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Judgment
Rai Chattopadhyay, J. :-
This revision is directed against an order of the Civil Judge, Senior Division, 2nd Court at Contai, Purba Medinipur, dated October 29, 2025, in the Title Suit No. 16 of 2016. The present petitioners are the defendant Nos. 1, 2, 3 and 9 to 11 in the said suit. By dint of the said impugned order the Court has allowed the plaintiff’s prayer under Order I Rule 10 of the Code of Civil Procedure, allowing addition of the legal heirs of the deceased plaintiff No. 2, as the party defendants in the suit.
The petitioners’ grievance is that the said order amounts to be in gross violation of the law and settled principles under it, in so far as the same has an effect of non-suiting the present petitioners, who have filed counter-claims before the Trial Court, in the said suit. The petitioners’ grievance is that the said impugned order in effect nullifies their counter-claims, as a counter-claim would not be maintainable against the co-defendant, in accordance with law.
Hence, this revision.
Mr. Dash has appeared for the petitioners whereas Mr. Rejaul Alam, learned Senior Advocate has represented the plaintiff/opposite party No.8.
Mr. Dash learned advocate for the petitioners has submitted that the plaintiffs file the said suit seeking partition of the suit property by metes and bound. He submits that the defendants contest the said suit due to the reason that according to the defendants, the suit property is not a property under joint ownership, but belongs to the defendants by way of purchase, through a duly executed deed of conveyance.
Hence, the two sets of defendants have filed two different counter-claims in the suit before the Trial Court. The plaintiffs have also filed written statements with respect to the said two counter-claims, filed by the present petitioners/defendants, in the Trial Court.
At this stage the 2nd plaintiff died. The other plaintiffs therefore filed application under Order I Rule 10 of CPC, in order to add the legal heirs of the said deceased 2nd plaintiff, as party-defendant in the suit, who for some reason, did not come forward to be substituted in place of their predecessor/ 2nd plaintiff (now deceased), as substituted plaintiffs in the suit.
Mr. Dash’s first argument is with regard to defect in the plaintiff’s application under Order I Rule 10 CPC. He refers to a copy thereof annexed with the revisional application to submit that the plaintiff has failed to mention the date of death of the 2nd plaintiff, in the same. According to him, such omission has made the said prayer of the plaintiffs as vague and unsubstantiated.
Further, with reference to Order VIII Rule 6A of the CPC, he has submitted that it is the statutory right of the present petitioners/defendants, to file a counter-claim in any suit against them, which cannot be defeated barring in accordance with law. He says that it is the statutory provision and the law is well settled that a counter-claim is maintainable in a suit against the plaint and the same shall not be maintained against a co-defendant. According to him, it is only mala fide and motivated on part of the plaintiffs, that they intend to frustrate the counter-claims of the petitioners, by adding the legal heirs of the deceased 2nd plaintiff, as defendants in the suit.
He submits that specific statutory provisions govern as to what happens when a plaintiff dies. In this regard he has referred to provisions under Order XXII Rules 3 and 9 of the CPC. He submits that the statute has provided for substitution of the legal heirs of the deceased plaintiff in a suit or otherwise for abetment of the suit against that plaintiff or his legal heirs. According to him this is the only statutory and legal way to introduce legal heirs of deceased plaintiff in a suit, that is by way of substitution in place of their predecessor-in-interest. That, if the legal heirs cannot be introduced by way of substitution, in place of their deceased predecessor, there is no other way in accordance with the law to do the same. Hence, according to him the impugned order is misconceived and illegal.
Mr. Dash learned advocate for the petitioners has relied on a judgment of this Court in Eden Consultancy Services Private Limited versus Kerala State Electronics Development Corporation Limited and Others reported at 2026 (1) Indian Civil Cases (Cal), wherein the Court reiterates the well settled proposition of law that a counter-claim is not maintainable against the co-defendant.
Mr. Rejaul Alam, learned Senior Advocate has on the contrary supported the impugned order and stated that the same calls for no interference by this Court.
