Bench : Justice Arun Mishra and Justice Mohan M. Shantanagoudar
Issue:
Whether legal representatives of deceased party can be impleaded under Order 1 Rule 10 CPC when application under Order 22 Rule 4 was dismissed?
Facts:
• The appellant initially filed a suit for setting aside a sale deed for a land purchased by D7. However, D7 died before filing of the suit. The trial court held that the suit has abated against D7.
• Then, appellant filed application under Order 22 Rule 4 CPC to bring on record the LRs of D7. The trial court dismissed it stating that Order 22 Rule 4 applies only when the defendant died during pendency of the proceedings & not before filing of suit.
• Appellant filed another application to implead the LRs under Order 1 Rule 10 but it was dismissed.
• The HC affirmed the decision of the trial court.
• Appellant has filed an appeal before SC against the said order.
Appellant’s contentions:
• It was contended that subsequent application under Order 1 Rule 10 CPC could not be dismissed by applying the principle of res judicata on the ground that application under Order 22 Rule 4 was dismissed.
Respondent’s contentions :
• The order passed by HC is justified as the application filed under Order 1 Rule 10 is for the same purpose as the application filed under Order 22 Rule 4 which has been already dismissed.
Judgement:
The Supreme Court allowed the appeal and dismissed the impugned judgement of HC. There is no bar to file an application under Order 1 Rule 10 when application under Order 22 Rule 4 has been dismissed.
“ 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. ” -Para 9
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