I n t he case of Pankaj bhai Ram eshbhai Zalavadiya v. Jet habhai Kalabhai Zalavadiya Deceased) t hrough Legal Represent at ives and ot

direct ed for issuance of sum m ons t o t he defendant , fixing 14.10.2020. The sum m on, however, ret urned unserved wit h t he rem ark t hat ‘defendant is no m ore alive’.

3. The plaint iff ( respondent herein) t hen m oved applicat ion under Order 22 Rule 2 & 4 read wit h Order 6 Rule 17 and Sect ion 151 CPC, for subst it ut ing legal represent at ive of sole defendant . Not ice on t he applicat ion was issued t o legal represent at ive of lat e Mit hilesh Madhukar, who was proposed t o be subst it ut ed.

4. Despit e service of not ice, legal represent at ive of lat e Mit hilesh Madhukar did not ent er appearance. Learned Trial Court allowed t he subst it ut ion applicat ion, vide order dat ed 18.11.2021 and t he plaint iff was direct ed t o carry out necessary am endm ent in t he plaint wit hin t hree days and sum m ons were direct ed t o be issued t o t he subst it ut ed defendant ( pet it ioner) . 2

5. Pet it ioner ent ered appearance and m oved applicat ion under Sect ion 151 CPC for dism issal of suit on t he ground t hat it was filed against a dead person, inasm uch as, t he sole defendant Sm t . Mit hilesh Madhukar passed away before filing t he suit , on

25.08.2020.

6. Plaint iff cont ended before t he Trial Court t hat he had no inform at ion regarding deat h of Sm t . Mit hilesh Madhukar ( defendant ) , and as soon as he learnt about her deat h, he m oved applicat ion subst it ut ing legal represent at ive of sole defendant ; it was t he pet it ioner who execut ed t he agreem ent t o sell in favour of t he plaint iff, as power of at t orney holder of his m ot her.

7. Learned Trial Court rej ect ed t he applicat ion for dism issal of t he suit m ade by pet it ioner by holding t hat t here is no evidence on record t o show t hat plaint iff had knowledge about deat h of sole defendant before filing of t he suit .

8. Pet it ioner has challenged t he orders passed by Trial Court , whereby subst it ut ion applicat ion was allowed and his applicat ion for dism issal of t he suit was rej ect ed. 3

9. Learned counsel for pet it ioner subm it s t hat t he applicat ion m ade by respondent under Order 22 Rule 2 & 4 CPC was not m aint ainable, as t he sole defendant had died before filing of t he suit , t hus, learned Trial Court was not j ust ified rej ect ing pet it ioner ’s applicat ion for dism issal of t he suit , vide order dat ed 12.07.2022.

10. There cannot be any quarrel wit h t he proposit ion t hat if one of t he defendant s has expired prior t o filing of t he suit , legal represent at ives of such deceased defendant cannot be brought on record by invoking Order 22 Rule 4 CPC. However, due t o non- m ent ioning of correct provision, part ies should not be m ade t o suffer, if power t o add legal represent at ives of a deceased defendant can be t raced t o som e ot her provision in CPC.

