# Surya Prakash v. Settlement Officer Consolidation, Gonda & Ors

- **Citation:** (2023) 8 ILRA 1470
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-27
- **Case number:** Writ-B No. 316 of 2023
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surya-prakash-v-settlement-officer-consolidation-gonda-ors-50549
- **Pages:** 9

## Headnote

Civil Law- Constitution of India, 1950Article 226 - The Code of Civil Procedure1908- Section 151 & 153 -Order 1 - Rule
10 - Order 22 -Rule 4 - The Suit or Appeal
filed against the dead person(s) in regard to
whom the plaintiff(s) or appellant(s) was/were
not aware before filing suit or appeal, would not
be non-est- The Suit or Appeal would not be
dismissed only on the ground that the same has
been filed against dead person(s) and the
plaintiff(s) or appellant(s) be permitted to bring
on record the legal heirs of the deceased who
were indvertently impleaded.

Petition dismissed. (E-15)

List of Cases cited:

## Text

1470 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 8 ILRA 1470
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.07.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ-B No. 316 of 2023

Surya Prakash ...Petitioner
Versus
Settlement Officer Consolidation, Gonda &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Anand Pal Singh

Counsel for the Respondents:
C.S.C., Sri Sarvesh Kumar Tiwari

Civil Law- Constitution of India, 1950Article 226 - The Code of Civil Procedure1908- Section 151 & 153 -Order 1 - Rule
10 - Order 22 -Rule 4 - The Suit or Appeal
filed against the dead person(s) in regard to
whom the plaintiff(s) or appellant(s) was/were
not aware before filing suit or appeal, would not
be non-est- The Suit or Appeal would not be
dismissed only on the ground that the same has
been filed against dead person(s) and the
plaintiff(s) or appellant(s) be permitted to bring
on record the legal heirs of the deceased who
were indvertently impleaded.

Petition dismissed. (E-15)

List of Cases cited:

1. Gurcharan Singh Vs Surjit Singh & anr.passed
in Special Leave Petition (C) No. 7735 of 2010
decided on 02.11.2012 reported in (2012) 13
SCC 530

2. Banwari Lal (Dead) by legal representative &
anr.Vs Balbir Singh reported in (2016) 1 SCC
607

3.
Pankajbhai
Rameshbhai
Zalavadiya
Vs
Jethabhai
Kalabhai
Zalavadiya
(Deceased)
through Legal representative & ors. reported in
(2017) 9 SCC 700

4. Bank of Commerce Ltd. Vs Protab Chandra
Ghosh reported in AIR 1946 FC 13

5. Gopalakrishanayya Vs Adivi Lakshmana Rao
reported in AIR 1925 Mad 1210

6. St. of W.B. Vs Manisha Maity reported in AIR
1965 Cal 459

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard.

2. By means of the present petition,
petitioner has assailed the order dated
15.03.2023 passed by opposite party no. 1Settlement Officer Consolidation in appeal
registered
as
Case
No.1357/2020,
Computerized
Case
No.
201854083000001357
(Surya
Pal
and
Others Versus Shyam Narayan and Others),
which was preferred under Section 11(1) of
U.P. Consolidation and Holdings Act 1953
(in short Act of 1953), assailing the order
dated 23.01.1965 passed in Case No. 3792
under Section 9A(2) of the Act of 1953 by
the Consolidation Officer Bargaon, District
Gonda.

3. The facts in brief which are
relevant for disposal of the present petition,
is to the effect that the appeal was filed
impleading dead persons (17 persons).
This appeal was preferred alongwith
application for condonation of delay duly
supported
with
the
affidavit,
before
opposite party no.1- Settlement Officer
Consolidation, Gonda.

4. After presentation of appeal the
notices were issued by opposite party no.1.
Upon service of notice, petitioner no.1Surya Prakash alongwith Ram Kewal and
8 All. Surya Prakash Vs. Settlement Officer Consolidation, Gonda & Ors.
1471
Ram Roop Yadav, preferred an application
for dismissal of appeal on the ground that
appeal has been filed against the dead
persons.

