Rukmini Dattatraya Naik (Smt.) and ors. Vs. Parmanand Lalchand Joshi and ors. - Court Judgment

R.M. Lodha, J.

1. The question that calls for consideration and falls for determination in this writ petition filed under Article 227 of the Constitution of India is whether upon death of the appellant, the application for bringing his legal representatives having been allowed, it was obligatory on the part of the legal representatives to incorporate their names in the array of parties as appellants by substituting the name of deceased appellant within 14 days from such order.

2. The facts in which aforesaid question arises may be noted briefly. The present respondents who are original plaintiffs filed the suit for eviction against the tenant Dattatraya Naik in the Court of Small Causes, Pune. After trial, the said suit was decreed. The defendant Dattatraya Naik preferred appeal challenging the decree passed by the trial Judge. During pendency of the appeal on 14-1-92, the sole appellant Dattaraya Naik died. The present petitioners who are his legal representatives applied for substitution and for bringing them on record as legal representatives within time on 1-4-92. The application was granted by the Appeal Court on 2-4-92. However, the cause title of the appeal was not amended as per order passed by the Appeal Court on 2-4-92 for quite some time and ultimately, an application came to be filed by the petitioners (legal representatives) on 30th June, 1993 before the Appeal Court that now they be permitted to amend the cause title by bringing them on record. The said application was contested by the respondents and the Appeal Court vide impugned order dated 14-7-92, rejected the said application. The Appeal Court observed that since the legal representatives did not carry out amendment in the appeal within 14 days of the order dated 2-4-92 when the application for bringing the legal representatives was granted, the appeal had abated and it was obligatory on the part of the legal representatives incorporating their names within 14 days of the orders.

3. As it appears the contention of the respondents that the petitioners were required to carry out amendment in the array of parties by incorporation their names as legal heirs within 14 days of the order dated 2-4-92 was based on the provision contained under Order 6, Rule 18 C.P.C. The Appeal Court was persuaded by the said contention correctness of which is under challenge herein. The Appeal Court seems to have overlooked the basic fact that amendment in the cause title is not an amendment in the pleading. Order 6, Rule 18 C.P.C. only applies where the amendment in the pleading has been granted under Order 6, Rule 17 C.P.C. and unless otherwise, ordered by the Court, the amendment is required to be carried out within 14 days. The view that cause title of the plaint or appeal is not a pleading also gets support from the provisions of Order 6, Rule 15 C.P.C. which provides for verification of pleadings. As per Order 6, Rule 15 every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. The person verifying shall specify by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and that he verifies upon information received and believed to be true. The cause title is not required to be verified since it is not part of pleadings. By applying analogy of Order 6, Rule 18 C.P.C. the Appeal Court committed serious error in holding that the cause title in the appeal was required to be amended within 14 days of the order dated 2-4-92 whereby legal representatives of deceased appellant were ordered to be brought on record. The learned Counsel for respondents could not cite any rule obligating the legal representatives of the deceased appellant to take necessary steps in amending the cause title of appeal after the Court granted the application for bringing the legal representatives of deceased appellant on record. The order passed by the Appeal Court allowing the application for bringing the legal representatives of deceased appellant on record does not direct them to carry out the Court's order for substitution by incorporating the names of legal representatives. The amendment in the array of parties pursuant to the order passed by the Court on 2-4-92 in the circumstances could have been done by the legal representatives of deceased appellant or by the office since it was a ministerial function. More than six decades and three years before the Division Bench of this Court in H.H. Darbar Alabhai Vajsurbhai and others v. Bhura Bhaya and others A.I.R. 1937 Bombay, 401 considered the question whether upon the death of the respondents in the appeal, the application of appellant to bring legal representatives of deceased respondent having been allowed, was it the duty of the appellants to take steps to carry out the order allowing legal representatives to be brought on record or was it required of the Court establishment to perform that ministerial function by making necessary corrections in the array of parties. The Division Bench of this Court thus ---