11. I n t he case of Pankaj bhai Ram eshbhai Zalavadiya v. Jet habhai Kalabhai Zalavadiya ( Deceased) t hrough Legal Represent at ives and ot hers, ( 2017) 9 SCC 700, Apex Court was dealing wit h a case where defendant t o t he suit had died prior t o filing of t he suit . Paragraph nos. 16, 17, 18, 19 & 20 of t he said j udgm ent are ext ract ed below: - 4 “ 1 6 . I n t he m at t er on hand, t hough t he t rial court had right ly dism issed t he applicat ion under Order 22 Rule 4 of t he Code as not m aint ainable at an earlier point of t im e, in our considered opinion, it needs t o be m ent ioned t hat t he t rial court at t hat point of t im e it self could have t reat ed t he said applicat ion filed under Order 22 Rule 4 of t he Code as one filed under Order 1 Rule 10 CPC, in order t o do j ust ice bet ween t he part ies. Merely because of t he correct provision as t he non- m ent ioning of Order 1 Rule 10 of t he Code at t he init ial st age by t he advocat e for t he plaint iff, t he part ies should not be m ade t o suffer. I t is by now well set t led t hat a t he t he provision m ere wrong m ent ion of applicat ion would not prohibit a part y t he lit igat ion from get t ing j ust ice. Ult im at ely, t he court s are m eant t o do j ust ice and not t o decide t he applicat ions based on t echnicalit ies. The provision under Order 1 Rule 10 CPC speaks about j udicial discret ion of t he Court t o st rike out or add par t ies at any st age of t he suit . I t can st rike out any part y who is im properly j oined, it can add anyone as a plaint iff or defendant if it finds t hat such person is a necessary or proper part y. The Court under Order 1 Rule 10( 2) of t he Code will of course act according t o reason and fair play and not according t o whim s and caprice. t o fram ing 1 7 . The expression t his rule m ust be held “ t o set t le all quest ions involved” used in Order 1 Rule 10( 2) of t he Code is suscept ive t o a liber al and wide int erpret at ion, so as t o adj udicat e all t he quest ions pert aining t o t he subj ect - m at t er t hereof. Parliam ent in it s wisdom t o have t hought t hat all m at erial quest ions com m on t o t he part ies t o t he suit and t o t he t hird part ies should be t ried once for all. The Court is clot hed wit h t he power t o secure t he aforesaid result wit h j udicious discret ion t o add part ies, including t hird par t ies. t he part y There cannot be any disput e im pleaded m ust have a direct t he I n a suit seeking lit igat ion. subj ect - m at t er of cancellat ion of sale deed, as m ent ioned supra, a person who has purchased t he propert y and whose right s are likely t o be affect ed pursuant t o t he j udgm ent in t he suit is a necessary part y, and he has t o be added. I f such purchaser has expired, his legal represent at ives are necessary part ies. t hat int erest t o t he filing of 1 8 . I n t he m at t er on hand, since t he purchaser of t he suit propert y i.e. Defendant 7 has expired represent at ives ought t o have been arrayed as part ies in t he suit while present ing t he plaint . As such im pleadm ent was not m ade at t he t im e of filing of t he plaint in v iew of t he fact t hat t he t he plaint iff did not k now about t he deat h of suit , his t he 5 t he part ies purchaser, he cannot be non- suit ed m erely because of his ignorance of t he said fact . To do j ust ice bet ween t he suit represent at ives of propert y are necessary part ies, t hey have t o be im pleaded under Order 1 Rule 10 of t he Code, inasm uch as t he applicat ion under Order 22 Rule 4 of t he Code was not m aint ainable. t he purchaser of t he t he t hat t he suit im pleading im pedim ent t he pendency of 1 9 . As m ent ioned supra, it is only if a defendant t he dies during provisions of Order 22 Rule 4 of t he Code can be invoked. Since one of t he defendant s i.e. Defendant 7 has expired prior t o t he filing of t he suit , t here is represent at ives of t he deceased Defendant 7 under Order 1 Rule 10 of t he Code, for t he sim ple reason t hat t he plaint iff in any case could have inst it ut ed a fresh suit against t hese legal represent at ives on t he dat e he m oved an applicat ion for m aking t hem part ies, subj ect of course t o t he law of lim it at ion. Norm ally, if t he plaint iff had known about t he deat h of one of t he defendant s at t he t im e of inst it ut ion of t he suit , he would have filed a suit in t he first inst ance against his heirs or legal represent at ives. The difficult y t hat t he High Court experienced in grant ing t he applicat ion filed by t he plaint iff under Order 1 Rule 10 of t he Code discloses, wit h great respect , a hypert echnical approach which m ay result in t he m iscarriage of j ust ice. As t he heirs of t he deceased Defendant 7 were t he persons wit h vit al int erest in t he out com e of t he suit , such applicat ions have t o be approached keeping in m ind t hat t he court s are m eant t o do subst ant ial j ust ice bet ween t he part ies and t hat t echnical rules or procedures should not be given precedence over j ust ice. Undoubt edly, doing subst ant ial j ust ice law does not m erely m ean according t he t o be t echnical adm inist ered t o adv ance j ust ice. j ust ice but m eans t hat t o 2 0 . Having regard t o t he t ot alit y of t he narrat ion m ade supra, t here is no bar for filing t he applicat ion under Order 1 Rule 10, even when t he applicat ion under Order 22 Rule 4 of t he Code was dism issed as not m aint ainable under t he fact s of t he case. The legal heirs of t he deceased person in such a m at t er can be added in t he array of part ies under Order 1 Rule 10 of t he Code read wit h Sect ion 151 of t he lim it at ion as Code subj ect cont em plat ed under Order 7 Rule 6 of t he Code and Sect ion 21 of t he Lim it at ion Act , t o be decided during t he course of t rial.” t he plea of t o 6

