This revision has been filed under Section 115 of the Code of Civil Procedure by the applicants/defendants - Bharat Petroleum Corporation Limited against the order dated 22.11.2018 passed in RCA No. 69/2018 by the 2nd Upper District Judge, Jabalpur (M.P.), whereby in an appeal preferred by the respondents/plaintiffs/landlords arising out of an eviction suit, an application filed by the plaintiff/landlord under Order 22, Rule 3 of CPC for deleting the name of plaintiff No. 2 has been allowed and an application filed under Section 5 of the Limitation Act read with Order 22, Rule 9 of CPC has also been allowed.
2. In brief, the facts of the case are that the respondents/plaintiffs/landlords had filed a suit for eviction against the applicants-Bharat Petroleum Corporation Limited on the ground of bona fide requirement for carrying out construction over it for starting business over the same and further for the residential purpose and they have got sufficient fund for the same and also on the ground that they do not have any other suitable accommodation of their ownership in the Jabalpur city. The aforesaid eviction suit was dismissed by the trial Court on 21.12.2017. Against the aforesaid judgment, an appeal RCA No. 69/2018 has been preferred by the respondents/plaintiffs/landlords and in the aforesaid appeal, two application were filed which are under Order 22, Rule 3 read with Section 151 of CPC and Section 5 of the Limitation Act read with Order 22, Rule 9 of CPC on the ground that during the course of the trial plaintiff No. 2 Smt. Vimla Singhai died on 18.02.2017 although her name could not be deleted in the trial Court and in the appeal filed by the respondents, her name was also mentioned as plaintiff No. 2. Hence, the aforesaid applications were filed for deleting the name of plaintiff No. 2 on the ground that due to inadvertence the name of plaintiff No. 2 Smt. Vimla Singhai could not be deleted in the trial Court itself; hence, an application for condonation of delay in filing such application was also filed. The learned Judge of the lower appellate Court has allowed the application and the name of plaintiff No. 2 was directed to be deleted. The aforesaid amendment has also been carried out by the respondents/plaintiffs on 22.11.2018. The aforesaid order has been challenged by the applicants - Bharat Petroleum Corporation Limited inter alia on the ground that the impugned order cannot be sustained as the same has been passed on an application which in itself was not tenable.
3. Learned counsel for the applicants has vehemently argued before this Court that the original plaintiff No. 2 Smt. Vimla Singhai passed away on 18.02.2017 when the civil suit was still pending before the trial Court but no application was filed for deletion of her name deliberately by the plaintiffs/respondents despite being aware of the proceedings. Learned counsel has further submitted that no cogent reason has been assigned by the plaintiffs/respondents in filing the aforesaid application and as such, the delay caused in filing the said application ought not to have been condoned. It is submitted that even otherwise the application under Order 22, Rule 3 of CPC was not maintainable as it was prayed in the aforesaid application that the name of Smt. Vimla Singhai be deleted from the array of plaintiffs. It is further submitted that an application under Order 22, Rule 3 of CPC can only be made for substitution of legal heirs of the deceased-plaintiff No. 2 and hence under Order 22, Rule 3 of CPC the name of plaintiff No. 2 cannot be allowed to be deleted as for the said relief an appropriate application is under Order 22, Rule 2 of CPC. Learned counsel has further submitted that the learned Judge of the lower appellate Court, despite holding that there are other legal heirs of the deceased Smt. Vimla Singhai has allowed her name to be deleted. It is submitted that as per the Will of Smt. Vimla Singhai', she also has three more daughters and one son but the plaintiffs did not want them to be arrayed as the parties as the legal heirs of the deceased Smt. Vimla Singhai, and thus, it is submitted that the learned Judge has wrongly relied upon the Will dated 27.12.2015 in which deceased Smt. Vimla Singhai has bequeathed her property to the present plaintiffs. Learned counsel has further submitted that a Will cannot be considered on its face value by the lower appellate Court unless it is proved in accordance with law. Learned counsel has also relied upon the judgment rendered by the Apex Court in the case of Amba Bai & others vs. Gopal & others reported as, (2001) 5 SCC 570 : (AIR 2001 SC 2003). Thus, it is submitted that the impugned order be set aside and in fact, the appeal be also dismissed as abated.
