The power to amend evidence is not expressly provided under Order XVIII of CPC. The procedure provided under Rule 16 of Order XVIII cannot be construed as power conferred on the Court to undertake ex post facto corrections of the recorded evidence. In the considered view of this Court, Rule 16 deals with power of the Court to examine witnesses immediately. Rule 16(3) refers to the procedure set out in Rules 4 to 6 to and if a correction is pointed out, the Judge is empowered to carry out the corrections, then take the signature of the party and then certify that evidence is recorded. A contemporaneous omission or correction pointed out before signing the evidence has the advantage of drawing the attention of the Court which has recorded the evidence, the counsel present when the evidence was recorded do their part and then and there a bona fide correction can be attended by the Court. On the other hand, if the procedure stipulated in sub-Rule 3 of Rule 16 is extended for correction of evidence available on record, in the considered view of this Court, such procedure leads to an anomalous situation as pointed out by this Court in the decision referred to supra.

AP & TELANGANA HIGH COURT
HON'BLE SRI JUSTICE S.V.BHATT
C.R.P. No.3917 OF 2016
ORDER:
Heard Mr.C.Prakash Reddy for revision petitioners and
Mr.Virupaksha Dattatreya Gouda for respondent.
Defendants in O.S.No.56 of 2014 in the Court of Senior Civil
Judge, Atmakur are the revision petitioners. The revision is directed
against the order in I.A.No.172 of 2016 dated 18.07.2016. The
Impugned order in the revision is very brief and reads thus:
“I.A.No.172/16 is allowed. Accordingly, the word “not” is
added after the portion of sentence “The writing present
in Ex.B1 calculation sheet is” in the impugned sentence
“The writing present in Ex.B1 calculation sheet is that of
mine. Call on 19.07.2016”
The circumstances relevant for the disposal of the revision are
as follows:
The respondent filed O.S.No.56 of 2014 to recover
Rs.2,61,120/- from the revision petitioners herein. The revision
petitioners as legal representatives of debtor late Kunduru Siva
Reddy are arrayed as parties to the suit. The suit is based on
promissory notes dated 22.08.2012 said to have been executed by
late Kunduru Siva Reddy. The revision petitioners filed written
statement and are contesting the suit in all fours. On 05.06.2015, the
chief affidavit of P.W.1/respondent under Order XVIII Rule 4 of Code
of Civil Procedure (CPC) was affirmed. On 27.11.2013, the
2
respondent entered the witness box, chief affidavit was taken on
file and Exs.A.1 to A.19 were marked. On 02.12.2015, 08.12.2015
and 09.12.2015, the respondent was cross examined and his
evidence was recorded and closed as prescribed by Order XVIII
Rule 4 of CPC. On 06.06.2016, the respondent filed I.A. No.172 of
2016 under Order XVIII Rule 16 (3) read with Section 151 CPC and
the prayer in the instant I.A. reads thus:
“For the reasons stated in the accompanying affidavit, it is
therefore prayed that the Hon’ble Court may be pleased to
correct schedule mentioned item No.1 statement occurred
in the deposition of PW1, as per Or.18, rule 16(3) read with
under sec.151 C.P.C. as the Hon’ble court has got ample
power to rectify the mistakes that was crept in as shown in
the item No.2 of Schedule, in the interest of justice.
Schedule:
I. PW1- Deposition-Cross Examination dt: 08-12-2015
(Page 2 of cross examination) Line:4th line from bottom;
The writing present in Ex.B1 calculation sheet is that
of mine.
II.The proposed correction -
The writing present in Ex.B1 calculation sheet is not
that of mine.“
The revision petitioners opposed these prayers.
The trial Court through the order impugned in the C.R.P.
allowed I.A. No.172 of 2016. Hence, the revision.
At the outset, it is to be remarked that the order impugned in
the revision is not a speaking order and the reasons stated by the
learned Judge are too succinct and the order does not also
convey what the trial Court intended to permit P.W.1/respondent
by allowing this application. On this ground alone, the order
impugned in the revision could be set aside, but learned counsel
3
appearing for the parties have addressed arguments on the
jurisdiction, scope and power of Court on the one hand to correct
the evidence recorded by the Court and on the other that the
Court does not have power to correct evidence recorded in the
open Court signed by the party and thereafter certified by the
Judge recording the evidence. Hence, the prayer in I.A.No.172 of
2016 is on merits and is considered by this Court from the material
available on record.
