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[1998-LAWS(BOM)-8-54 ;1998-BCR-4-665; 1998-MhLJ-3-618 ]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY Writ Petition 2332 of 1984 Jayalaxmi Janardhan Walawalkar Versus Lalchand Laxmichand Kapasi -----Respondant -----Appellant

Coram : : R.M.Lodha J. For Date : Aug 18,1998 -------------------------------------------------------------------------------( 1. ) NONE appears for the parties. ( 2. ) THE writ petition relates to the year 1984 and earlier also the writ petition was dismissed for default and then restored. In the circumstances, I thought it fit to consider the matter on merits and in the absence of the learned Counsel for the parties, I have perused the impugned order dated 30-3-1984 and the available material. ( 3. ) ONE Janardan P. Walawalkar filed ejectment suit against Krishnaji L. Prabhu (respondent No. 2 herein) in the year 1972 in the Court of Small Causes. In that proceeding decree for eviction was passed against the respondent No. 2 herein. The decree holder Janardhan P. Walawalkar levied execution in which Lalchand Laxmichand Kapasi (respondent No. 1 herein) obstructed the execution of the said decree. The obstructionist notice was made absolute in favour of decree holder. Before the decree could be executed against obstructionist the decree holder Janardhan P. Walawalkar died. The present petitioners are heirs and legal representatives of deceased decree holder. The 1st respondent obstructionist also filed a regular declaratory suit against Janardhan P. Walawalkar and the respondent No. 2 herein in the Court of Small Causes and obtained an injunction order restraining decree holder Janardhan. P. Walawalkar from executing the decree passed against respondent No. 2. After the death of Janardhan P. Walawalkar, the respondent No. 1 who filed suit for declaration against him did not take any steps to bring the legal representatives of deceased Janardhan P. Walawalkar on record and, therefore, and application was made by present petitioner No. 6 Dinesh J. Walawalkar, one of the legal representatives before the trial Court that the suit filed by respondent No. 1 herein titled as R. A. D. Suit No. 2376 of 1973 has abated. Thereupon the respondent No. 1 (plaintiff in Suit No. 2376 of 1973) made an application for impleadment of present petitioners as party defendants and consequential amendments. The learned trial Court by the impugned order dated 30-3-1964 allowed the said application which is subject matter of challenge in the present writ petition. ( 4. ) THE trial Court held that under Rule 10 (2) of Order 1 of Code of Civil Procedure, the Court has power at any stage of the proceedings either upon or without an application by the party to order that name of the person who ought to have been joined and whose presence before the Court is necessary to enable the Court to effectually and to completely adjudicate upon and settle all the questions involved in the suit be added and since the legal representatives of the deceased defendant No. 2 (Janardhan P. Walawalkar) were necessary for deciding the dispute effectually and completely, they may be allowed to be impleaded as parties. The trial Court, thus, allowed the application made by the respondent No. 1 herein for impleadment of the legal representatives of deceased Janardhan P.

Walawalkar (defendant No. 2) in purported exercise of its power under Order 1, Rule 10 (2) C. P. C. ( 5. ) IN (Union of India v. Ram Charan, (deceased) through his Legal Representatives) A. I. R. 1964 S. C. 215 the Apex Court held thus:"the Court is not to invoke its inherent power under section 151, C. P. C. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time. " ( 6. ) IF the appropriate steps are not taken for substitution and bringing the legal representatives of deceased party in time when the right to sue survives abatement of the suit takes place automatically. Abatement of a suit takes place of its own force by the passage of time and no specific order is required to be passed. In other words legal consequence of abatement takes place if a party to a suit dies and application for substitution is not made in time. Such legal consequence cannot be set at naught indirectly by invoking either provisions of Order 1, Rule 10 or section 151 of Code of Civil Procedure by applying for impleadment of legal representatives of deceased party at any time after the suit has abated and the said abatement has not been set aside. What has not been done directly be seeking substitution and bringing on record the legal representatives under Order XXII, Rule 3 or 4 as the case may be or for setting aside the abatement under Order XXII, Rule 9, a party cannot be permitted to invoke the inherent jurisdiction under section 151 C. P. C. or the provisions of Order 1, Rule 10 (2) C. P. C. indirectly . The law provides 90 days time to apply for bringing the legal representatives on record of deceased party to save the suit from abatement. If such an application is not made within time, an application has to be made for setting aside the abatement and if the party is able to show sufficient cause which prevented him from making the application in time, the courts may pass appropriate order setting aside the abatement. But the specific provisions of Order XXII cannot be negated by indirectly making an application after lapse of time either under section 151 C. P. C. or under Order 1, Rule 10 (2) C. P. C. or suo motu invocation of such power by the Court. The wide powers given to the Court under Order 1, Rule 10 (2) are not intended to override the specific provision of Order XXII, Rule 3 or 4 or 9 C. P. C. After the abatement of suit the Court has no jurisdiction to substitute the heirs by indirect method of impleadment as necessary parties under Order 1, Rule 10 C. P. C. or by invocation of inherent jurisdiction under section 151 C. P. C. since nothing remains to be decided or adjudicated by the Court . In view of the aforesaid legal position which seems to me to be clear and admits of no doubt, the trial Court seriously erred and rather committed a grave error of jurisdiction in allowing the application for impleadment of legal representatives of deceased party when the suit had abated and the said abatement was not set aside. ( 7. ) THE impugned order, therefore passed by the Court of Small Causes on 30. 3. 1984 cannot be sustained and has to be set aside and is set aside accordingly. ( 8. ) THE writ petition is, therefore, allowed. The order passed by the Small Causes Court on 30-3-1984 is set aside. Consequently, R. A. Declaratory Suit No. 2376 of 1973 Lalchand Laxmichand Kapasi v. Krushaji Ladoba Prabhu, stands abated. By virtue of abatement of the said suit, the interim orders passed in the said suit also stand vacated. Since neither of the parties have appeared, no order as to costs. Petition allowed.