Imtiyaz Hussain, J.
1. This revision is directed against the order dated 14.6.2006 passed by City Judge, Srinagar in COS 174/86 titled Ved Paul Sahani v. Sat Paul Sahani.
2. In a suit for ejectment and recovery of arrears of rent filed by Ved Paul Sahani against Chuni Lal S/o Late Kripa Ram C/o Prem Ji and Co. Old Hospital Road Gonikhun, Amirakadal, Srinagar the defendant expired during the pendency of the suit. The plaintiff moved an application for brining the legal representatives of the deceased-defendant on record on 27.1.1996. The legal representatives caused their appearance through their Advocate Mr. Mushtaq Ahmed. The Court without formally impleading the legal representatives as defendants in the case proceeded with the suit and conducted the proceedings. On 23.5.2004 the legal representatives of the deceased defendants filed an application praying that application of plaintiff dated 27.1.1996 be decided first and they be formally brought on record as defendants in the plaint and they be allowed to make their defence appropriate to their character as legal heirs of the deceased defendants. The Court considered the said application of the legal representatives of the deceased defendant and by means of the order impugned held that the application was not maintainable as the legal heirs of the deceased defendant have already been brought on record. The Court, therefore, dismissed the said application.
3. Feeling aggrieved of the said order the present revision petition has been filed by the legal representatives of the said deceased defendant mainly on the ground that the Court has ignored the mandatory provisions of the Code of Civil Procedure and has without formally bringing the legal representatives as defendants in the case proceeded with the suit which has caused prejudice to them. Petitioners are also aggrieved that when this fact was brought to the notice of the learned trial Court, the Court instead of following the due procedure of law, has summarily rejected their prayer and thus caused substantial failure of justice.
4. Heard the learned Counsels. I have perused the trial courts record. I have also gone through the order impugned. On consideration of the matter I find there is no ground to allow the present revision petition.
5. The record would show that admittedly the defendant Chuni Lal has died on 27.1.1996 i.e. during the pendency of the said civil suit. The plaintiffs filed an application on 27.1.1996 for bringing the legal representatives of the deceased defendants on record. The Court issued notices to the legal representatives but despite such notice they did not appear. The Court directed their service through publication. On 22.3.1997 Mr. Mushtaq Ahmed, Advocate caused appearance before the trial Court on behalf of the legal heirs and sought time to produce power of attorney on their behalf. The learned Counsel later produced the power of attorney on 17.5.1997 thereafter the Court dealt with the case in accordance with the procedure and recorded the statement of the witnesses produced by the legal representatives of the deceased defendants. The interim orders would show that the legal representatives of the deceased defendants have actively participated in the proceedings of the case. They have moved the Court for amendment of written statement and have even challenged some of the orders of the trial Court before this Court through various revision petitions. When the legal representatives were so actively participating and defending the case, there was no need to pass a formal order as prayed by the legal representatives to Court, to bring them on record as the defendants in the case. The trial Court has considered this aspect of the case and has passed a detailed and well reasoned order holding that the provisions of the Code of Civil Procedure have been complied with in the case. The Court has observed as under:
The present suit is pending before this Court since 24.11.1986 and the basic principle underlying Order 22 Rule 3 and 4 is indisputable a facet of natural justice or a limb of audi alteram partem rule which is that a person must be giving an opportunity of being heard before a decision one way or the other affecting him is recorded. As a corollary to this rule it is provided in the Code of Civil Procedure that where a party to the proceeding dies pending the proceedings and the cause of action survives the legal representatives of the deceased party should be brought on record which only means that such legal representatives must be afforded an opportunity of being heard before any liability is fastened upon them. It may be that the legal representatives in a given situation may be personally liable or the estate of the deceased in their hands would be liable and either case or decision one way or the other, adverse or favourable to them, cannot be recorded unless they are given an opportunity of being heard. Order 22 Rule 3 and 4 codify these procedural safeguards translating into statutory requirement one of the principle of the natural justice.