Mr. C.Prakash Reddy for revision petitioners contends that the
prayer in I.A. No.172 of 2016 is completely an afterthought and the
chronology of events from 05.06.2016 till 09.12.2015 would go
to show that the instant application is filed only to erase impact
of admission allegedly given by P.W.1/respondent on Ex.B.1
calculation memo relied upon by the revision petitioners.
He contends that Order XVIII Rule 16 of CPC has no application,
much less Section 151 has conferred jurisdiction on the trial Court to
correct the evidence recorded in the presence of counsel, signed
by a party and certified by the Court. He further contends that if
the prayer for amendment of evidence recorded in the open Court
is accepted, the same amounts to treating evidence on par with
pleadings. He contends that the Court while recording evidence is
bound by the procedure stipulated under Sub-Rules 4, 5, 6 of Order
XVIII. The corrections of any sentence which adversely affect the
opposite party cannot and could not be undertaken. He places
strong reliance upon the provisions referred to above and prays for
4
setting aside the order impugned in the revision and dismiss I.A.
No.172 of 2016.
Mr.Virupaksha Dattatreya Gouda for respondent contends
that the P.W.1/respondent on 08.12.2015, while answering question
as to who has scribed Ex.B.1, answered that the writing in Ex.B.1
calculation sheet is not that of mine i.e., respondent herein, but the
Court while recording the evidence has omitted to record the word
“not”. The sentence as recorded can be treated as admission by
petitioners. The respondent having noticed the omission in
recording the cross examination portion has moved the instant
application for the prayer referred to above. While admitting that
there is no explicit provision to amend or correct oral evidence still
he contends that there is no prohibition in the Code for correcting
clerical, arithmetical or dates in the evidence recorded by the
Court. The power to correct the evidence recorded is unavaibale
to Court. The party to a lis when evidence is not properly recorded
suffers irreparable injury and hardship. He places reliance upon the
decisions in Mir Mohd. Omar v. State of West Bengal1 and Bankim
Behari Das v. Md.Hasen Ali2. The learned counsel appearing for
respondent fairly states that there is no direct provision or authority
on the power of trial Court ex post facto to correct the “evidence”
recorded under Order XVIII of CPC. From the scheme of Code, he
contends that such power can be inferred and the Officer, who has
recorded the evidence if is satisfied about the mistake pointed out
by applicant that the word “not” is omitted while recording
evidence, the Court can correct the evidence and no exception
1 (1989) 4 SCC 436
2 MANU/GH/0407/2010
5
can be taken. He does not dispute that Order XVIII Rule 16 does not
fit into the prayer of respondent, however, Rule 16 of Order XVIII can
be referred for the limited purpose of appreciating and applying
the power of Court to correct the evidence already recorded.
In reply to the challenge that the order impugned is brief and
without reasons, learned counsel submits that the Court which is
conducting the trial has substantially accepted the reasons stated
by the respondent and accordingly allowed the application and
the lack of reasons cannot be a ground for either setting aside or
independently considering the matter by this Court.
I have heard the counsel for the parties, noted the
submissions and perused the material on record in the revision
petition.
The point for consideration is whether the trial Court has
jurisdiction to correct evidence and insert word “not” in the cross
examination conducted on 08.12.2015?
Let me examine the provisions dealing with recording of
evidence in C.P.C.
Order XVIII of CPC deals with hearing of suit and examination
of witnesses. Hearing and examination of witnesses are normally
done in open Court by the Judge presiding the Court. Rules 4, 5
and 6 of Order XVIII read thus:
4.Recording of evidence –(1) In every case, the
examination-in- chief of a witness shall be on affidavit and
copies thereof shall be supplied to the opposite party by the
party who calls him for evidence.
6
Provided that where documents are filed and the parties
rely upon the documents, the proof and admissibility of such
documents which are filed along with affidavit shall be
subject to the orders of the Court.
(2) The evidence (cross-examination and re-examination)
of the witness in attendance, whose evidence
(examination-in-chief) by affidavit has been furnished
to the Court, shall be taken either by the Court or by
the Commissioner appointed by it:
Provided that the Court may, while appointing a
commission under this sub-rule, consider taking into
account such relevant factors as it thinks fit:
(3) The Court or the Commissioner, as the case may be,
shall record evidence either in writing or mechanically
in the presence of the judge or of the Commissioner,
as the case may be, and where such evidence is
recorded by the Commissioner he shall return such
evidence together with his report in writing signed by
him to the Court appointing him and the evidence taken
under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it
thinks material respecting the demeanour of any
witness while under examination:
Provided that any objection raised during the recording
of evidence before the Commissioner shall be recorded
by him and decided by the Court at the stage of
arguments.
