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Judgment
V.K. Jhanji, J.—The present revision petition has been preferred by the plaintiff against the order dated 2321991 of the trial court,
dismissing its application under Order 1, rule 10, Civil Procedure Code, for adding respondents No. 1 and 2 as defendants to the suit.
Briefly the facts are that the plaintiff filed a suit for recovery of Rs. 2,225.20 against Suresh Chand and Shiv Charan, defendants No. 1 and 2
respectively. Summonses were sent to both the defendants for service. Suresh Chand, defendant No. 1 was served, but despite service, he did not
appear and the trial Court, vide order dated 2851990 proceeded against him exparte. However, summons sent to Shiv Charan, defendant No. 2,
were received back with the report that he had already expired. The trial court directed the plaintiff to file a list of legal representative of Shiv
Charan, deceased, but plaintiff failed to file an application even after availing 2 opportunities for the said purpose. Vide order dated 11591990, suit
against Shiv Charan, deceased, was dismissed as the plaintiff had failed to file the list of legal representatives within a statutory period of 90 days.
Thereafter, the plaintiff filed an application under Order 1, rule 10, Civil Procedure Code, for impleading respondents No. 1 and 2 as defendants
to the suit on the ground that, Shiv Charan deceased, left behind his wife Smt. Maya Devi and one Sh. Rajesh, as his heirs and they be allowed to
be impleaded as defendants. The trial Court vide the impugned order, dated 2321991 dismissed the said application. The plaintiff has impugned
the said order, dated 2311991 of the learned trial Court by way of present revision petition.
The only contention of the learned counsel for the petitioner is that though the plaintiff failed to bring on record the legal representatives of the
deceased within the period of limitation, but still the legal representatives can be brought on record under the provisions of Order 1, rule 10, Civil
Procedure Code. His precise submission, is that the inaction on the part of a plaintiff to bring, on record a person as defendant, cannot affect the
right of the Court to implead him as a party in the suit in exercise of its jurisdiction under Order 1, rule 10(2), Civil Procedure Code.
It is apparent from the abovementioned facts that the court declined to bring on record the legal representatives of the deceased Shiv Charan,
on an application filed by the plaintiff under Order 1, rule 10(2), Civil Procedure Code which is as follows :
(2). The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the
court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and the name of any person
who ought to have joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the Court
effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
A persual of above rule would show that the power under this provision is confided to two kinds of cases, firstly, when a party who ought to
have joined, but not joined and is a necessary party and secondly, without presence of such party, the question involved in the suit cannot be
completely decided. However, this is not the position in present case. Admittedly, the plaintiff failed to bring on record the legal representatives
within the period allowed under the law, and the suit was dismissed by the learned trial Court vide order, dated 1591990, against Shiv Charan,
deceased.
The plaintiff could have resorted only to Order 22, rule 4, Civil Procedure Code, for bringing on record the legal representatives, but he having
not filed the application within the period of Limitation, cannot be allowed to bring on record the legal representatives under the provisions of
Order 1, rule 10, Civil Procedure Code. Order 22, rule 4, Civil Procedure Code, is a specific provision, whereas Order 1, rule 10, Civil
Procedure Code, is a general provision. When the plaintiff is not entitled to invoke the specific provision or after invoking the same, having failed in
it, the same party cannot be allowed to invoke the general provision to get the same order for which an application under the specific provision was
not filed within the period of limitation or filed but declined by the court. If the plaintiff is allowed to bring on record the legal representatives under
the provisions of Order 1, rule 10, Civil Procedure Code, it would enable the plaintiff to circumvent the order which was passed by the learned
trial court on 1591990, dismissing the suit against deceased, Shiv Charan. The only remedy open to the plaintiff was either to file an appeal or
revision against the order whereby the trial court had dismissed the suit of the plaintiff against Shiv Charan, deceased, defendant No. 2 for the
reasons that on the summons it was reported that he had already expired.
Consequently, I find no merit in the revision petition and the same is hereby dismissed. However, the parties are left to bear their own costs.