[O.22 R.10 CPC] New Trustee Not Legal Representative But Successor in Interest: J&K High Court Clarifies

Order 22 Rule 10 CPC prescribes that if any interest is passed from one plaintiff or defendant to any other person during the pendency of the suit, the suit can continue by or against the person in whose favour such interest is created.

Justice Javed Iqbal Wani made these observations in a case that originated from a suit for a permanent prohibitory injunction filed by the Sadati Al Hussaini Al Jalali Trust, through a trustee. After the death of the trustee who filed the suit on July 16, 2011, the defendants filed an application under Order 22 Rule 3(2) of the Code of Civil Procedure, claiming that the suit abated due to the trustee's death.

The Trial Court concurred with the view of the defendants and dismissed the suit. In appeal, the First Additional District Judge, Srinagar, affirmed this decision compelling the Trust to subsequently challenge these orders through the instant petition.

The Petitioner Trust, represented by Advocate H. U. Salati, argued that the suit should not abate as it was filed in a representative capacity with the permission of the Trial Court. They contended that the courts below had committed a material irregularity and caused a serious miscarriage of justice by overlooking this fact. The respondents, represented by Advocate Sajjad Ahmad Mir, sought dismissal of the petition, supporting the lower courts' decisions.

Court Observations:

Justice Wani, in his judgment, meticulously examined the relevant provisions of the CPC, particularly Order 1 Rule 8 (representative suits), Order 22 Rule 1 (survival of right to sue), Order 22 Rule 3 (death of a plaintiff and abatement), and Order 22 Rule 10 (devolution of interest).

The Court relied on the Supreme Court's ruling in "Dhurandhar Prasad Singh Vs. Jai Prakash University and Ors.," which differentiates between cases under Rules 3, 4, and 10 of Order 22 and explained that in cases under Rule 10, the legislature did not prescribe a procedure for bringing new parties on record if interest devolves during the suit, implying that the original party continues the proceedings.

Emphasising the distinction between a legal representative and a successor in interest the court cited G. Christhudas and Another Vs. Anbiah (dead) and others to establish that a representative suit does not abate due to the death of the original plaintiff as the suit is filed on behalf of all beneficiaries. Additionally, a new trustee is not a legal representative but assumes the interest of the Trust property, making Order 22 Rule 10 applicable, the court underscored.

Reproducing the observations of the Supreme Court to clarify that representative suits don't abate on the death of authorised trustee the court recorded,

“a representative suit does not abate on the death of the plaintiff for two-fold reasons, firstly the plaintiff does not represent only himself but represents all other persons on whose behalf he is prosecuting the suit, thus all those persons are also parties to the suit albeit constructively… and secondly the persons represented by the plaintiff cannot said to be “legal representatives of the deceased plaintiff within meaning of Section 2 (11) of Code of Civil Procedure and hence the provisions of order 22 would not apply to such case”.

Observing that the lower courts had overlooked these legal principles, Justice Wani set aside the impugned orders and revived the suit. Accordingly, the trial court was directed to proceed with the case, recognizing the new trustees as representatives of the Trust.

Case Title: SADATI AL HUSSAINI AL JALALI TRUST Vs QASIM GANAIE AND OTHERS

Citation: 2024 LiveLaw (JKL) 154

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