(5) The report of the Commissioner shall be submitted to
the Court appointing the commission within sixty days
from the date of issue of the Commission unless the
Court for reasons to be recorded in writing extends the
time.
(6) The High Court or the District Judge, as the case may
be, shall prepare a panel of Commissioners to record
the evidence under this rule.
7
(7) The Court may by general or special order fix the
amount to be paid as remuneration for the services of
the Commissioner.
(8) The provisions of Rules 16,16-A, 17 and 18 of Order
XXVI, insofar as they are applicable, shall apply to the
issue, execution and return of such commission under
this rule.
5. How evidence shall be taken in appealable cases:- In
cases in which an appeal is allowed, the evidence of each
witness shall be,-
(a) taken down in the language of the Court,-
(i) in writing by, or in the presence and under the
personal direction and superintendence of, the
judge; or
(ii) from the dictation of the judge directly on a
typewriter; or
(b) if the judge, for reasons to be recorded, so
directs, recorded mechanically in the language of
the Court in the presence of the judge.
6. When deposition to be interpreted:- Where the evidence
is taken down in language different from that in which it is
given, and the witness does not understand the language in
which it is taken down, the evidence as taken down in writing
shall be interpreted to him in the language in which it is given.
According to Sub-Rule 2 of Rule 4, the evidence of witness in
attendance shall be taken either by the Court or by the
Commissioner appointed by it. Sub-Rule 3 of Rule 4 provides for
recording evidence in writing or mechanically in the presence of
the Judge or the Commissioner as the case may be. Therefore, the
evidence recorded in writing or mechanically in the Court in the
presence of the Judge or as directed by the Court by the
Commissioner is treated as evidence. Rule 5 deals with the
procedure for taking evidence in appealable cases. Under Rule 5
(a) the recording of evidence is in the language of Court; in writing
by, or in the presence and under the personal direction and
8
superintendence of Judge. (emphasis added). Under Clause (a) (ii),
evidence shall be from the dictation of the Judge directly on a
Typewriter. Clause (b) deals with the evidence recorded
mechanically in the presence of the Judge. Under Rule 6, the
deposition is interpreted where the evidence is taken down in a
language different from that in which it is given by a witness and
the witness does not understand the language in which it is
recorded. Therefore, it means that the evidence recorded in English
is interpreted and explained to the witness in vernacular.
Thereafter, the witness signs on the evidence and the Judge in
whose presence evidence was recorded, certifies that the
evidence has been recorded in his presence. In other case, where
evidence is recorded by Court Commissioner, he certifies the
recording of the evidence in the form provided by Rules 5 and 6 of
Order XVIII. Once the signature of the witness is over, and the Court
is satisfied with the recording the evidence in open Court, the same
is treated as evidence of a party. Rules 4 to 6 of Order XVIII do not
provide for correction of statements in cross examination which is
pending before Court as evidence. In other words, once the
signature of the party/witness is completed and the Court certifies
the same, the statement so recorded becomes evidence. The
respondent either in the affidavit filed by him or before this Court
does not point out deviation of the procedure presently discussed
by the Court. In spite of it, a prayer for amendment or inclusion of a
word in the evidence recorded by a Judge in the open Court on
08.12.2015 is made and accepted. Order XVIII dealing with hearing
and recording of evidence provides for all stages in the recording
9
of evidence namely persons who have right to commence the trial,
right to reserve to lead evidence on issues covered by Rule 3(a) of
the Rules and rebuttal evidence, mode and manner of recording
evidence in the Court by a Judge or Commissioner as directed by
the Court. The purpose of oral evidence and the object of cross
examination cannot and could not be lost sight by the trial Court
while accepting request for amendment of evidence already
recorded, signed and certified by it. At this juncture, reference to
decision in Rohit Steels Pvt. Ltd., Secunderabad v. Poddar Projects
Ltd.,Hyderabad3 is useful and the relevant portion reads thus.