If this is the discernible principle underlying Order 22 Rules 3 and 4 it has been demonstrably established by the interpretation put on this rule. Original view was that all legal representatives of a deceased plaintiff or defendant must be substituted on the pain of the action abating. With utmost diligence from a multitude sonic one may escape notice and the consequent hardship in abatement of act ion let this Court assert the principle that where some legal representatives are brought on record permitting an inference that the estate is adequately represented, the action would not abate though it would be the duty of the other side to bring those legal representatives on record who are over looked or missed even at a later date. When the aforementioned provisions speak of a legal representatives it only means that if after diligent and bonafide enquiry the party liable to bring the legal representatives of the deceased party and bring them on record within the time limited by law, there is no abatement of the suit or appeal on the ground that some other legal representatives have not been brought on record, because the impleaded legal representatives sufficiently represent the estate of the deceased and the decision would bind not only those impleaded but the entire estate including the interests of those not brought on record.
A substitution of legal representatives of the deceased party in a suit even against inter-locutory order would enure for the subsequent stages of the suit on the footing that the suit is a continuation of application and introduction of a party at one stage of an application would enure for all subsequent stages of the suit. This approach is merely an extension of the principle well recognised by courts that if legal representatives are before the Court in the given proceeding in one capacity it is immaterial and irrelevant if they are not formally impleaded as legal representatives of the deceased party in another capacity (Refer AIR 1979 SC 1393).
In the instant case all the legal heirs of Chuni Lal were summoned who participated in the proceedings and examined witnesses of the plaintiff and also that of their own, filed different applications before this Court and revision petitions before the Court of Hon'ble High Court, thus the anxiety of the Court should be whether those likely to be affected by the decision in the proceeding were before the Court having full opportunity to canvass their case. Once this is satisfied it can be safety said that the revisions contained in Rule 3 and 4 of Order 22 are satisfied in a given case. In other words, those legal representatives were before the Court all throughout the proceedings of the suit, revisions, etc. as parties to the suit and canvassed their case and were heard by their advocates and they had the full opportunity to put-forth whatever contentions were put to them in the proceedings and to contest the contentions advanced against them by the opposite side and yet if the other view is taken that as they were not formally impleaded as legal representatives of the deceased defendant, it would be wholly injustice.
It is the original party's right and liabilities that have to be considered and not those of the legal representatives. A defence for instance, not open to a defendant when alive, can not be raised by the legal representatives in this character as such. He has to adopt the pleadings filed by the original defendants and has to take up the proceedings from the stage at which it was left when the original party died. The legal representatives' can thus urge all the contentions except those which were personal to the deceased defendant. The statutory protection against eviction is such a personal plea available to the statutory tenant and not to his legal representatives.
6. Learned Counsel for the petitioners referred to Order 22 Rule 4 of the Code of Civil Procedure and contended that under these provisions where the defendant in a case dies it is obligatory on the part of the plaintiff to move an application in this behalf praying to the Court to bring the legal representatives of the deceased defendant on record. The Court shall on such application, cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. In case the procedure is not followed the suit, according to the learned Counsel shall abate.
Order 22 Rule 4 provides as under:
Procedure in case of death of one of several defendants or of sole defendant. (1) Where of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representatives of the deceased defendant.
(3) Where within the time limited by law no application is made under Sub-Rule (1), the suit shall abate as against the deceased defendant.
(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.
(5) Where
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1995, and the suit, has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1995 for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said Section 5, have due regard, to the fact of such ignorance, if proved.
A perusal of the rule would show that on the death of a defendant, the plaintiff shall move an application for bringing the legal representatives of the deceased defendant on record and if no such application is filed the suit will abate. Thus the abatement of suit will take place only when such an application is not filed within the time prescribed.
7. In the present case I find the plaintiff has duly applied and filed the application for bringing the legal representatives of the defendants on record. Hence the question of abetment of the suit will not arise at all. The Court did not pass a formal order so the plaintiff should not suffer for that as the act of Court should prejudice none particularly when the legal representatives appeared and duly participated in the proceedings.
8. In the peculiar circumstances of the case, I find the lapse on the part of the trial Court for not passing a formal order to bring the legal representatives of the deceased defendant on record and array them as defendants in the case will not amount to miscarriage of justice as the purpose of bringing the legal representatives on record is to enable them to defend the case effectively and the record shows that the legal representatives have been provided with sufficient opportunity to defend the case and in fact they are defending the case effectively. Non-compliance of the provisions in such circumstances would not amount to any illegality or irregularity causing prejudice to other side.
9. I, therefore, do not find any force in the present petition which is hereby dismissed. Order accordingly.