Having regard to the pleadings and the rival submissions as stated, this Court is of the considered view that the Trial Court fell into an error of law in invoking Order I Rule 10 of the Code, for bringing the legal heirs of the deceased 2nd plaintiff on record as party-defendants. The scheme of the Code makes a clear distinction between substitution of the legal representatives of a deceased party and addition of a person as a party in a pending suit. The former is specifically governed by Order XXII. In the case of a deceased plaintiff, Order XXII Rule 3 provides the statutory mechanism for bringing his legal representatives on record where the right to sue survives; and sub-rule (2) expressly contemplates abatement of the suit, so far as the deceased plaintiff is concerned, where no such application is made within the period prescribed by law. The statutory scheme thus contains a complete mechanism governing the consequence of death of a plaintiff and the manner in which his legal representatives may continue the proceeding.
The power under Order I Rule 10 of the CPC, which is intended to secure the presence of a person whose participation is necessary for effective and complete adjudication of the controversy, cannot ordinarily be employed as a substitute for the specific machanism of substitution prescribed under Order XXII. The two provisions operate in different fields and upon different juridical situations. The Supreme Court has repeatedly cautioned that a specific statutory procedure governing substitution cannot be circumvented by resort to a general provision relating to impleadment. The present case, therefore, has to be examined primarily within the framework of Order XXII Rules 3 and 9 of CPC, and not by treating Order I Rule 10 of the Code as an alternative route for introducing the heirs of the deceased plaintiff into the suit.
The record itself discloses that, after the death of the 2nd plaintiff, his legal heirs did not come forward to be substituted in his place as plaintiffs. The distinction assumes still greater significance in the peculiar factual setting of the present case. The legal heirs of the deceased 2nd plaintiff are not persons whose presence is shown to be indispensable merely because they happen to succeed to the estate of the deceased. The law itself recognises the consequence where the legal representatives do not seek substitution: the proceeding may abate, so far as the deceased plaintiff is concerned, subject of course to the statutory provisions governing setting aside of abatement. The Court cannot, by invoking Order I Rule 10 of CPC, convert persons who have declined to continue the proceeding in the capacity of plaintiffs, into defendants against whom the contesting defendants are thereafter compelled to litigate. Such an approach would effectively permit the general power of impleadment to override the structured and well defined provisions of Order XXII of CPC. The principle that procedural provisions must be construed harmoniously and that a general procedural power cannot be utilised to defeat or circumvent a specific statutory mechanism are too well settled and of particular relevance in this case.
In the present suit, the petitioners/defendants have already filed their respective counter-claims and the plaintiffs have filed written statements in answer thereto. The counter-claims thus constitute an integral part of the adjudicatory field of the suit. Order VIII Rule 6A of the CPC permits a defendant to set up, by way of counter-claim, a claim against the plaintiff in respect of a cause of action accruing to the defendant. The Supreme Court in Rohit Singh v. State of Bihar reported in (2006) 12 SCC 734, authoritatively held that although a counter-claim may be founded upon a cause of action different from that of the original suit, it must necessarily be directed against the plaintiff; a counter-claim directed solely against a co-defendant is not maintainable. The principle has not merely survived but has been emphatically reiterated by the Supreme Court in Rajul Manoj Shah alias Rajeshwari Rasiklal Sheth v. Kiranbhai Shakrabhai Patel, at 2025 INSC 1109, and again in Sanjay Tiwari v. Yugal Kishore Prasad Sao, at 2025 INSC 1310, where the Supreme Court held that a counter-claim under Order VIII Rule 6A CPC cannot be converted into a claim exclusively against a co-defendant and that such a counter-claim cannot survive.
The aforesaid principle has a direct bearing upon the impugned order in this case. If the legal heirs of the deceased 2nd plaintiff are converted into party-defendants merely because they are the heirs of the deceased plaintiff, the defendants' existing counter-claims would, to that extent, be deprived of their statutory foundation, since the persons against whom the counter-claims are intended to operate would cease to occupy the position of plaintiffs and would become co-defendants. The consequence would not be a mere alteration in the nomenclature of parties; it would materially and in all likelihood, prejudicially affect a substantive procedural right already exercised by the petitioners under Order VIII Rule 6A of the CPC. The Court cannot adopt an interpretation of Order I Rule 10 of the Code which, as an incidental consequence, destroys or renders infructuous a right which the Code itself confers upon a defendant. The procedural law is not intended to operate in such a manner that one provision is invoked to nullify the substantive procedural consequences flowing from another.