“4. It is not as if only those persons, who know English,
alone are permitted to depose as witnesses. In fact,
majority of the witnesses depose in vernacular languages
and the deposition is translated into English, by the
Court. The presence of the Counsel for parties ensures
that the accurate translated version of the deposition is
recorded. The discrepancies, if any, are corrected at
more stages than one. Firstly, when the dictation takes
place, the concerned parties or their Counsel can
certainly point out the real purport of the statement of the
witness. Secondly, before the recorded deposition is
signed, witnesses as well as the concerned Counsel are
supposed to go through it. The deposition acquires its
evidentiary value only, when it is signed by the witness.
Once the witness has chosen to sign it, he is supposed to
have been satisfied about its accuracy and he cannot be
permitted to turn around and complain of any inaccuracy.
5. Permitting the correction of deposition, at a later point
of time, is prone to take away the importance of cross
examination. It may reflect on the capacity of the
Presiding Officer also. If the sentences, in a deposition,
are to be corrected, on the plea that it does not represent
the correct translation, many admissions or crucial
sentences, which are found to be against the interest of a
particular party, can be overcome through this process.
3 2007 (3) ALD 281
10
Further, if any accidental omissions have taken place and
the party had lost the chance of correcting them through
re-examination, the opportunity of leading further
evidence to present the actual purport, is always there.”
The Code lays emphasis for conduct of trial in open Court
and the public trial in open Court is undoubtedly essential for the
healthy, objective and fair administration of justice. As trial is
conducted in public gaze, naturally checks judicial caprice and
vagaries. This is one of the reasons for enhancing public
confidence in administration of justice by Courts. Openness and
publicity constitute the very soul of administration of justice. Open
Court conduct of trial in practice keeps the Judge trying under trial.
Therefore, the Code has put in place all provisions in place for
recording evidence and the sanctity attached to such statement
after the same is recorded as evidence.
Pleadings in a case at best can be treated as result of
instruction given by a party and settled by his counsel. Procedure
enables amendment to pleadings subject to a few limitations. On
the other hand, the witness deposes in open court on oath, in the
presence of Advocates and recorded by the Judge as evidence,
presumed to have been interpreted correctly, opportunity is
available to go through the recorded evidence, before it is actually
signed by witness and certified by the Court. These steps have
given sanctity to statements made in court by a witness. The
evidence was recorded is appreciated factually and legally under
the provisions of the Evidence Act and conclusions are recorded.
Therefore, for slight or strong reasons, the recorded evidence ought
11
not to be amended by the Court even at the instance of a party
making the statements.
The power to amend evidence is not expressly provided
under Order XVIII of CPC. The procedure provided under Rule 16 of
Order XVIII cannot be construed as power conferred on the Court
to undertake ex post facto corrections of the recorded evidence.
In the considered view of this Court, Rule 16 deals with power of the
Court to examine witnesses immediately. Rule 16(3) refers to the
procedure set out in Rules 4 to 6 to and if a correction is pointed
out, the Judge is empowered to carry out the corrections, then take
the signature of the party and then certify that evidence is
recorded. A contemporaneous omission or correction pointed out
before signing the evidence has the advantage of drawing the
attention of the Court which has recorded the evidence, the
counsel present when the evidence was recorded do their part and
then and there a bona fide correction can be attended by the
Court. On the other hand, if the procedure stipulated in sub-Rule 3
of Rule 16 is extended for correction of evidence available on
record, in the considered view of this Court, such procedure leads
to an anomalous situation as pointed out by this Court in the
decision referred to supra. In the case on hand, the insertion of
word “not” at the instance of respondent in the impugned
sentence is illegal and secondly contrary to the explicit procedure
provided under Rules 4 and 6 of Order XVIIII of CPC and not within
the jurisdiction of the Court.
12
The decisions relied upon by the counsel for respondent are
not directly on the point and the points decided therein are not
having persuasive precedence in deciding the question that fell for
consideration in this revision.
The revision is, accordingly, allowed and order impugned in
the revision is set aside. No order as to costs.
Miscellaneous petitions, if any pending, shall stand closed.
_____________
S. V. BHATT, J
Date:17.10.2016
Note:
L.R. Copy to be marked.
B/o.