12. Sim ilarly, in t he case of Karuppaswam y and ot hers v. C. Ram am urt hy, ( 1993) 4 SCC 41, Hon’ble Suprem e Court while dealing wit h a sim ilar quest ion, held t hat benefit of proviso t o Sect ion 21( 1) of t he Lim it at ion Act , 1963 can be given, if t he Court is sat isfied t hat t he m ist ake of im pleading a dead defendant in t he suit , was com m it t ed in good fait h and upheld t he view t aken by High Court . Paragraph Nos. 4 & 5 of t he said j udgm ent are ext ract ed below: - “ 4 . A com parat ive reading of t he proviso t o sub- sect ion ( 1) shows t hat it s addit ion has m ade all t he difference. I t is also clear t hat t he proviso has appeared t o perm it correct ion of errors which have been com m it t ed due t o a m ist ake m ade in good fait h but only when t he court perm it s correct ion of such m ist ake. I n t hat event it s effect is not t o begin from t he dat e on which t he applicat ion for t he purpose was m ade, or from t he dat e of perm ission but from t he dat e of t he suit , deem ing it t o have been correct ly inst it ut ed on an earlier dat e t han t he dat e of m aking t he applicat ion. The proviso t o sub- sect ion ( 1) of Sect ion 21 of t he Act is obviously in line wit h t he spirit and t hought of som e ot her provisions in Part I I I of t he Act such as Sect ion 14 providing exclusion of t im e of proceeding bona fide in court wit hout j urisdict ion, w hen com put ing t he period of lim it at ion for any suit , and Sect ion 17( 1) providing a different period of lim it at ion st art ing when discovering a fraud or m ist ake inst ead of t he com m ission of fraud or m ist ake. While invoking t he beneficient proviso t o sub- sect ion ( 1) of Sect ion 21 of t he Act an averm ent t hat a m ist ake was m ade in good fait h by im pleading a dead defendant in t he suit should be m ade and t he court m ust on proof be sat isfied defendant by subst it ut ion or addit ion was j ust and proper, t he m ist ake having occurred in good fait h. The court 's sat isfact ion alone breat hes life in t he suit . t he m ot ion include t hat t he t o 5 . I t is not ewort hy t hat t he t rial court did not at t ribut e any neglect or cont um acy t o t he conduct of t he plaint iff- respondent . I t was rat her observed 7 t hat t he plaint iff could have known t he dat e of t he deat h of t he first defendant only by t he count er filed t o I A 265 of 1975. Norm ally, if he had known about t he dat e of deat h of t he defendant , he would have filed t he suit in t he first inst ance against his heirs and legal represent at ives. The t rial court has also opined t hat t he plaint iff was ignorant as t o such deat h and t hat is why he filed I A 265 of 1975 under Order 22 Rule 4 of CPC. The High Court t oo has recorded a finding t hat t here was not hing t o show t hat t he plaint iff was aware of t he deat h of t he first defendant and yet knowing well about it , he would persist in filing t he suit against a dead person. I n conclusion, t he learned Single Judge held t hat since plaint iff- respondent had clearly showed t hat he had act ed in good fait h. Thus t he High Court m ade out a case for invoking t he proviso t o sub- sect ion ( 1) of Sect ion 21 of t he Act in favour of t he plaint iff- respondent . Sequelly , t he High Court found no difficult y in allowing I A 785 of provision change 1975 whereunder I A 265 of 1975 was allowing I A 265 of 1975 ordering t he suit against t he heirs and legal represent at ives of defendant 1 t o be dat ing back t o Novem ber 14, 1974, t he dat e on which t he plaint was originally present ed.” t aken prom pt act ion perm it t ing filed and t he

13. I n t he present case also, plaint iff learnt about deat h of t he sole defendant only when t he sum m ons ret urned unserved wit h t he endorsem ent t hat t he defendant has died. St and t aken by plaint iff before Trial Court was t hat he was not aware about deat h of t he sole defendant . Pet it ioner was not able t o produce any evidence t o at t ribut e knowledge, about deat h of his m ot her, t o t he plaint iff. Thus, t he inference drawn by Trial Court t hat it was a bonafide m ist ake in good fait h cannot be fault ed.

14. Even ot herwise also, while exercising supervisory under Art icle 227 t he 8 Const it ut ion, t his Court does not act as a Court of Appeal. I n t he case of Garm ent Craft v. Prakash Chand Goel, report ed in ( 2022) SCC 181, Hon’ble Suprem e Court has enunciat ed t he law on t he point as under: - first appeal t o reappreciat e, reweigh “1 5 . Having heard t he counsel for t he part ies, we are clear ly of t he view t hat t he im pugned order [ Prakash Chand Goel v. Garm ent Craft , 2019 SCC OnLine Del 11943] is cont rary t o law and cannot be sust ained for several reasons, but prim ar ily for deviat ion from t he lim it ed j urisdict ion exercised by t he High Court under Art icle 227 of t he Const it ut ion of I ndia. The High Court exercising supervisory j urisdict ion does not act as a t he court of evidence or fact s upon which t he det erm inat ion under challenge is based. Supervisory j urisdict ion is not t o correct every error of fact or even a legal flaw when t he final finding is j ust ified or can be support ed. The High Court is not t o subst it ut e it s own decision on fact s and conclusion, for t hat of t he infer ior court or t r ibunal. [ Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, ( 2010) 1 SCC 217 : ( 2010) 1 SCC ( Civ) 69] The j urisdict ion exercised is in t he nat ure of correct ional j urisdict ion t o set right grave derelict ion of dut y or flagrant abuse, violat ion of fundam ent al principles of law or j ust ice. The power under Art icle 227 is exercised sparingly in appropr iat e cases, like when t here is no evidence at all t o j ust ify, or t he finding is so perverse t hat no reasonable person can possibly com e t o such a conclusion t hat t he court or t r ibunal has com e t o. I t is axiom at ic relief m ust be exercised t o ensure t here is no m iscarr iage of j ust ice. t hat such discret ionary 1 6 . Explaining t he scope of j urisdict ion under Art icle 227, t his Court in Est ralla Rubber v. Dass Est at e ( P) Lt d. [ Est ralla Rubber v. Dass Est at e ( P) Lt d., ( 2001) 8 SCC 97] has observed : ( SCC pp. 101- 102, para 6) “ 6. The scope and am bit of exercise of power and j urisdict ion by a High Court under Art icle 227 of t he Const it ut ion of I ndia is exam ined and explained in a num ber of decisions of t his Court . The exercise of power under t his art icle involves a dut y on t he High Court t o keep inferior court s and t ribunals wit hin t he bounds of t heir aut horit y and t o see t hat t hey do t he dut y expect ed or required of t hem in a legal m anner . is not vest ed w it h any unlim it ed The High Court prerogat ive t o correct all kinds of hardship or wrong decisions m ade w it hin t he lim it s of t he j urisdict ion of t he subordinat e court s or t ribunals. Exer cise of t his power and int erfer ing w it h t he orders of t he court s or t ribunals is rest r ict ed t o cases of serious derelict ion of dut y and flagr ant violat ion of fundam ent al principles of law or t he High Court does not int erfere, a grave inj ust ice rem ains uncorrect ed. I t is j ust ice, where 9 also well set t led t hat t he High Court while act ing under t his Art icle cannot exercise it s power as an appellat e court or subst it ut e it s own j udgm ent in place of t hat of t he subordinat e court t o correct an error, which is not apparent on t he face of t he record. The High Court can set aside or ignore t he findings of fact s of an infer ior court or t ribunal, if t here is no evidence at all t o j ust ify or t he finding is so perverse, t hat no reasonable person can possibly com e t o such a conclusion, which t he court or t ribunal has com e t o.”

15. For t he aforesaid reasons, any int erference wit h t he orders passed by learned Trial Court would not be warrant ed in t he fact s and circum st ances of t he case.

16. The writ pet it ions t hus fail and are dism issed. No order as t o cost s. ________________________ M A N OJ K UM A R TI W A RI , J. Dt : 20.06.2025 Navin NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487 df006da82a131bb4e4403d3c0a15, postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819DA 875643AF56D653D095C6ED9A86DAAB21CE5, cn=NAVEEN CHANDRA 10