Source: Jharkhand High Court

Why in News?

Recently, the Jharkhand High Court in the matter of Munga Devi and Ors. v. Kamla Devi, has held that an order passed on an application under Order 22 Rule 3 of the Civil Procedure Code, 1908 (CPC) is not appealable under Order 43 Rule 1 of CPC. Instead, it is considered a revisable order.

What was the Background of Munga Devi and Ors. v. Kamla Devi Case?

• The original plaintiff Parshuram Prasad husband of Munga Devi being the owner of the suit land and house has filed the eviction suit stating that defendant Kamla Devi (Opposite Party) who is the sister of the plaintiff did not vacate the suit premises.
• It is alleged that about 10 years back, the defendant and her husband were facing accommodation problems and were in dire need of residential accommodation. Hence, on account of sympathy the plaintiff allowed the defendant to occupy and live in the suit premises with her husband and children.
• It appears that during pendency of the suit, original plaintiff Parshuram Prasad died leaving behind his wife and sons as heirs and legal representatives.
• Consequentially, an application under Order 22 Rule 3 read with Section 151 of CPC was filed by the present petitioners before the learned court for their substitution in place of original plaintiff to contest the suit, which has been dismissed on extraneous considerations and same has been assailed in this petition.
• Thereafter, a petition has been filed before the Jharkhand High Court.
• Allowing the petition, the High Court directed the Court below to permit the petitioners to be substituted in the original suit as plaintiffs.

What were the Court’s Observations?

• Justice Pradeep Kumar Srivastava observed that an order passed on the application under Order 22 Rule 3 of CPC is not appealable under Order 43 Rule 1 of CPC rather it is a revisable order, Hence, there is no substance in the argument of learned counsel for opposite party that there is remedy of appeal before the Civil Court.
• The Court criticized the lower court for dismissing the substitution application based on extraneous considerations and held that order of the Court was not legally sustainable.

What are the Relevant Legal Provisions Involved in it?

• Order 22, Rule 3 of CPC:
  • Rule 3 deals with the procedure in case of death of one of several plaintiffs or of sole plaintiff. It states that—

(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

• Order 43, Rule 1 of CPC:
  • Rule 1 deals with the appeal from orders. It states that an appeal shall lie from the following orders under the provisions of section 104, namely: —
    • An order under rule 10 of Order 7 returning a plaint to be presented to the proper Court except where the procedure specified in rule 10A of Order 7 has been followed.
    • An order under rule 9 of order 9 rejecting an application in a case open to appeal for an order to set aside the dismissal of a suit.
    • An order under rule 13 of Order 9 rejecting an application in a case open to appeal for an order to set aside a decree passed ex parte.
    • An order under rule 21 of Order 11.
    • An order under rule 34 of Order 21 on an objection to the draft of a document or of an endorsement.
    • An order under rule 72 or rule 92 of Order 21 setting aside or refusing to set aside a sale.
    • An order rejecting an application made under sub-rule (1) of rule 106 of Order 21, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.
    • An order under rule 9 of Order 22 refusing to set aside the abatement or dismissal of a suit.
    • An order under rule 10 of Order 22 giving or refusing to give leave.
    • An order under rule 2 of Order 25 rejecting an application for an order to set aside the dismissal of a suit.
    • An order under rule 5 or rule 7 of Order 33 rejecting an application for permission to sue as an indigent person.
    • Orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order 35.
    • An order under rule 2, rule 3 or rule 6 of order 28.
    • An order under rule 1, rule 2, rule 2A, rule 4 or rule 10 of Order 39.
    • An order under rule 1, or rule 4 of Order 40.
    • An order of refusal under rule 19 of Order 41 to re-admit, or under rule 21 of Order 41 to re-hear, an appeal.
    • An order under rule 23 or rule 23A of Order 41 remanding a case, where an appeal would lie from the decree of the Appellate Court.
• Section 151 of CPC:
  • This section deals with the inherent powers of Court. It states that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.