Stp

No suit against dead person - his legal heirs be brought by impleading petition when or.22, rule 4 C.P.C. was dismissed on technical point - As mentioned supra, it is only if a defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the Code can be invoked. Since one of the defendants i.e. defendant No.7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased defendant No.7 under Order 1 Rule 10 of the Code, for the simple reason that the plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties, subject of course to the law of limitation. Normally, if the plaintiff had known about the death of one of the defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that the High Court experienced in granting the application filed by the plaintiff under Order 1 Rule 10 of the Code discloses, with great respect, a hyper-technical approach which may result in the miscarriage of justice. As the heirs of the deceased defendant no.7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the Courts are meant to do substantial justice between the parties and that technical rules or procedures should not be given precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice. Having regard to the totality of the narration made supra, there is no bar for filing the application under Order 1 Rule 10, even when the application under Order 22 Rule 4 of the Code was dismissed as not maintainable under the facts of the case. The legal heirs of the deceased person in such a matter can be added in the array of parties under Order 1 Rule 10 of the Code read with Section 151 of the Code subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial. In view of the above, the impugned judgment of the High Court is set aside. The appeal is allowed. The Trial Court is directed to implead the legal representatives of deceased defendant no. 7 and bring them on record, subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code, as well as under Section 21 of the Limitation Act, 1963, to be decided during the trial.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 15549 OF 2017
Arising Out Of SLP (C) NO. 31212 of 2014
Pankajbhai Rameshbhai Zalavadia ……Appellant
Versus
Jethabhai Kalabhai Zalavadiya (Deceased)
Through LRs & Ors ……Respondents
J U D G M E N T
Mohan M. Shantanagoudar, J.
Leave Granted.
2. This appeal arises out of the judgment dated
05.03.2014 passed by the Gujarat High Court in Special
Civil Application No. 16985 of 2011 dismissing the
Special Civil Application filed by the appellant,
consequently affirming the order passed by the trial
Court rejecting the application filed under Order 1
Rule 10 of the Code of Civil Procedure (hereinafter
referred to as the “Code”).
2
3. The brief facts leading to this appeal are as
under:
The appellant filed a suit on 24.06.2008 seeking to
set aside a sale deed executed in March 1995 in respect
of a parcel of land which was purchased by defendant
no. 7. As on the date of filing of the suit, defendant
no. 7 was already dead. Upon the report of the process
server to this effect, the trial Court on 31.03.2009
ordered that the suit had abated as against defendant
no. 7. Initially, the appellant filed an application
under Order 22 Rule 4 of the Code for bringing on
record the legal representatives of deceased defendant
no. 7. The trial Court while rejecting the said
application on 09.09.2009 observed thus:
“According to the ratio laid down in
the above said cases Order 22 Rule 4
of Code will apply only when the party
dies during the pendency of the
proceeding. Further held that a suit
against dead person is admittedly a
nullity and therefore, Order XXII Rule
4 cannot be invoked. Further held
that the provisions of Order XXII Rule
4 of Code and Order 1 Rule 10 of Code
are different and independent.
Therefore, according to heirs of
3
deceased defendant, the heirs cannot
be joined as party because the suit is
filed against dead person.
Now in this case, the endorsement for
the bailiff for the death of defendant
No. 7 made on 31.01.2009 and the
present application is filed on
20.05.2009. The application is filed
for setting aside abatement and to
join the heirs in this suit.
Moreover, there is no case of the
plaintiff that he has no knowledge
about the death of defendant No. 7 or
he has made inquiry. Therefore, as
per the judgment produced by the
defendant, the suit against dead
person is nullity. Moreover, the
plaintiff has not mentioned the
provision under which he has filed the
present application. Moreover, the
plaintiff has remedy against the heirs
therefore, no injustice will cause to
him. Moreover, there are other
defendants on record.
Under these circumstances, the
application cannot be allowed. Hence,
I pass the following order in the
interest of justice.
ORDER
1. The application is not allowed.
2. No order as to cost.”
Thereafter the appellant chose to file an
application for impleading the legal representatives of
4
deceased defendant no. 7 on record, under Order 1 Rule
10 of the Code. The aforementioned application also
came to be dismissed by the trial Court on 03.09.2011,
and confirmed by the High Court by passing the impugned
judgment. Hence, this appeal.