'Turning to the merits of the appeal, it is obvious that it was not brought to the notice of the learned District Judge when he passed the preliminary order of abatement on 21st October, 1932, that with the exception of two respondents' heirs and legal representatives, all the remaining deceased respondents' heirs and legal representatives were ordered by the Court to be brought on the record upon the application of the appellants. It was no part of the appellant's duty to take the necessary steps to carry out the Court's order for the substitution of the names of the heirs of the deceased respondents who were properly served with notices in order to correct the record of the Court in terms of its order. That was a ministerial function which the Court's establishment was charged to perform. If it was not performed or neglected, the fault would not lie with the appellants. Extracts of the roznama have been produced to support the appellant's contention that from time to time within the period of limitation they had applied for the substitution of names of the heirs of the deceased respondents. The correctness of the statement of the appellants in that respect has not been disputed. Perhaps if those facts had been brought to the notice of the Lower Court at an earlier stage, it would have restricted its remarks to the prayer in the application, Ex. 16. On the application for amending the record subsequently made on 10th November, 1932, the Court became aware that the neglect was due to the office establishment's failure to carry out the Court's order. But the view of the Court was that notwithstanding that neglect 'the appellants should have taken care to see that proper respondents were included'. The first indication of the failure of the office to amend the record was perhaps given to the appellants and their pleader when a certified copy of the order of the first Court was obtained in 1930. If the pleader of the parties had attempted to compare the names of the numerous parties given in the title with those in the original plaint and in the various applications for amendments thereof, the omission might have been brought to light. But the necessity for that comparison would arise only upon the assumption that the Court's establishment had failed to carry out its orders. That would in my opinion be an unreasonable assumption having regard to the normal course of business and the limited opportunities for comparison which a lawyer possesses in such matters. It would be an obvious injustice to the plaintiffs in the circumstances to dismiss their prayer for amendment of the record when the principal offenders in the matter were not the plaintiffs themselves.'

4. K. Jagannatha Shetty, J., (as he then was) in Kariyappa and others v. Patel Rudrappa and others, : AIR1976Kant29 concurred with the aforequoted view of this Court and held that once the order is made under Order 22, Rule 3 or 4, the said order is to be given effect to by recording the names in the cause title of the pleadings and it might be done either by the party who obtained the order or by the office of the Court. It was also held therein that when such change is made or recorded, it cannot be considered as an amendment of the plaint within the meaning and scope of Order 6, Rule 17. In para 5 of the report, it was held thus ---

'............. It is seen therefrom that when the defendant dies and the right to sue survives the Court, on an application made in that behalf shall causes the legal representative of the deceased defendant to be made a party and shall proceed with the suit. When once the order is made under the above provision, the said order should be given effect to by recording the necessary names in the cause title of the pleadings. It might be done either by the party who obtained the order or by the office of the Court. All that is required to be done is to effect the necessary changes in the particulars of the plaint in substituting the names of the heirs of the deceased. When such change is made or recorded, it cannot be considered as an amendment of the plaint within the meaning and scope of Order VI, Rule 17. Substitution of the legal representatives of the deceased is made to give effect to the order made by the Court under Order XXII, Rule 3 or 4. Order VI, Rule 17 or Order VI, Rule 18 of the Civil P.C. has no application to such situation.'

5. I have already noted above that amendment in the cause title is not the amendment in the pleading and once the Court passes an order directing substitution of deceased party, the cause title may be corrected by the concerned party or the establishment of the Court unless ordered otherwise. Once the Appeal Court allowed the application made by the legal representatives of deceased appellant for bringing them on record, the order has to be given effect to and there was no question of abatement of the appeal. The application for bringing legal representatives was already made in time which was allowed as such and merely because the cause title was not corrected as per the order for bringing the legal representatives on record, by no stretch of imagination, can it be said that appeal has abated. When the appeal did not abate, there was no question of making any application for setting aside the abatement. The whole approach of the Appeal Court in the impugned order is misconceived.

6. The impugned order therefore, has to be set aside.

7. Accordingly, the writ petition is allowed against respondent Nos. 1 to 6 and 8 to 10 since it stands dismissed against respondent Nos. 7 and 11 as per Addl. Registrar's order dated 2-8-99. The order dated 14-7-94 passed by the 6th Addl. District Judge, Pune is quashed and set aside as against respondent Nos. 1 to 6 and 8 to 10. The petitioners are permitted to carry out amendment in the cause title of Civil Appeal No. 540 of 1988 within four weeks from today and Civil Appeal No. 540 of 1988 is restored to the file of 6th Addl. District Judge, Pune as against respondents except respondent Nos. 7 and 11 herein and the Appeal Court is directed to hear and decide the same in accordance with law expeditiously and preferably within three months from the date of appearance of the parties. No costs.

8. The office is directed to send the writ to the concerned Court forthwith.

Certified copy expedited.