PANKAJBHAI RAMESHBHAI ZALAVADIYA versus JETHABHAI KALABHAI ZALAVADIYA (DECEASED)

Citation: [2017] 12 S.C.R. 1028 · Decided: 03-10-2017 · Supreme Court of India · Bench: ARUN MISHRA · Disposal: Appeal(s) allowed
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[2017] 12 S.C.R. 1028 
PANKAJBHAI RAMESHBHAI ZALAVADIYA 
v. 
JETHABHAI KALABHAI ZALAVADIYA (DECEASED) 
THROUGH LRS & ORS. 
(Civil Appeal No. 15549 of2017) 
OCTOBER 03, 2017 
[ARUN MISHRA AND 
MOHAN M. SHANTANAGOUDAR, JJ.] 
Code of Civil Procedure, 1908 - Or.l,r.10, 01:XXJI, r.4 and 
Or. VII, r.6 and s.151 - Applications filed under - Suit seeking 
· cancellation of sale deed - Application filed by the plaintiff to bring 
the legal representatives of the deceased-defendant no. 7 un record 
u/Or.XXIJ, 1:4 of CPC was dismissed as not maintainable- Thereafter, 
the appellant-plaintiff filed an application for impleading the legal 
D representatives of deceased-defendant no.7 on record, 11/0r.I, r.10 
of CPC, the same was alw dismissed by the trial Court - Dismissal 
confirmed by the High Court - On appeal, held: In a suit seeking 
cancellation of sale deed, a person who has purchased the property 
and whose rights are likely to be affected pursuant to the judgment 
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in the suit is a necessary party, and he has to be added - If such 
purchaser has expired, his legal representatives are necessary 
parties - In instant case, since the purchaser of the suit proper(v, 
i.e., defendant no. 7 has expired prior to the ft!ing of the suit, his 
legal representatives ought to have been arrayed as parties in the 
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suit while presenting the plaint -As such impleadment was not made 
at the time of filing of the plaint as the plaintiff did not know about 
. the death of the purchaser, he cannot be non-suited mere£v because 
of his ignorance of the said fact - Legal representatives of the 
purchaser of the suit property are necessary parties, they have to 
be impleaded u/Or. I, r. JO of CPC - There is no bar for filing the 
G application 11101:1, r.10 even when the application u!01:XXll, r.4 of 
CPC was dismissed as not maintainable under the facts of the case 
- Legal heirs of the deceased per"on in such a matter can be added 
in the array of parties u/Or.l,r.10 of CPC r/w. s.151 of CPC su~ject 
to the plea of limiiation as contemplated u/Or. VII, 1: 6 of CPC and 
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1028 
PANKAJBHAI RAMESHBHAJ ZALAVADIYAv. JETHABHAI KALABHAI 
1029 
ZALAVADIYA(D) THR. LRS 
s.21 of the Limitation Act, to .be decided during the course of trial -
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Necessary party - Limitation Act, 1963 - s.21 
Administration of Justice - Technical rules or procedures not 
to be given precedence over justice - Held: In instant case, when 
the trial court had dismissed 1he application u/Or.XX/l, 1:4 of CPC 
as not maintainable at an earlier point of time, the trial Court at B 
1hat point of time itself could have treated the said application filed 
u/Or. XX//, r. 4 ofCPC as one filed u/01: /, r.10 of CPC, in order to 
do justice between the parties - Merely because of the non-
mentioning of the correct provision as Or.I, t:JO of CPC at the initial 
stage by the advocate for the plaintiff. the parties should not be 
made to suffer - Mere wrong mention of the provision in the 
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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 - Code of Civil 
Procedure, 1908 - 01:L r.10 and Or.XXIL r.4. 
Allowing the appeal, the Court 
HELD: Whether the legal representatives of one of the 
defendants can be implcaded under Order 1 Ruic 10 of the Code 
where such defendant expired prior to the filing of the sui!. 
particularly when the application filed by the plaintiff to bring the 
legal representatives of the deceased on record under Order 22 
Ruic 4 of the Code was dismissed earlier as not maintainable. 
1.1 In the matter on hand, though the trial court had rightly 
dismissed the application under Order 22 Ruic 4 of the Code as 
not maintainable at an earlier point of time, it needs to be 
mentioned that the trial Court at that point of time itself could 
have treated the said application tiled under Order 22 Rule. 4 of 
the Code as one filed under Order 1 Rule 10 of the 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 clecicle 
the
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