4. Learned counsel for the appellant/original
plaintiff contended that the subsequent application
under Order 1 Rule 10 of Code could not be dismissed by
applying the principle of res-judicata merely because
the application filed earlier under Order 22 Rule 4 of
the Code was dismissed on account of
non-maintainability; that the appellant has accepted
the order passed by the trial Court on the application
filed under Order 22 Rule 4 of the Code since the
reasons assigned by the trial Court were proper and
acceptable inasmuch as the legal representatives cannot
be brought on record under Order 22 Rule 4 of the Code
in the suit filed against defendant no. 7, who had died
prior to filing of the suit; the provisions of Order
22 Rule 4 of the Code will apply only if the sole, or
5
one of the defendants, dies during the subsistence of
the suit. Since defendant no.7 had expired prior to
the filing of the suit, the only course open for the
appellant was to implead the legal
representatives/heirs of deceased defendant no.7 on
record under Order 1 Rule 10 of the Code; hence, the
earlier order rejecting the application filed under
Order 22 Rule 4 of the Code as not maintainable will
not operate as res-judicata for entertaining the
subsequent application for impleading the legal
representatives of deceased defendant no.7, under Order
1 Rule 10 of the Code. As the appellant did not have
knowledge about the death of defendant No.7, the suit
has a right to survive and the mistake committed by the
appellant in not arraying the legal representatives of
deceased defendant no. 7 at the time of filing of the
suit is a bona fide mistake and not a deliberate one.
Since such mistake has occurred in good faith, the
right to continue the suit against the legal
representatives of deceased defendant no.7 remains.
6
The trial has not yet begun and hence the issue of
delay, if any, in bringing the legal representatives on
record, will not prejudice the legal representatives of
defendant No.7. Since the proposed parties are
necessary parties to the suit and their impleadment
cannot prejudice anybody, the interests of justice
require bringing of the legal representatives of
deceased defendant no. 7 on record.
Per contra, learned counsel appearing on behalf of
the respondents relying upon the catena of judgments
reported in Ram Prasad Dagduram vs Vijay Kumar Motilal
Mirakhanwala & Ors., AIR 1967 SC 278, Madhukar
Ramachandra Keni vs Vasant Jagannath Patil & Ors., 2013
(4) Mh. L. J. 403, Jayalaxmi Janardhan Walawalkar &
Ors. vs Lilachand Laxmichand Kapasi & Ors., 1998 (3)
Mh. L. J. 618, Arora Enterprises Ltd. vs Indubhushan
Obhan 1997 (5) SCC 366 contended that the trial Court
as well as the High Court are justified in rejecting
the application for impleading the legal
representatives of deceased defendant no. 7 filed under
7
Order 1 Rule 10 of the Code; since the application
filed by the appellant initially under Order 22 Rule 4
of the Code was dismissed and as the second application
filed under Order 1 Rule 10 of the Code was for the
very same purpose, the Courts below were justified in
rejecting the application preferred under Order 1 Rule
10 of the Code. He further submits that the
application preferred under Order 1 Rule 10 of the Code
to implead the legal representatives of deceased
defendant no.7 is not maintainable, since the appellant
has not questioned the earlier Order dated 09.09.2009
rejecting the application filed under Order 22 Rule 4
of the Code, and therefore the said order has attained
finality and binds the appellant; the appellant cannot
be allowed to file another application for the same
relief by invoking different provision of the Code.
5. The only question which is to be decided in this
appeal is, whether the legal representatives of one of
the defendants can be impleaded under Order 1 Rule 10
of the Code where such defendant expired prior to the
8
filing of the suit, particularly when the application
filed by the plaintiff to bring the legal
representatives of the deceased on record under Order
22 Rule 4 of the Code was dismissed earlier as not
maintainable.
6. The bare reading of Order 22 Rule 4 of the Code
makes it clear that Order 22 Rule 4 of the Code applies
only in the case where the death of one of the several
defendants or the sole defendant occurs during the
subsistence of the suit. If one of the defendants has
expired prior to the filing of the suit, the legal
representatives of such deceased defendant cannot be
brought on record in the suit under Order 22 Rule 4 of
the Code. Before proceeding further, it is relevant
to note the provisions of Order 1 Rule 10 and Sections
151 & 153 of the Code, which read thus:
“Order 1 Rule 10: Suit in name of
wrong plaintiff. –
1. Where a suit has been instituted
in the name of the wrong person as
plaintiff or where it is doubtful
whether it has been instituted in the
name of the right plaintiff, the Court
9
may at any stage of the suit, if
satisfied that the suit has been
instituted through a bona fide
mistake, and that it is necessary for
the determination of the real matter
in dispute so to do, order any other
person to be substituted or added as
plaintiff upon such terms as the Court
things just.
