Uttarakhand High Court
20 June vs Hare Krishan Tourism on 20 June, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:5238
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition Misc. Single No. 1809 of 2022
20 June, 2025
Sachin Thakur --Petitioner
Versus
Hare Krishan Tourism
Development Limited --Respondent
with
Writ Petition Misc. Single No. 1814 of 2022
Sachin Thakur --Petitioner
Versus
Hare Krishan Tourism
Development Limited --Respondent
Writ Petition Misc. Single No. 1815 of 2022
Sachin Thakur --Petitioner
Versus
Hare Krishan Tourism
Development Limited --Respondent
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Presence:-
Mr. Neeraj Garg, Advocate for the petitioner.
Mr. Vikas Bahuguna, Advocate for the respondent.
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JUDGMENT
Since common questions of law and fact are
involved in these writ petitions, therefore they are
heard together and are being decided by a common
judgment. However, for the sake of brevity, facts of
Writ Petition (M/S) No. 1809 of 2022 alone are being
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considered and discussed.
2. Respondent filed a suit for specific
performance of an agreement to sell, against
Smt. Mithilesh Madhukar, on 15.09.2020, which was
registered as Original Suit No. 28 of 2020 in the Court
of Senior Civil Judge, New Tehri. Learned Trial Court
directed for issuance of summons to the defendant,
fixing 14.10.2020. The summon, however, returned
unserved with the remark that ‘defendant is no more
alive’.
3. The plaintiff (respondent herein) then moved
application under Order 22 Rule 2 & 4 read with Order
6 Rule 17 and Section 151 CPC, for substituting legal
representative of sole defendant. Notice on the
application was issued to legal representative of late
Mithilesh Madhukar, who was proposed to be
substituted.
4. Despite service of notice, legal representative
of late Mithilesh Madhukar did not enter appearance.
Learned Trial Court allowed the substitution application,
vide order dated 18.11.2021 and the plaintiff was
directed to carry out necessary amendment in the
plaint within three days and summons were directed to
be issued to the substituted defendant (petitioner).
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2025:UHC:5238
5. Petitioner entered appearance and moved
application under Section 151 CPC for dismissal of suit
on the ground that it was filed against a dead person,
inasmuch as, the sole defendant Smt. Mithilesh
Madhukar passed away before filing the suit, on
25.08.2020.
6. Plaintiff contended before the Trial Court that
he had no information regarding death of Smt.
Mithilesh Madhukar (defendant), and as soon as he
learnt about her death, he moved application for
substituting legal representative of sole defendant; it
was the petitioner who executed the agreement to sell
in favour of the plaintiff, as power of attorney holder of
his mother.
7. Learned Trial Court rejected the application
for dismissal of the suit made by petitioner by holding
that there is no evidence on record to show that
plaintiff had knowledge about death of sole defendant
before filing of the suit.
8. Petitioner has challenged the orders passed
by Trial Court, whereby substitution application was
allowed and his application for dismissal of the suit was
rejected.
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9. Learned counsel for petitioner submits that
the application made by respondent under Order 22
Rule 2 & 4 CPC was not maintainable, as the sole
defendant had died before filing of the suit, thus,
learned Trial Court was not justified in rejecting
petitioner’s application for dismissal of the suit, vide
order dated 12.07.2022.
10. There cannot be any quarrel with the
proposition that if one of the defendants has expired
prior to filing of the suit, legal representatives of such
deceased defendant cannot be brought on record by
invoking Order 22 Rule 4 CPC. However, due to non-
mentioning of correct provision, parties should not be
made to suffer, if power to add legal representatives of
a deceased defendant can be traced to some other
provision in CPC.
11. In the case of Pankajbhai Rameshbhai
Zalavadiya v. Jethabhai Kalabhai Zalavadiya (Deceased)
through Legal Representatives and others, (2017) 9
SCC 700, Apex Court was dealing with a case where
defendant to the suit had died prior to filing of the suit.
Paragraph nos. 16, 17, 18, 19 & 20 of the said
judgment are extracted below:-
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“16. In the matter on hand, though the trial
court had rightly dismissed the application under
Order 22 Rule 4 of the Code as not maintainable at
an earlier point of time, in our considered opinion, it
needs to be mentioned that the trial court at that
point of time itself could have treated the said
application filed under Order 22 Rule 4 of the Code
as one filed under Order 1 Rule 10 CPC, in order to
do justice between the parties. Merely because of
the non-mentioning of the correct provision as
Order 1 Rule 10 of the Code at the initial stage by
the advocate for the plaintiff, the parties should not
be made to suffer. It is by now well settled that a
mere wrong mention of the provision in the
application would not prohibit a party to the
litigation from getting justice. Ultimately, the courts
are meant to do justice and not to decide the
applications based on technicalities. The provision
under Order 1 Rule 10 CPC speaks about judicial
discretion of the Court to strike out or add parties at
any stage of the suit. It can strike out any party
who is improperly joined, it can add anyone as a
plaintiff or defendant if it finds that such person is a
necessary or proper party. The Court under Order 1
Rule 10(2) of the Code will of course act according
to reason and fair play and not according to whims
and caprice.
