LEGAL HEIRS OF A SOLE DEFENDANT WHO DIED PRIOR TO SUIT FILING MAY BE IMPLEADED UNDER ORDER I RULE 10 CPC.

The Plaintiff filed a suit for specific performance regarding an Agreement to Sell dated 25.11.2020 for agricultural land in Kapashera, Delhi

The suit was electronically filed on 26.05.2023, while the sole Defendant passed away in June 2023

The matter was re-filed after defects in October 2023 and registered in November 2023

Upon learning of the Defendant's death, the Plaintiff initially filed applications under Order XXII Rule 4 and 9 of the CPC to set aside abatement

However, as the Defendant had died before the formal registration/re-filing of the suit, the Plaintiff withdrew those applications and filed the present application under Order I Rule 10(2) of the CPC to implead the Legal Representatives (LRs)

1. Whether a suit filed against a dead person is non est or whether the legal representatives can be impleaded under Order I Rule 10 of the CPC.

2. Whether the court can exercise discretion to implead LRs when the Plaintiff was ignorant of the Defendant’s death at the time of institution.

The Court applied Order I Rule 10(2) of the CPC, which allows the court to add parties necessary for effective adjudication at any stage

Section 21 of the Limitation Act, 1963, specifically the proviso to sub-section (1), which permits a suit to be deemed instituted on an earlier date if the omission of a party was a bona fide mistake

The Court followed the Supreme Court precedents in Karuppaswamy v. C. Ramamurthy (1993) and Pankajbhai Rameshbhai Zalavadiya v. Jethabhai Kalabhai Zalavadiya (2017), which established that Order XXII Rule 4 applies only if a defendant dies during the subsistence of a suit, whereas Order I Rule 10 is the appropriate remedy if the defendant died prior to the suit's institution

The Court analyzed the filing logs which confirmed the suit was initialy e-filed on 26.05.2023, prior to the Defendant’s death on 22.06.2023, though re-filed later

Applying the principle that "laws of procedure are devised for advancing justice and not impeding the same," the Court noted that the Plaintiff was ignorant of the death, evidenced by a legal notice returned with the remark "koi jankari nhi"

The Court reasoned that since the Defendant was the sole owner and his LRs are necessary for a decree of specific performance, their presence is vital to settle the controversy

It rejected the Defendant’s technical objection regarding the change in the affidavit date, holding that such hyper-technicalities should not result in a miscarriage of justice when a bona fide mistake is evident

The LRs were ordered to be brought on record and the amended memo of parties was accepted. The Court clarified that the Defendant’s contentions regarding changes in the plaint were not germane to the impleadment stage. The matter was directed to be listed before the Joint Registrar on 04.08.2026