2. Court may strike out or add
parties.- The Court may at any stage
of the proceedings, either upon or
without the application of either
party, and on such terms as may appear
to the Court to be just, order that
the name of any party improperly
joined, whether as plaintiff or
defendant, be struck out, and that the
name of any person who ought to have
been joined, whether as plaintiff or
defendant, or whose presence before
the Court may be necessary in order to
enable the court effectually and
completely to adjudicate upon and
settle all the questions involved in
the suit, be added.
3. No person shall be added as a
plaintiff suing without a next friend
or as the next friend of a plaintiff
under any disability without his
consent.
4. Where defendant added, plaint to
be amended.- where a defendant is
added, the plaint shall, unless the
Court otherwise directs, be amended in
such manner as may be necessary, and
amended copies of the summons and of
10
the plaint shall be served on the new
defendant and, if the Court thinks
fit, on the original defendant.
5. Subject to the provisions of the
India Limitation Act, 1877 (15 of
1877), section 22, the proceedings as
against any person added as defendant
shall be deemed to have begun only on
the service of the summons.
Section 151: Saving of inherent powers
of Court - 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.
Section 153: General power to amend –
The Court may at any time, and on such
terms as to costs or otherwise as it
may think fit, amend any defect or
error in any proceeding in a suit; and
all necessary amendments shall be made
for the purpose of determining the
real question or issue raised by or
depending on such proceeding.
7. In the matter on hand, the sale was made in favour
of defendant no. 7, and the validity of the sale deed
was the subject matter of the suit. The purchaser of
the property, i.e. defendant no.7, though dead at the
time of filing the suit, was made one of the defendants
erroneously. The persons who are now sought to be
11
impleaded under Order 1 Rule 10 of the Code are the
legal representatives of the deceased defendant no. 7.
Therefore, there cannot be any dispute that the
presence of the legal representatives of the deceased
is necessary in order to enable the Court to
effectively and completely adjudicate upon and settle
all the questions in the suit. Their presence is
necessary in the suit for the determination of the real
matter in dispute. Therefore, they are needed to be
brought on record, of course, subject to the law of
limitation, as contended under Section 21 of the
Limitation Act.
8. Merely because the earlier application filed by the
appellant under Order 22 Rule 4 of the Code was
dismissed on 09.09.2009 as not maintainable, it will
not prohibit the plaintiff from filing another
application, which is maintainable in law. There was
no adjudication of the application to bring legal
representatives on record on merits by virtue of the
order dated 09.09.2009. On the other hand, the earlier
12
application filed under Order 22 Rule 4 of the Code was
dismissed by the trial Court as not maintainable,
inasmuch as defendant no. 7 had died prior to the
filing of the suit and that Order 22 Rule 4 of the Code
comes into the picture only when a party dies during
the pendency of the suit. The only course open to the
appellant in law was to file an application for
impleadment to bring on record the legal
representatives of deceased defendant no. 7 under Order
1 Rule 10 of the Code. Hence, the order passed by the
trial Court on the application filed under Order 22
Rule 4 of the Code, dated 09.09.2009, will not act as
res-judicata.
9. Order 1 Rule 10 of the Code enables the Court to
add any person as a party at any stage of the
proceedings, if the person whose presence in Court is
necessary in order to enable the Court to effectively
and completely adjudicate upon and settle all the
questions involved in the suit. Avoidance of
multiplicity of proceedings is also one of the objects
13
of the said provision. Order 1 Rule 10 of the Code
empowers the Court to substitute a party in the suit
who is a wrong person with a right person. If the
Court is satisfied that the suit has been instituted
through a bona fide mistake, and also that it is
necessary for the determination of the real matter in
controversy to substitute a party in the suit, it may
direct it to be done. When the Court finds that in the
absence of the persons sought to be impleaded as a
party to the suit, the controversy raised in the suit
cannot be effectively and completely settled, the Court
would do justice by impleading such persons. Order 1
Rule 10(2) of the Code gives wide discretion to the
Court to deal with such a situation which may result in
prejudicing the interests of the affected party if not
impleaded in the suit, and where the impleadment of the
said party is necessary and vital for the decision of
the suit.
