APPLICATION UNDER ORDER 22, RULE 3, C. P. C.
APPLICATION FOR SUBSTITUTION OF THE NAMES OF LEGATEES
IN THE COURT OF
THE....................
Misc. Application No.....................
of 19....................
in
C.
D................................................................ Applicant
in
case C.
D................................................................... Plaintiff
versus
F. F................................................................
Defendant
In the matter of application for substitution of names of
legatees.
Sir,
In the abovenoted case it is respectfully submitted as
under:
1. That
the plaintiff.................... died on....................
2. That
the plaintiff made a will in which she has nominated the applicant
and.................... as the executors.
3. That
in the interest of justice it is essential that this Honourable Court be
pleased to deletion of the name of.................... permitting substitution
of the names of the legatees under the will in her place and making of the
necessary consequential amendments in the plaint as detailed below:
PRAYER
It is, therefore, respectfully prayed that this Hon’ble
Court may be pleased to permit the applicant and.................... to be
substituted in place of.................... after deleting her name and the
applicant be permitted to make the amendment in the plaint:
(a)
That in the title of the plaint the name of the
deceased plaintiff .................... be ordered to be deleted and in her
place the names of the following be permitted to be substituted:
1/1.................... son of....................
resident of....................
1/2.................... son of....................
resident of
(b)
That in line 1 of para No. 1 of the plaint the
words deceased plaintiff was " be permitted to be substituted in place of
the words "plaintiff is" and in line 4 the word "deceased"
be permitted to be added before the word
"plaintiff.
(c)
That in para 2 in lines 2, 3 and 4 the word
"deceased" be permitted to be added wherever the word "plaintiff
occurs and in line 2 the "abuses" be allowed to be substituted by the
word "abused" and in line 5 the word "is" be permitted to
be substituted by the word "was".
(d)
That in line 2 of para 4, in the lines 2 and 4
of para 5, in line 1 of para 6 the word "deceased" be permitted to be
added before the word "plaintiff, and in line 1 of para 6 the word
"is", be permitted to be substituted by the word "was".
(e)
That after para 6 of the plaint a new para
marked as "6A" be permitted to be added as follows:
"6A. That the substituted persons viz.,
Shri..................... and ............ are the legatees of the property of
the deceased plaintiff under the will dated............ made by the deceased
plaintiff and they are entitled to continue this suit for ejectment of the
defendant from the property in suit and recovery of arrears of rent and mesne
profits because the right of the deceased plaintiff survives.’’
(f)
That in the verification clause in second line
the words "part of be permitted to be added after figure "6" and
before the word "are" and in line 4 the words "part of 6A"
be permitted to be added in between figures "6" and "7".
It is accordingly prayed.
Applicant
VERIFICATION
[CD2]
Verified that the contents of this application are true to
my personal knowledge.
Verified and signed on this.................... day
of.................... 19.................... at.....................
Applicant
Through
Advocate
Dated:....................
case law
Order 22 Rule 3
WHEN REFUSING SUBSTITUTION NOT PROPER
Where the delay in making substitution application was of
few days only and there was satisfactory explanation for delay in seeking
substitution, the High
Court was held to be in error in refusing substitution in
the second appeal before it’.
WHO MAY FILE APPLICATION UNDER THIS RULE.
The words employed in this Rule, namely "on an
application made in this behalf " clearly point out that any person may
file such an application. Thus a person who purports to be a legal
representative of the deceased plaintiff or appellant may file an application
for bringing on record the legal representatives of the deceased plaintiff or
appellant, although he may be found not to be real legal representatives of the
deceased plaintiff, and even then the names of the real representatives of
deceased plaintiff may be brought on record if their names have been brought to
the notice of the court2.
CONSENT DECREE BASED ON ONE VIEW OUT OF TWO POSSIBLE VIEWS NOT LIABLE
TO CHALLENGE.
Where a compromise decree was passed in appeal, the deed
creating religious trust could be constructed to have two views but the
compromise was based on one view, it could not be challenged in the subsequent
suit on the ground of collusion and fraud3.
CONTINUITY OF SUIT ON BASIS OF ORIGINAL SUIT.
When during the pendency of a suit the plaintiff dies, and
his legal heirs are substituted, they are entitled to continue the suit on the
basis of the claim laid by the original plaintiff. They are not entitled to
claim independent title of theirs contrary to what has been claimed in the suit4.
DISMISSAL OF APPLICATION UNDER THIS RULE ON GROUND OF INSUFFICIENT
STAMP ON GENERAL POWER OF ATTORNEY — WHETHER JUSTIFIED? — (NO)
Wherein an arbitration proceeding, an application of legal
representatives of a deceased party was dismissed on the ground of insufficient
stamps on the deed. Held that the document ought to have been admitted in
evidence on payment of stamp duty and penalty. The dismissal of the application
was unjustified5.
APPLICABILITY OF THE RULE TO WRIT PETITIONS.
Though the elaborate and technical rules of the Code may
not apply to applications under Article 226 of the Constitution of India, on
the strength of section 141 of the Code yet the principles in general as laid
down in the Code would be applicable on the grounds of justice, equity and good
conscience in the matter of impleading the legal representatives6.
EFFECT OF BONA FIDE MISTAKE
IN NOT SUBSTITUTING ALL HEIRS.
In a case of death of a party to a suit or appeal, even if
any heir of the deceased is left out of the record and the plaintiff or
appellant does not bring him on record in the bona fide belief that others being on record the only heirs, the
competence of the suit or appeal will not be effected. It is immaterial whether
no steps have been taken within the time allowed7.
WHEN APPEAL ABATES AS A WHOLE
When
two of the plaintiff appellants died, the decree of the District Judge became
final qua them. If thereafter the High Court granted a decree to the other
plaintiffs appellants there would be two contradictory decisions with regard to
the right which had been jointly claimed by the plaintiffs. In such a case the
second appeal before a single Judge had abated as a whole and the order made by
the Judge must be set aside because he could not have heard the appeal and allowed
after it had abated8.
1. Harjit
Singh v. Raj Kishore, A. I. R. 1984 S. C. 1238.
2. Ram
Charan Lal v. State, A. I. R. 1980 Raj. 96: 1979 Raj. L. W. 439.
3. Jadu
Gopal Chakravarty v. Pannalal Bhomic, A. I. R. 1978 S. C. 1329: (1978) 3 S. C.
C. 215: (1978) 3 S. C. R. 855.
4. Radhakrishna
Padhi v. Bholakrishna Panda, A. I. R. 1981 Orissa 63.
5. Ishwar
Dayal Jain v. Union of India, A. I. R. 1983 Delhi 330.
6. Anant
Ram v. Deputy Commissioner, Kulu, A. I. R. 1972 H. P. 15: Also see A. I. R.
1968 P&H 360: A. I. R. 1967 All. 334.
7. Central
Bank of India Ltd. v. Kala Prasad, 1968 B. L. I. R 494.
8. Puran
Singh v. Hazara Singh, A. I. R. 1966 Punj. 312: 1966 Cur L. J. 216.
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