17. The expression “to settle all questions
involved” used in Order 1 Rule 10(2) of the Code is
susceptive to a liberal and wide interpretation, so as
to adjudicate all the questions pertaining to the
subject-matter thereof. Parliament in its wisdom
while framing this rule must be held to have
thought that all material questions common to the
parties to the suit and to the third parties should be
tried once for all. The Court is clothed with the
power to secure the aforesaid result with judicious
discretion to add parties, including third parties.
There cannot be any dispute that the party
impleaded must have a direct interest in the
subject-matter of litigation. In a suit seeking
cancellation of sale deed, as mentioned supra, a
person who has purchased the property and whose
rights are likely to be affected pursuant to the
judgment in the suit is a necessary party, and he
has to be added. If such purchaser has expired, his
legal representatives are necessary parties.
18. In the matter on hand, since the purchaser
of the suit property i.e. Defendant 7 has expired
prior to the filing of the suit, his legal
representatives ought to have been arrayed as
parties in the suit while presenting the plaint. As
such impleadment was not made at the time of
filing of the plaint in view of the fact that the
plaintiff did not know about the death of the
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purchaser, he cannot be non-suited merely because
of his ignorance of the said fact. To do justice
between the parties and as the legal
representatives of the purchaser of the suit
property are necessary parties, they have to be
impleaded under Order 1 Rule 10 of the Code,
inasmuch as the application under Order 22 Rule 4
of the Code was not maintainable.
19. As mentioned supra, it is only if a defendant
dies during the pendency of the suit that the
provisions of Order 22 Rule 4 of the Code can be
invoked. Since one of the defendants i.e. Defendant
7 has expired prior to the filing of the suit, there is
no legal impediment in impleading the legal
representatives of the deceased Defendant 7 under
Order 1 Rule 10 of the Code, for the simple reason
that the plaintiff in any case could have instituted a
fresh suit against these legal representatives on the
date he moved an application for making them
parties, subject of course to the law of limitation.
Normally, if the plaintiff had known about the death
of one of the defendants at the time of institution of
the suit, he would have filed a suit in the first
instance against his heirs or legal representatives.
The difficulty that the High Court experienced in
granting the application filed by the plaintiff under
Order 1 Rule 10 of the Code discloses, with great
respect, a hypertechnical approach which may
result in the miscarriage of justice. As the heirs of
the deceased Defendant 7 were the persons with
vital interest in the outcome of the suit, such
applications have to be approached keeping in mind
that the courts are meant to do substantial justice
between the parties and that technical rules or
procedures should not be given precedence over
doing substantial justice. Undoubtedly, justice
according to the law does not merely mean
technical justice but means that law is to be
administered to advance justice.
20. Having regard to the totality of the narration
made supra, there is no bar for filing the application
under Order 1 Rule 10, even when the application
under Order 22 Rule 4 of the Code was dismissed as
not maintainable under the facts of the case. The
legal heirs of the deceased person in such a matter
can be added in the array of parties under Order 1
Rule 10 of the Code read with Section 151 of the
Code subject to the plea of limitation as
contemplated under Order 7 Rule 6 of the Code and
Section 21 of the Limitation Act, to be decided
during the course of trial.”
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12. Similarly, in the case of Karuppaswamy and
others v. C. Ramamurthy, (1993) 4 SCC 41, Hon’ble
Supreme Court while dealing with a similar question,
held that benefit of proviso to Section 21(1) of the
Limitation Act, 1963 can be given, if the Court is
satisfied that the mistake of impleading a dead
defendant in the suit, was committed in good faith and
upheld the view taken by High Court. Paragraph Nos. 4
& 5 of the said judgment are extracted below:-
“4. A comparative reading of the proviso to sub-
section (1) shows that its addition has made all the
difference. It is also clear that the proviso has
appeared to permit correction of errors which have
been committed due to a mistake made in good
faith but only when the court permits correction of
such mistake. In that event its effect is not to begin
from the date on which the application for the
purpose was made, or from the date of permission
but from the date of the suit, deeming it to have
been correctly instituted on an earlier date than the
date of making the application. The proviso to sub-
section (1) of Section 21 of the Act is obviously in
line with the spirit and thought of some other
provisions in Part III of the Act such as Section 14
providing exclusion of time of proceeding bona fide
in court without jurisdiction, when computing the
period of limitation for any suit, and Section 17(1)
providing a different period of limitation starting
when discovering a fraud or mistake instead of the
commission of fraud or mistake. While invoking the
beneficient proviso to sub-section (1) of Section 21
of the Act an averment that a mistake was made in
good faith by impleading a dead defendant in the
suit should be made and the court must on proof be
satisfied that the motion to include the right
defendant by substitution or addition was just and
proper, the mistake having occurred in good faith.