5. On coming to know the defect in
appeal, the appellants-opposite party nos. 2 to
6 preferred application(s) for substitution for
bringing on record the legal heirs of the
respondent(s) in the appeal. The opposite
party no.1 after providing proper opportunity
of hearing to the parties to the litigation and
taking note of the facts of the case, vide order
dated 15.03.2023 rejected the application for
dismissal of appeal and posted the matter for
hearing on application(s) for substitution.

6. As stated by learned Counsel for the
parties, till date on account of interim
protection granted by this Court, the
application(s) for substitution have not been
disposed of.

7. Today, when the case was called out,
learned Counsel for the parties have placed
the following judgment(s) before this Court:-

1- Gurcharan Singh Versus Surjit
Singh and another passed in Special Leave
Petition (C) No. 7735 of 2010 decided on
02.11.2012 reported in (2012) 13 SCC 530.

2- Banwari Lal (Dead) by legal
representative and another Versus Balbir
Singh reported in (2016) 1 SCC 607

3-
Pankajbhai
Rameshbhai
Zalavadiya
Versus
Jethabhai
Kalabhai
Zalavadiya
(Deceased)
through
Legal
representative and others reported in (2017) 9
SCC 700.

8. In the case of Gurucharan Singh
(Supra) the Hon'ble Apex Court after
considering the judgment(s) passed in the
case of Bank of Commerce Ltd. Versus
Protab Chandra Ghosh reported in AIR
1946 FC 13, Gopalakrishanayya Versus
Adivi Lakshmana Rao reported in AIR
1925 Mad 1210, State of W.B. Versus
Manisha Maity reported in AIR 1965 Cal
459 as also Rule 8 and 9 of order 16 of
Supreme Court Rules, 1966, the Hon'ble
Apex Court observed as under:-

"8. Considering the authorities
discussed above, the aforesaid provisions
of Order 16 Rules 8 and 9 will apply where
at the time of filing of the special leave
petition, the respondent was alive and after
the filing of the special leave petition his
legal representatives are sought to be
substituted, but will not apply where the
respondent was dead when the special
leave petition was filed. Where the
respondent was dead when the special
leave petition was filed, the court can, in
the interest of justice, allow an application
for amendment of the special leave petition
and condone the delay in filing such an
application for amendment if the delay is
satisfactorily explained.

9. IA No. 2 of 2011 is, therefore,
treated as an application for amendment of
the special leave petition and as the delay
in filing the application for amendment of
the special leave petition has been
satisfactorily explained in IA No. 3 of 2011,
the delay is condoned and in the interests
of justice, IAs Nos. 2 and 3 of 2011 are
allowed. The prayers in IAs Nos. 4 and 5
are for exemption from filing official
translation and from filing death certificate
of the deceased and are allowed. IA No. 6
of 2011 is for deletion of pro forma
Respondent 2, Ajaib Singh, who appears to
be
the
attorney
of
the
contesting
Respondent 1, and is allowed at the risk of
the petitioner. The IAs stand disposed of."
1472 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In the case of Pankajbhai
Rameshbhai
Zalavadiya
(Supra)
the
Hon'ble Apex Court after considering the
judgment passed in the case Banwari Lal
(dead) (Supra) and also other judgment(s)
on the issue pertaining to filing of Suit or
Appeal, as the case may be, against dead
person(s), observed as under:-

"6. 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.

"7. 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 and 153 of the Code, which read thus:

"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.

(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 Indian 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."

"151. Saving of inherent powers
of court.-Nothing in this Code shall be
8 All. Surya Prakash Vs. Settlement Officer Consolidation, Gonda & Ors.
1473
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.

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."

8. In the matter on hand, the sale
was made in favour of Defendant 7, and the
validity of the sale deed was the subjectmatter of the suit. The purchaser of the
property i.e. Defendant 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
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.

9. Merely because the earlier
application filed by the appellant under
Order 22 Rule 4 of the Code was dismissed
on 9-9-2009 as not maintainable, it will not
prohibit the plaintiff from filing another
application, which is maintainable in law.
There
was
no
adjudication
of
the
application to bring legal representatives
on record on merits by virtue of the order
dated 9-9-2009. 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 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 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 9-9-2009, will not act as
res judicata.

10. 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
1474 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

11. In Vijaykumar
Motilal
Hirakhanwala , 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 per
Section 22 of the Limitation Act, 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
inasmuch 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 7, during the course of trial of
suit.

