Valmiki J Mehta, J.@mdashThis revision petition u/s 115 of Code of Civil Procedure, 1908(CPC) impugns the order of the Trial Court dated 27.8.2013, which has allowed the application under Order 22 Rule 4 CPC read with Section 5 of the Limitation Act, 1963 moved by the respondent/plaintiff for bringing on record the legal heirs of the deceased defendant Smt. Asgari Begum. The application was moved to bring on record the legal heirs in a suit for possession and mesne profits, which was filed by the respondent/plaintiff against Smt. Asgari Begum, and who is now represented by her legal heirs.
2. There is a chequered history of this case and which needs to be stated in order to appreciate the validity or otherwise of the impugned order dated 27.8.2013. The defendant Asgari Begum expired on 19.12.2003 and thereafter an application under Order 22 Rule 4 CPC was moved giving the name of only son of the deceased Smt. Asgari Begum, inasmuch as details of other legal heirs were not known to the respondent/plaintiff. The respondent/plaintiff thereafter moved an application under Order 6 Rule 17 CPC disclosing the names of all the legal heirs of the deceased defendant. Really this application was only an additional affidavit to the pending application under Order 22(4) as the application stated the names of other legal heirs of Asgari Begum. This application for amendment was however dismissed on 24.9.2005 and whereafter the LR nos. 1 & 2 who had appeared on record moved an application for abetment of the suit on the ground that the other legal heirs had not been brought on record. This application was allowed by the trial court vide order dated 06.3.2009 holding the suit to have been abated.
3. Actually the order dated 06.3.2009 no doubt stated that the suit has been abated, really, it was an order for dismissing the suit in default as abated because none had appeared on behalf of the respondent/plaintiff on 06.3.2009. This is noted in the order of a learned Single Judge of this Court dated 18.12.2009 in C.M. (M) No. 1495/2009 filed by the respondent/plaintiff against the petitioner herein challenging the order dated 6.3.2009, and by which order dated 18.12.2009 this Court gave liberty to the respondent/plaintiff to move an application for restoration of the suit. The order of this Court dated 18.12.2009 in C.M(M) No. 1492/2009 reads as under:
The petitioner being the plaintiff is aggrieved by the order dated 6th March, 2009 of the Trial Court dismissing the suit filed by the petitioner/plaintiff as abated. On the demise of the respondent/defendant, the petitioner/plaintiff applied for substitution of two legal representatives of the respondent/defendant. However, the said legal representatives disclosed that the respondent/defendant has left other legal heirs also and liberty was given to the petitioner/plaintiff to apply for substitution of the other legal representatives also. The petitioner did not take any steps in this regard for a long period of four years. When the suit was listed on 6th March, 2009, none appeared for the petitioner/plaintiff before the Trial Court. Notwithstanding that the petitioner/plaintiff was in default of appearance, the Trial Court dismissed the suit as abated.
The counsel for the petitioner/plaintiff has contended that since some of the legal representatives had been brought on record, the suit could not have been dismissed as abated. Though there may be merit in the said plea of the petitioner/plaintiff but the fact remains that none had appeared for the petitioner/plaintiff before the Trial Court on 6th March, 2009. No application also for restoration of the suit is informed to have been filed. The Trial Court has/had no occasion to deal with the pleas of the petitioner/plaintiff. The order dated 6th March, 2009 of the trial court dismissing the suit, in default of appearance of petitioner/plaintiff, even if as abated, would remain a dismissal under Order 17 Rule 2 of CPC only, as held in
With the aforesaid observations, this petition is disposed of.
4. The respondent/plaintiff pursuant to the order of this Court dated 18.12.2009 in the suit moved an application on 19.1.2010 wherein the aforesaid facts were stated including of the fact that an application under Order 22 Rule 4 CPC was already pending wherein name of one legal heir i.e. the son of the defendant was mentioned and which application should be decided and suit restored by re-starting the trial. Any further orders as deemed fit were also prayed.
5. By the impugned order dated 27.8.2013, the trial court has allowed the application under Order 22 Rule 4 CPC read with Section 5 of the Limitation Act and impleaded the legal heirs of the sole defendant Asgari Begum, and who are the petitioners before this Court. By the impugned order further orders have also been passed because one of the legal heirs namely, Salma Begum, daughter of the defendant had died and whose legal heirs thus were also brought on record by the impugned order. An application under Order 32 Rule 3 CPC was also allowed for appointment of the next friend of one minor legal heir, Rafia Begum.
6. Learned counsel for the petitioners have very strenuously argued before this Court that the Court below has committed a grave error in passing the impugned order because the respondent/plaintiff pursuant to the order of the learned Single Judge dated 18.12.2009 in CM(M) No. 1495/2009 did not file an application for restoration of the suit, which was dismissed in default, but had only filed the application dated 19.1.2010 which only sought allowing of the application and restoring of the suit by allowing of the pending application under Order 22 Rule 4 CPC. What is essentially argued is that no reason has been given in the application dated 19.1.2010 moved by the respondent/plaintiff as to the sufficient cause and reason for non-appearance of any advocate on behalf of the respondent/plaintiff on 06.3.2009 when the suit was held to have been dismissed as abated, and which order dated 6.3.2009 is actually a dismissal in default order as observed by this Court in its order dated 18.12.2009 in C.M(M) No. 1495/2009.
7. I am unable to agree with the arguments urged on behalf of the petitioners inasmuch as there was no requirement of the respondent/plaintiff to give reasons for non-appearance on 06.3.2009 and it was enough for the respondent/plaintiff to state that the suit should not have been dismissed as abated on account of non-appearance because there was already a pending applications under Order 22 Rule 4 CPC. In my opinion, this is sufficient reason given for seeking restoration of the suit because Courts cannot dismiss the suit as abated by passing an order of default of appearance once on record there is admittedly in existence an application for bringing on record the legal heirs of Smt. Asgari Begum.
8. An order which is passed for bringing on record the legal heirs is only to ensure that litigation does not proceed in the absence of appropriate representation. It is very much possible that all the legal heirs of the deceased may not be known, and therefore, the plaintiff''s application for bringing on record the legal heirs of deceased defendant only mentioned those legal heirs which were in plaintiff''s knowledge. The plaintiff can do no more. If there are other legal heirs who have to come on record, and whose details are available subsequently, those legal heirs can be brought on record including under Order 1 Rule 10 CPC which pertain to addition of necessary parties/defendants. The technical provisions of Order 22 Rule 4 CPC cannot be hijacked by using it to frustrate the only purpose thereof and which is that, who are the legal representatives of the parties to a legal proceeding and they should be brought on record. Obviously, the petitioners would like to challenge the impugned order of setting aside the abatement and bringing on record the legal heirs because the suit for possession is filed against them and in which suit their predecessor-in-interest/Smt. Asgari Begum had claimed rights by virtue of adverse possession in the suit property, however, once there is a legal provision, and within equitable consideration the facts and law can be liberally interpreted, there is no reason why a hyper-technical view should be taken. Therefore I hold that there is no defect in the application dated 19.1.2010 merely because the order of the learned Single Judge dated 18.12.2009 required filing of an application for restoration of the suit dismissed in default.
9. Supreme Court in the judgment in the case of Municipal Corporation of Delhi Vs. R.P. Khaitan & Anr. : 79 (1999) DLT 555 (SC) has held that the headings of the petition should not frustrate the petition and the courts should treat the petition by reading its substance and not only by its heading. It has been similarly held by the Supreme Court in another judgment in the case of
10. In view of the above, I find no illegality in the impugned order dated 27.8.2013, and this petition is therefore dismissed, leaving the parties to bear their own costs.
