Summary
A plaintiff seeking cancellation of a sale deed mistakenly sued its purchaser after the purchaser’s death. Rejection of an Order XXII substitution application as inapplicable did not bar a later Order I Rule 10 application to add the heirs. The Court directed their impleadment as necessary parties, expressly leaving limitation and good-faith relation-back questions for trial.
Issues
- Whether heirs of a defendant who died before suit could be added under Order I Rule 10 CPC.
- Whether rejection of the earlier Order XXII Rule 4 application operated as res judicata.
- How limitation and a good-faith mistake affected the addition.
Provisions considered
- Order I Rule 10, Order XXII Rule 4 and Sections 151 and 153, Code of Civil Procedure, 1908Death before institution falls outside Order XXII substitution; necessary heirs may instead be added through the court’s joinder and corrective powers. (¶¶ 6–9, 14–15)
Held
- Order XXII Rule 4 applies when death occurs during pendency, not before institution. In this cancellation suit, the deceased purchaser’s heirs had a direct and necessary interest and could be added under Order I Rule 10 read with Section 151, subject to limitation. (¶¶ 6–7, 14–15)
- The first application was rejected as procedurally unmaintainable, without adjudicating joinder on its merits. It therefore did not create res judicata against the later application under the correct provision. Wrongly labelling an application should not itself defeat substantial justice. (¶¶ 8, 14–15)
- Section 21(1)’s proviso allows an earlier deemed institution date if omission resulted from a mistake made in good faith. The plaintiff could prove that basis at trial; neither timely institution against the heirs nor relation back was conclusively determined by allowing impleadment. Limitation under that section and Order VII Rule 6 remained open. (¶¶ 10, 12, 15)
Result
Appeal allowed and High Court judgment set aside; trial court directed to add the deceased purchaser’s legal representatives, with limitation and good-faith questions reserved for trial.