[Impleading Legal Heirs Of Deceased Defendant] Jammu & Kashmir High Court Differentiates Between Order 1 Rule 10 And Order XXII Rule 4 CPC

Differentiating the ambit and scope of Order-1 R-10 (2) and Order-XXII R-4 CPC, the Jammu and Kashmir High Court has ruled that while Order-1 R-10 (2) enables the Court to add, substitute or strike down a person impleaded as party to the suit, Order-XXII R-4 on the other hand requires the plaintiff to bring legal heirs/representatives of a deceased defendant on record.

Therefore, where a case is covered by Order-XXII R-4, the provisions of Order-1 R-10 (2) stand excluded on the well known principle “general words do not derogate special provisions”, the court clarified.

Justice Javed Iqbal Wani made these expositions while hearing a revision petition whereby the revisionist had called into question an order passed by Sub Judge Rajouri whereby it had dismissed an application for impleadment of the legal heirs of the defendant holding that the suit had abated against the deceased defendant under Order-XXII R-4 (3) CPC.

The petitioner had filed a suit for declaration and possession against three defendants, including Mohd. Rafiq (defendant 1). As Rafiq died during the suit pendency, the petitioner filed an application to include the legal heirs of the deceased defendant, stating that as per the Muslim law of inheritance, succession had opened up to the legal heirs. The defendants opposed the application citing delay.

The trial court dismissed the petitioner's application, stating that the suit had abated against the deceased defendant, Mohd. Rafiq, under Order-XXII R-4 (3) of the CPC.

The question that fell for adjudication before the bench was as to whether the application filed by the plaintiff/petitioner before the trial court was an application for impleadment of a party under Order-1 R-10 (2) CPC or an application under Order-XXII R-4 CPC.

While addressing the matter Justice Wani noted that Order-1 R-10 (2) provides for addition, deletion and substitution of the parties, to be done either upon or without an application of the either party on the fundamental principle as may appear to the Court to be just in order to enable it to effectually and conclusively adjudicate upon and settle all the questions involved in the suit.

However Order-XXII Rule 4 deals with cases where a defendant dies during a lawsuit and states that if a defendant dies and the right to sue does not survive against the remaining defendant(s) alone, or if the sole surviving defendant dies and the right to sue survives, the court can make the legal representatives of the deceased defendant a party and continue with the suit. To invoke this rule, the following conditions must be met: (i) the death of the defendant, (ii) the survival of the right to sue, and (iii) the right to sue not surviving against the remaining defendant(s) alone, Justice Wani explained.

Elucidating the law regarding the application under Order-XXII Rule 4 for bringing the legal heirs of a deceased defendant on record, the court said that the application must be in writing, in the language of the court, and supported by an affidavit, although the non-filing of an affidavit is a curable irregularity. The application should include the names of the legal representatives of the deceased defendant and once the application is entertained, the court must issue a notice to the proposed legal heirs for a hearing, and then decide whether to grant or reject the application.

"It is significant to note here that if such an application is filed wherein a suit has abated, the same can also be treated as an application for setting aside of abatement, in that, the procedural provisions of Order-XXII CPC have been held to be procedural in nature and to be construed liberally to advance substantial justice. It also needs to be mentioned here that on the death of the defendant till his legal heirs are brought on record, the suit/appeal remains in a state of suspense and if a court proceeds with the matter that carries no legal effect", the bench emphasised.

In view of the said legal position the bench pointed that deceased defendant died on 06.12.2006 and the said fact of death of defendant was never brought to the notice of the trial court by the counsel for the said deceased defendant and the trial court proceeded with the trial of the suit, though, it was incumbent and obligatory upon the counsel for the deceased defendant to communicate the death of the said defendant to the trial court under in terms of provisions of Order-XXII R-10-A CPC.

Highlighting the obligation cast upon an advocate of the deceased party to intimate the factum of death of the deceased party to the court, the court said that the provision of Order-XIII R-10-A enjoins upon the court to give notice of such death to the other party as the word “there upon” appearing in Rule 10-A of Order-XXII leaves no room for doubt that on intimation received from the advocate of the deceased party, “the court shall give notice to the other party” suggesting that the duty on the part of the court is equally statutory in nature and has necessarily to be observed.

Based on these considerations the court concluded that the order impugned is not legally sustainable. Resultantly, the petition was allowed, and the impugned order was set aside.

Case Title: Hakim Din Vs Akbar Noor & Ors.

Citation: 2023 LiveLaw (JKL) 149

Click Here To Read/Download Judgement