Writ Petition No. 146130 OF 2020 (GM-CPC)
Shobha & Others Vs Karewwa & Others
DATE OF JUDGEMENT:
July 12, 2022
Petitioners – Shobha & Others
Respondents – Karewwa& Others
Justice R. Devdas
- A Writ Petition was filed under Article 226 and Article 227 of the Constitution of India, to set aside the order passed by the trial court that dismissed the grant of bringing the legal representatives on record after the death of the sole plaintiff.
- The circumstances wherein the legal heirs or representatives could be brought on record was discussed in the same.
- Whether the rejection of the appeal by the trial court is valid and whether there is a right to sue on behalf of the deceased plaintiff by his legal representatives.
- ARTICLE 226 OF THE CONSTITUTION OF INDIA: Under this Article it empowers the High Court to issue orders, writs to any authority or person. These writs include Mandamus, Certiorari, Prohibition, Habeas Corpus, Quo Warranto.
- ARTICLE 227 OF THE CONSTITUTION OF INDIA: Under this Article the High Court has the superintendent power over the other courts and tribunals.
- SECTION 151 OF CODE OF CIVIL PROCEDURE, 1908: This is a discretionary power inherent in every court that aims at securing the ends of justice in accordance with the law. This power is used only in absolutely necessary conditions when there exists no provision governing that matter.
- ORDER 22 RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908: it provides that the death of the plaintiff or the defendant does not lead to abatement of the suit if there exists right to sue.
- ORDER 22RULE3 OF THE CODE OF CIVIL PROCEDURE, 1908: It deals with the procedure wherein there has been death of one of the several plaintiffs or of the sole plaintiff himself. When if the one among the several plaintiffs dies or the sole plaintiff himself dies and yet the right to survives the court can on the application made by the legal representatives of the deceased plaintiff shall be made a party and thus proceeded with the suit.
- SECTION 306 0F THE INDIAN SUCCESSION ACT, 1925: This section deals with provisions as to where the administrators and executors can continue with rights vested in any deceased plaintiff where there exists right to sue and except in cases where it is an offence of defamation, assault or personal injury or death to continue the actions of or against such person. The legal representatives are given the position of executors and administrators under this section.
- The suit was filed by the original plaintiff was a declaration suit declaring as an absolute owner of the suit property herein. But in due course of the suit the plaintiff died. Thus, for the same the legal representatives of the deceased plaintiff filed an application under Order 22 Rule 3 of the code of civil procedure so as to proceed with the suit. The same was dismissed by the trial court without referring as to whether the right to sue survives or not. For the same the petitioners filed a writ petition for the Writ of Certiorari.
- On considering the both the counsels the court found that when a sole plaintiff is died in the course of the suit and thus the application was made by the legal representatives to further proceed with the suit, the trial court in here had to first determine whether for such legal representatives the right to sue still survives with reference to the provisions of code of civil procedure under the Order 22 Rule 1.
- The court relied upon the judgement of the case Melepurath Sankunni Ezhuthassan vs Thekittil Geopalankutty Nair [(1986) 1 Scc 118] where it was held that if the right to sue does not survive then the suit shall be abated after the death of the sole plaintiff. It further held that with reference to provisions under Order 22 Rule 3 of the Code of Civil Procedure that if the right to sue survives then by an application made by the legal representatives, they shall be made a party to the suit and the suit shall proceed.
- The court relied upon the section 306 of the Indian Succession Act 1925, and held that unless and until the offence is of defamation, assault, personal injury or death the administrators or the executors can continue the actions against or for the deceased plaintiff. It is further held that what applies to the administrators and executors applies to the legal representatives also.
- The court further held that the trial court and the High Court failed to look into or raise the question with regard to the above aspect as to whether the relief claimed is personal or the liability therein is personal or shall have any benefit or binding over the legal representatives of the deceased plaintiff. Thus, if there existed a disputed property that is heritable or partible shall not only have a benefit but also an obligation and is bounded by the legal representatives.
- Thus, the court referred to all of the principles laid thereon and held that the trial court cannot reject any application without verifying as to whether the right to survives.
- Though the bequeathing of the will by the defendant Smt. Sumithra cannot be transferred, the court held that the same should haven considered by the trial court.
- The court in relation to the issues raised had held that the trial court rejecting the application without considering the right to sue survives or not cannot be sustained and thereafter abating the suit solely on the death of the sole plaintiff is not valid.
Thus, the application for the substitution of legal representatives for proceeding with the suit when the sole plaintiff died cannot be rejected when righ
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