4. Learned counsel for the caveat or/respondents on the other hand has opposed the prayer and has submitted that it is true that the application was filed quoting a wrong provision of law as the application ought to have been filed under Order 22, Rule 2 of CPC instead Rule 3 of the same, however, the learned Judge of the lower appellate Court has rightly held that the nomenclature of an application is immaterial. Learned counsel has further submitted that it is an eviction suit in which three plaintiffs had joined against the defendant, and during the course of the trial, if the plaintiff No. 2 Smt. Vimla Singhai passes away, it would not result in the abatement of the suit. It is submitted that her name could not be deleted only due to inadvertence as there was no reason for the present plaintiffs to not to delete the name of plaintiff No. 2 Vimla Singhai. It is further submitted that it was not necessary for the other surviving plaintiffs to implead the names of the legal heirs of Smt. Vimla Singhai as both of them being the sons of deceased plaintiff No. 2 Smt. Vimla Singhai were also bequeathed the property through her Will dated 27.12.2015. Learned counsel has submitted that it is a settled law that the eviction suit can be brought by any of the landlord of the property. Thus, even if the names of the other legal representatives or legal heirs of plaintiff No. 2 was not included in the array of the plaintiffs, no prejudice could have been caused to the defendants. Thus, it is submitted that the petition being devoid of merit, is liable to be dismissed.
5. Heard learned counsel for the parties and perused the record.
6. From the record, it is apparent that the deceased plaintiff No. 2 Smt. Vimla Singhai died on 18.02.2017 whereas the final judgment in the civil suit was passed on 21.12.2017 and the application for deleting the name of plaintiff No. 2 was filed before the lower appellate Court on 19.02.2018. This application has been allowed by the learned Judge of the trial Court by condoning the delay in filing the same and also holding that it is an eviction suit which survives even if one of the plaintiff No. 2 has passed away. Learned Judge of the trial Court has also distinguished the judgment relied upon by the plaintiffs in the case Amba Bai AIR 2001 SC 2003, (supra) on the ground that the aforesaid suit was for the specific performance of contract whereas in the present case the suit was filed for eviction by the plaintiffs.
7. In the considered opinion of this Court, no illegality or jurisdictional error has been committed by the learned Judge of the lower appellate Court in passing the impugned order. The learned Judge has rightly held that the nomenclature of an application is inconsequential and it is the contents of the application which are more important than its title. This Court also finds that the reasoning assigned by the learned Judge of the lower appellate Court to be corrected in holding that the appeal still survives even after the death of plaintiff No. 2 hence, her name may be deleted from the array of the cause title. However, the reliance placed by the learned Judge of the trial Court on the Will cannot be said to be justified as the aforesaid Will on its face value cannot be held to be the testimonial of the rights of the parties unless appropriate proceedings under the provisions of Succession Act, 1925 are initiated. However, since the plaintiffs have also pleaded in their applications filed, under Order 22, Rules 3 & 9 of CPC that although any of the plaintiffs could have filed the eviction suit, being he co-owner of the property but they jointly filed the same, it also gives an indication about the nature of the suit, hence, when the right to sue still survives, there is no question of abatement of the entire suit/appeal on the ground of non-impleadment of the legal heir of the plaintiff No. 2.
8. Be that as it may, since this Court is not inclined to accept the contention of the counsel for the applicants, and finds no illegality or jurisdictional error in the impugned order, the petiti
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on is liable to be and is hereby dismissed. 9. As a parting note, this Court also expresses its displeasure to the manner in which the present eviction case is being contested by the applicants Bharat Petroleum Corporation Limited which is a hefty public sector undertaking. It is quite unbecoming of a pub-he sector organization to oppose such orders on technical grounds as in the present case. 10. In the circumstances, a cost of Rs. 50,000/- is also imposed on the applicants for filing such trivial application and wasting the valuable time of this court. The aforesaid cost shall be deposited within 15 days from the date of receipt of certified copy of this order in Army Central Welfare Funds with the Saving Account Number, old A/C. No. 020500101007721 and new A/C. No. 520101236373338 of Corporation Bank, Chandni Chowk, Delhi so that amount can be utilized for a National Cause. The receipt of the aforesaid cost be deposited before the Registry of this Court.