The recent judgment of the Supreme Court in Sanjay Tiwari versus Yugal Kishore Prasad Sao & others reported at 2025 INSC 1310, is particularly instructive in this regard. There, the Supreme Court rejected the reasoning that impleadment of additional defendants and permitting a counter-claim against a co-defendant could be justified on the ground of avoiding multiplicity of proceedings. The Court reaffirmed that the statutory scheme of Order VIII Rule 6A CPC cannot be enlarged by judicial ingenuity so as to permit a counter-claim against a co-defendant. The same doctrinal discipline must operate in the present case in the reverse situation: that Order I Rule 10 of the CPC cannot be employed in a manner which changes the status of a person from plaintiff to co-defendant and thereby defeats a counter-claim which is otherwise directed against the plaintiff. Procedural convenience or an apprehension of multiplicity of proceedings cannot furnish a justification for defeating an express statutory scheme.
The expression “necessary party” has a specific legal meaning. A person is not to be impleaded as a necessary party merely because he or she may have some interest in the subject matter. The necessity must arise from the requirement of an effective and complete adjudication of the controversy in the suit. Here, the Code itself supplies the consequence where the legal representatives of a deceased plaintiff do not seek substitution. If they are uninterested in prosecuting the claim of their deceased predecessor and the law permits the suit to abate so far as that plaintiff is concerned, their presence as defendants cannot be treated as imperative merely to ensure that every person having a possible interest in the estate, is physically before the Court. The jurisdiction under Order I Rule 10 CPC is discretionary and procedural; it cannot be exercised mechanically or merely because the proposed parties are legal heirs.
The principle underlying Order I Rule 10 of CPC is effective adjudication, not compulsory enlargement of the array of parties at the expense of an existing statutory right. The Court must therefore examine not merely whether the proposed party has some conceivable interest in the subject matter, but whether his presence is indispensable for granting an effective and complete adjudication of the dispute actually brought before the Court. In the present case, that test is not satisfied in the manner contemplated by the impugned order. The legal heirs did not seek to continue the deceased plaintiff's cause in accordance with Order XXII; the surviving plaintiffs sought to introduce them as defendants; and, more importantly, such conversion would directly prejudice the counter-claims already instituted by the contesting defendants. The circumstances therefore do not justify exercise of the discretionary power under Order I Rule 10 of the Code.
The error committed by the Trial Court is thus not merely one of procedural form. The Court has misconstrued the relationship between Order XXII and Order I Rule 10 of the Code and has failed to appreciate the legal consequences of converting the legal representatives of a deceased plaintiff into co-defendants in a suit, in which counter-claims have already been filed against the plaintiff. The statutory mechanism of substitution cannot be displaced by resort to Order I Rule 10 of the Code; the consequence of non-substitution, where applicable, is governed by Order XXII of CPC; and the status of the parties cannot be altered in a manner which defeats the operation of Order VIII Rule 6A of CPC. The impugned order, if permitted to stand, would produce precisely such a consequence and would effectively defeat the petitioners' counter-claims by a procedural device, which the Code does not contemplate. The Supreme Court’s judgments in Rajul Manoj Shah (supra), Sanjay Tiwari (supra) and Rohit Singh (supra) are decisive and authoritative, in this aspect.
In such circumstances, the finding of the Trial Court that the legal heirs of the deceased 2nd plaintiff ought to be added as party-defendants under Order I Rule 10 CPC cannot be sustained. The impugned order, to the extent it allows the application under Order I Rule 10 of the Code and directs addition of the legal heirs of deceased 2nd plaintiff, as party-defendants, has been rendered upon an erroneous construction and application of the relevant provisions of the Code and has occasioned serious prejudice to the petitioners in respect of their pending counter-claims. The said portion of the order, therefore, calls for interference in exercise of the revisional jurisdiction of this Court.
Accordingly, the revisional application succeeds. The portion of the impugned order dated October 29, 2025, passed by the Civil Judge, Senior Division, 2nd Court at Contai, in Title Suit No. 16 of 2016, whereby the application under Order I Rule 10 of the Code has been allowed and the legal heirs of deceased 2nd plaintiff have been directed to be added as party-defendants, is hereby set aside. The Trial Court shall proceed with the suit in accordance with law, bearing in mind the statutory consequences flowing from Order XXII of CPC and without permitting the array of parties to be altered in a manner inconsistent with the petitioners' rights in their pending counter-claims.
The instant revision No. CO 4187 of 2025 is allowed and disposed of.
Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.