No Bar For Filing Application Under Order 1 Rule 10, Even When That Filed Under Order 22 Rule 4 Of CPC Is Dismissed As Not Maintainable: SC [Read Judgment]

Justice, according to the law, does not merely mean technical justice, but that law is to be administered to advance justice, the bench observed.

The Supreme Court, in Pankajbhai Rameshbhai Zalavadia vs Jethabhai Kalabhai Zalavadiya (Deceased) through LRs & Ors, has held that there is no bar for filing the application under Order 1 Rule 10, even when the application under Order 22 Rule 4 of the CPC was dismissed as not maintainable.

Setting aside the high court order, terming it a ‘hyper technical approach’, a bench comprising Justice Arun Mishra and Justice Mohan M Shantanagoudar observed that 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.

In the instant case, suit was filed against some persons, including a person who had already died. The court ordered that the suit had abated as against that defendant. The plaintiff’s application under Order 22 Rule 4 of the Code for bringing on record the legal representatives of deceased defendant was also dismissed by the trial court. Later, he filed an application for impleading the legal representatives of deceased defendant, which was also dismissed by the trial court 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. The high court affirmed the trial court order.

With respect to application under Order 22, the apex court observed: “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.”

But the bench also observed that the trial court 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 to 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 said.

The bench said: “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 27 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.”