12. It would be relevant to note
that in Bhagwan Swaroop v. Mool Chand
(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 Rule 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, 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 Kalipada
Das v. Bimal Krishna Sen Gupta, (1983) 1
SCC 14.

5. In a suit for partition, the
position of plaintiffs and defendants can be
interchangeable. 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 first respondent had died
way back and as his heirs and legal
representatives having not been substituted,
the appeal has abated. Wheels started
8 All. Surya Prakash Vs. Settlement Officer Consolidation, Gonda & Ors.
1475
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
hypertechnical 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 first
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."

13. This
Court
in Karuppaswamy v. 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 the 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 : (SCC p.
45, paras 4-5)

"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 subsection (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
1476 INDIAN LAW REPORTS ALLAHABAD SERIES
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 breathes life in the suit.

5. It is noteworthy that the trial
court did not attribute any neglect or
contumacy to the conduct of the plaintiffrespondent. 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 No. 265 of 1975.
Normally, if 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 No. 265 of 1975 under Order 22
Rule 4 CPC. 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 subsection (1) of Section 21 of the Act in
favour of the plaintiff-respondent. Sequelly,
the High Court found no difficulty in
allowing IA No. 785 of 1975 permitting
change of the provision whereunder IA No.
265 of 1975 was filed and in allowing IA
No. 265 of 1975 ordering the suit against
the heirs and legal representatives of
Defendant 1 to be dating back to 14-111974, the date on which the plaint was
originally presented."

(emphasis supplied)

14. In Banwari
Lal v. Balbir
Singh, (2016) 1 SCC 607, Defendant 1
(who was Respondent 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 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 1 to convert the application into
one filed under Order 22 Rule 4 of the
Code.

15. In the cases relied upon by
the respondents viz. Jayalaxmi Janardhan
Walawalkar v. Lilachand
Laxmichand
Kapasi, 1998 SCC OnLine Bom 354 :
(1998) 3 Mah LJ 618 and in Madhukar
Ramchandra
Keni v. Vasant
Jagannath
Patil, 2013 SCC OnLine Bom 374 : (2013)
4 Mah LJ 403 , the death had occurred
during the pendency of the matter and
consequently the suit stood abated. The
case
of
Arora
Enterprises
Ltd. v. Indubhushan Obhan, (1997) 5 SCC
366 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 appellant-plaintiff
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.
8 All. Surya Prakash Vs. Settlement Officer Consolidation, Gonda & Ors.
1477

16. 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 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
anyone 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.

17. 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 subjectmatter thereof. 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 legal representatives are
necessary parties.

18. In the matter on hand, since the
purchaser
of
the
suit
property
i.e.
Defendant 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.

19. 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 7 has expired
prior to the filing of the suit, there is no legal
impediment
in
impleading
the
legal
representatives of the deceased Defendant 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
1478 INDIAN LAW REPORTS ALLAHABAD SERIES
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 hypertechnical approach which may result in
the miscarriage of justice. As the heirs of the
deceased Defendant 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.

20. 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 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.

21. 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 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."

10. Thus, in the view of above settled
preposition, the Suit or Appeal, as the case may
be, filed against the dead person(s) in regard to
whom the plaintiff(s) or appellant(s), as the case
may be, was/were not aware before filing suit or
appeal, would not be non-est.

11. From the law, referred above, it is
crystal clear that the Suit or Appeal would not be
dismissed only on the ground that the same has
been filed against dead person(s) and the
plaintiff(s) or appellant(s), as the case may be, can
be permitted to bring on record the legal heirs of
the deceased who were indvertently impleaded.

12. In view of the aforesaid, this Court is not
inclined to entertain the present petition.

13. Accordingly, it is dismissed.

14. Interim order, granted earlier, shall
stands discharged.

15. The opposite party no. 1 is directed to
consider the application(s) for substitutions
pending before it in view of the law referred
hereinabove, expeditiously.
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(2023) 8 ILRA 1478
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.07.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 4651 of 2002

Chief Executive Officer, U.P. Khadi &
Village Industries Board, Lko & Anr.
 ...Petitioners
Versus
Controlling Authority Under Payment of
Gratuity Act/ Asst. Labour Commissioner,
Lko & Anr. ...Respondents