The court’s satisfaction alone breathes life in the
suit.
5. It is noteworthy that the trial court did not
attribute any neglect or contumacy to the conduct
of the plaintiff-respondent. It was rather observed7
2025:UHC:5238that the plaintiff could have known the date of the
death of the first defendant only by the counter filed
to IA 265 of 1975. Normally, if he had known about
the date of death of the defendant, he would have
filed the suit in the first instance against his heirs
and legal representatives. The trial court has also
opined that the plaintiff was ignorant as to such
death and that is why he filed IA 265 of 1975 under
Order 22 Rule 4 of CPC. The High Court too has
recorded a finding that there was nothing to show
that the plaintiff was aware of the death of the first
defendant and yet knowing well about it, he would
persist in filing the suit against a dead person. In
conclusion, the learned Single Judge held that since
plaintiff-respondent had taken prompt action it
clearly showed that he had acted in good faith. Thus
the High Court made out a case for invoking the
proviso to sub-section (1) of Section 21 of the Act
in favour of the plaintiff-respondent. Sequelly, the
High Court found no difficulty in allowing IA 785 of
1975 permitting change of the provision
whereunder IA 265 of 1975 was filed and in
allowing IA 265 of 1975 ordering the suit against
the heirs and legal representatives of defendant 1
to be dating back to November 14, 1974, the date
on which the plaint was originally presented.”
13. In the present case also, plaintiff learnt about
death of the sole defendant only when the summons
returned unserved with the endorsement that the
defendant has died. Stand taken by plaintiff before Trial
Court was that he was not aware about death of the
sole defendant. Petitioner was not able to produce any
evidence to attribute knowledge, about death of his
mother, to the plaintiff. Thus, the inference drawn by
Trial Court that it was a bonafide mistake in good faith
cannot be faulted.
14. Even otherwise also, while exercising
supervisory power under Article 227 of the
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Constitution, this Court does not act as a Court of
Appeal. In the case of Garment Craft v. Prakash Chand
Goel, reported in (2022) SCC 181, Hon’ble Supreme
Court has enunciated the law on the point as under:-
“15. Having heard the counsel for the parties, we are
clearly of the view that the impugned order [Prakash
Chand Goel v. Garment Craft, 2019 SCC OnLine Del
11943] is contrary to law and cannot be sustained for
several reasons, but primarily for deviation from the
limited jurisdiction exercised by the High Court under
Article 227 of the Constitution of India. The High Court
exercising supervisory jurisdiction does not act as a
court of first appeal to reappreciate, reweigh the
evidence or facts upon which the determination under
challenge is based. Supervisory jurisdiction is not to
correct every error of fact or even a legal flaw when the
final finding is justified or can be supported. The High
Court is not to substitute its own decision on facts and
conclusion, for that of the inferior court or tribunal.
[Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar,
(2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The
jurisdiction exercised is in the nature of correctional
jurisdiction to set right grave dereliction of duty or
flagrant abuse, violation of fundamental principles of
law or justice. The power under Article 227 is exercised
sparingly in appropriate cases, like when there is no
evidence at all to justify, or the finding is so perverse
that no reasonable person can possibly come to such a
conclusion that the court or tribunal has come to. It is
axiomatic that such discretionary relief must be
exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article
227, this Court in Estralla Rubber v. Dass Estate (P)
Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8
SCC 97] has observed : (SCC pp. 101-102, para 6)
“6. The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of
power under this article involves a duty on the High
Court to keep inferior courts and tribunals within the
bounds of their authority and to see that they do the
duty expected or required of them in a legal manner.
The High Court is not vested with any unlimited
prerogative to correct all kinds of hardship or wrong
decisions made within the limits of the jurisdiction of
the subordinate courts or tribunals. Exercise of this
power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of
duty and flagrant violation of fundamental principles of
law or justice, where if the High Court does not
interfere, a grave injustice remains uncorrected. It is
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also well settled that the High Court while acting under
this Article cannot exercise its power as an appellate
court or substitute its own judgment in place of that of
the subordinate court to correct an error, which is not
apparent on the face of the record. The High Court can
set aside or ignore the findings of facts of an inferior
court or tribunal, if there is no evidence at all to justify
or the finding is so perverse, that no reasonable person
can possibly come to such a conclusion, which the court
or tribunal has come to.”
15. For the aforesaid reasons, any interference
with the orders passed by learned Trial Court would not
be warranted in the facts and circumstances of the
case.
16. The writ petitions thus fail and are dismissed.
No order as to costs.
________________________
MANOJ KUMAR TIWARI, J.
Dt: 20.06.2025
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Date: 2025.06.25 16:48:21 +05’30’
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