ANITA L. DSILVA Vs. HERCULANO ERNESTO LACERDA

JUDGEMENT

(1.) HEARD Shri Nigel Da Costa Frias, learned Counsel appearing for the Petitioners and Shri Arun Bras De Sa, learned Counsel appearing for the Respondents. The above Writ Petition challenges the Order passed by the learned Civil Judge, Junior Division, at Margao, dated 13.12.2007, whereby an application under Order 1 Rule of the Civil Procedure Code to implead the legal representatives of deceased plaintiff no. 5 as defendants came to be dismissed.

(2.) SHRI Nigel Da Costa Frias, learned Counsel appearing for the Petitioners has pointed out that the Petitioners were the original plaintiffs to the suit and during the pendency of the said suit, the plaintiff no. 5 expired. The remaining plaintiffs within the time prescribed filed an application to bring the legal representatives of deceased plaintiff no. 5 on record and, as such, the application came to be allowed. But, however, l despite of notice issued to the legal representatives of deceased plaintiff no. 5, none filed appearance on behalf of such legal representatives. The learned Judge as such by Order dated 16.08.2007 dismissed the suit for default of appearance as far as the legal representatives of deceased plaintiff no. 5 is concerned. Learned Counsel further pointed out that immediately thereafter, on the next hearing on 08.09.2007, the Petitioners filed an application to implead the legal representatives of deceased plaintiff no. 5 as proforma defendants to the suit. The defendants in the suit raised objections to the said application. Learned Judge by the impugned Order dated 13.12.2007, dismissed the application filed by the Petitioners. The learned Counsel further pointed out that the suit filed by the Petitioners being a suit for declaration of co -owners, the said legal representatives of Plaintiff no. 5 are necessary parties to the suit and, as such, the question of refusing impleadment of the parties sought to be impleaded is totally unjustified. Learned Counsel as such submits that the impugned Order be quashed and set aside and the application filed by the Petitioners under Order 1 Rule of the Civil Procedure Code be allowed.

(3.) I have carefully considered the submissions of the learned Counsel and I have also perused the records. The records reveal that upon the death of the plaintiff no. 5, an appropriate application to bring the legal representatives of deceased plaintiff was filed by the other plaintiffs which came to be allowed. Thereafter, when notice was issued to the said legal representatives, none appeared on behalf of the legal representatives and the learned Judge by the Order dated 16.08.2007 dismissed the suit as far the legal representatives of deceased plaintiff no. 5 is concerned. Once the legal representatives of the deceased plaintiff no. 5 did not appear, the appropriate procedure would be to transpose the said legal representatives as proforma defendants. In fact, the application filed by the Petitioners on the next date of hearing i.e. 06.09.2007, which came to be rejected by the impugned Order dated 13.12.2007 should be construed as an application to transpose the legal representatives of the deceased Plaintiff no.5 as proforma defendants to the suit. The provisions of Order 1 Rule of the Civil Procedure Code, in any event, enable even the Court to implead necessary parties to the suit at any stage of the suit and as there is no dispute that the legal representatives of the deceased plaintiff are otherwise necessary parties to the suit, I find that the learned Judge was not at all justified to pass the impugned Order and dismiss the application filed by the Petitioners. The impugned Order as such cannot be sustained and deserves to be quashed and set aside and the application filed by the Petitioners to implead the legal representatives of the deceased plaintiff no. 5 to record as defendant nos. 3 to 7 deserves to be allowed. In view of the above, I pass the following: