow the application on the ground that it would be unjust to
non-suit the applicant on the ground of technicalities. This Court permitted
the legal representatives of defendant No. 1 to convert the application into
one filed under Order 22 Rule 4 of the Code.

In the cases relied upon by the respondents, viz., Jayalaxmi Janardhan

Walawalkar (supra) and in the case of Madhukar Ramachandra Keni (supra),
the death had occurred during the pendency of the matter and consequently

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Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

the suit stood abated. The case of Arora Enterprises (supra) is also not
applicable as it deals with the finality of an abatement order. In that context,
the Courts have concluded that the only course open to the
plaintiff/appellant in case if the death occurs in a pending matter, is to file an
application under Order 22 Rule 4 of the Code, and not under Order 1 Rule
10 of the Code or under Section 151 of the Code.

14. In the matter on hand, though the trial court had rightly dismissed the
application under Order 22 Rule 4 of the Code as not maintainable at an
earlier point of time, in our considered opinion, it needs to be mentioned that
the trial Court at that point of time itself could have treated the said
application filed under Order 22 Rule 4 of the Code as one filed under Order
1 Rule 10 of the CPC, in order to do justice between the parties. Merely
because of the non- mentioning of the correct provision as Order 1 Rule 10
of the Code at the initial stage by the advocate for the plaintiff, the parties
should not be made to suffer. It is by now well settled that a mere wrong
mention of the provision in the application would not prohibit a party to the
litigation from getting justice. Ultimately, the Courts are meant to do justice
and not to decide the applications based on technicalities. The provision
under Order 1 Rule 10 CPC speaks about judicial discretion of the Court to
strike out or add parties at any stage of the suit. It can strike out any party
who is improperly joined, it can add any one as a plaintiff or defendant if it
finds that such person is a necessary or proper party. The Court under
Order 1 Rule 10(2) of the Code will of course act according to reason and
fair play and not according to whims and caprice. The expression “to settle
all questions involved” used in Order 1 Rule 10 (2) of the Code is susceptive
to a liberal and wide interpretation, so as to adjudicate all the questions
pertaining to the subject matter thereof. The Parliament in its wisdom while
framing this rule must be held to have thought that all material questions
common to the parties to the suit and to the third parties should be tried
once for all. The Court is clothed with the power to secure the aforesaid
result with judicious discretion to add parties, including third parties. There
cannot be any dispute that the party impleaded must have a direct interest in
the subject matter of litigation. In a suit seeking cancellation of sale deed, as
mentioned supra, a person who has purchased the property and whose
rights are likely to be affected pursuant to the judgment in the suit is a
necessary party, and he has to be added. If such purchaser has expired, his

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Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

legal representatives are necessary parties. In the matter on hand, since the
purchaser of the suit property, i.e., defendant no.7 has expired prior to the
filing of the suit, his legal representatives ought to have been arrayed as
parties in the suit while presenting the plaint. As such impleadment was not
made at the time of filing of the plaint in view of the fact that the plaintiff did
not know about the death of the purchaser, he cannot be non-suited merely
because of his ignorance of the said fact. To do justice between the parties
and as the legal representatives of the purchaser of the suit property are
necessary parties, they have to be impleaded under Order 1 Rule 10 of the
Code, inasmuch as the application under Order 22 Rule 4 of the Code was
not maintainable.

As mentioned supra, it is only if a defendant dies during the pendency of the

suit that the provisions of Order 22 Rule 4 of the Code can be invoked. Since
one of the defendants i.e. defendant No.7 has expired prior to the filing of the
suit, there is no legal impediment in impleading the legal representatives of
the deceased defendant No.7 under Order 1 Rule 10 of the Code, for the
simple reason that the plaintiff in any case could have instituted a fresh suit
against these legal representatives on the date he moved an application for
making them parties, subject of course to the law of limitation. Normally, if
the plaintiff had known about the death of one of the defendants at the time
of institution of the suit, he would have filed a suit in the first instance against
his heirs or legal representatives. The difficulty that the High Court
experienced in granting the application filed by the plaintiff under Order 1
Rule 10 of the Code discloses, with great respect, a hyper-technical
approach which may result in the miscarriage of justice. As the heirs of the
deceased defendant no.7 were the persons with vital interest in the outcome
of the suit, such applications have to be approached keeping in mind that the
Courts are meant to do substantial justice between the parties and that
technical rules or procedures should not be given precedence over doing
substantial justice. Undoubtedly, justice according to the law does not merely
mean technical justice but means that law is to be administered to advance
justice.

15. Having regard to the totality of the narration made supra, there is no bar
for filing the application under Order 1 Rule 10, even when the application
under Order 22 Rule 4 of the Code was dismissed as not maintainable under
the facts of the case. The legal heirs of the deceased person in such a matter
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Pankajbhai Rameshbhai ... vs Jethabhai Kalabhai Zalavadiya ... on 3 October, 2017

can be added in the array of parties under Order 1 Rule 10 of the Code read
with Section 151 of the Code subject to the plea of limitation as
contemplated under Order 7 Rule 6 of the Code and Section 21 of the
Limitation Act, to be decided during the course of trial.

In view of the above, the impugned judgment of the High Court is set aside.
The appeal is allowed. The Trial Court is directed to implead the legal
representatives of deceased defendant no. 7 and bring them on record,
subject to the plea of limitation as contemplated under Order 7 Rule 6 of the
Code, as well as under Section 21 of the Limitation Act, 1963, to be decided
during the trial.

.…..…………………………………….J.

[ARUN MISHRA] ………………………………………….J.

[MOHAN M. SHANTANAGOUDAR] NEW DELHI;

October 3, 2017.

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