10. In the case of Vijay Kumar Motilal Mirakhanwala
(supra), a bench by majority held that the legal
14
representatives of a party can be added under Order 1
Rule 10 of the Code, but the date on which they were
impleaded shall be the date on which the suit was
instituted by or against them. In the said matter,
this Court on facts held that the suit was barred by
limitation as per Section 22 of the Limitation Act of
1908. This Court, though it concluded that the Court
has got the power to join a particular person as a
party under Order 1 Rule 10 of the Code, did not
interfere in the matter imasmuch as this Court found
that the suit was barred by limitation. It is relevant
to note that the said suit was of the year 1958. Since
the Limitation Act, 1963 (now in force) was at that
time not in existence, this Court applied the old
limitation law and held that the suit was barred by
limitation. As of now, the proviso to Section 21(1) of
the Limitation Act 1963 empowers the Court to direct
that the suit shall be deemed to have been instituted
on an earlier date, where the omission to include a new
plaintiff or defendant was due to a mistake made in
15
good faith. Therefore, it is open to the plaintiff in
the matter on hand to prove “good faith” on his part in
not including the legal representatives of deceased
defendant no. 7, during the course of trial of suit.
11. It would be relevant to note that in the Case of
Bhagwan Swaroop and Ors. vs Mool Chand and Ors., 1983
(2) SCC 132, this Court observed thus:
“4. It is true that it was incumbent
upon the appellants to implead the
heirs and legal representatives of
deceased respondent 1 in time. It is
equally true that the appellants were
negligent in moving the proper
application. We would not question the
finding of the High Court that
appellants 2, 3 and 4 knew about the
death of the deceased respondent 1.
This being a suit for partition of
joint family property, parties are
closely interrelated and it is
reasonable to believe that at least
some of the appellants must have
attended the funeral of deceased
respondent 1, as contended on behalf
of the contesting respondent 2. There
is some force in the contention that
when a specific provision is made as
provided in Order 22, R. 4, a resort
to the general provision like Order 1,
Rule 10 may not be appropriate. But
the laws of procedure are devised for
advancing justice and not impeding the
16
same. In Sangram Singh v. Election
Tribunal, Kotah (AIR 1955 SC 425), this
Court observed that a code of
procedure is designed to facilitate
justice and further its ends; not a
penal enactment for punishment and
penalties; not a thing designed to
trip people up. This was reaffirmed in
Kalipar Das v. Bimal Krishna Sen(1983)
1 SCC 14.
5. In a suit for partition, the
position of plaintiffs and defendants
can be interchange-' able. It is that
each adopts the same position with the
other parties. Other features which
must be noticed are that the appeal
was filed somewhere in 1972. It has
not come up for hearing and the matter
came on Board only upon the
application of the second respondent
intimating to the Court that the 1st
respondent had died way back and as
his heirs and legal representatives
having not been substituted, the
appeal has abated. Wheels started
moving thereafter. Appellants moved an
application for substitution. The
matter did not end there. Heirs of
deceased respondent 1 then moved an
application for being brought on
record. If the application had been
granted, the appeal could have been
disposed of in the presence of all the
parties. The difficulty High Court
experienced in granting the
application disclosed with great
respect, a hyper-technical approach
which if carried to end may result in
miscarriage of justice. Who could have
made the most serious grievance about
17
the failure of the appellants to
substitute the heirs and legal
representatives of deceased respondent
1? Obviously the heirs of deceased
respondent 1 were the persons vitally
interested in the outcome of the
appeal. They could have contended that
the appeal against them has abated and
their share has become unassailable.
That is not their case. They on the
contrary, want to be impleaded and
substituted as heirs and legal
representatives of deceased respondent
1. They had absolutely no grievance
about the delay in bringing them on
record. It is the second respondent
who is fighting both the appellants
and the 1st respondent who wants to
derive a technical advantage by this
procedural lapse. If the trend is to
encourage fairplay in action in
administrative law, it must all the
more inhere in judicial approach. Such
applications have to be approached
with this view whether substantial
justice is done between the parties or
technical rules of procedure are given
precedence over doing substantial
justice in Court. Undoubtedly, justice
according to law; law to be
administered to advance justice.”
12. This Court in the case of Karuppaswamy and Ors. vs
C. Ramamurthy, 1993 (4) SCC 41 has permitted the
plaintiff to modify the application filed by him under
Order 22 Rule 4 of the Code to make it an application
18
under the provisions of Sections 151 and 153 of the
Code. In the said matter also the suit was filed
against a dead person. This Court proceeded further to
conclude that the plaintiff has shown good faith as
contemplated under Section 21(1) of Limitation Act and
hence the impleadment of the legal
representatives/heirs must date back to the date of the
presentation of the plaint. In the said matter, it was
observed thus:
“4. A comparative reading of the
proviso to Sub-section (1) shows that
its addition has made all the
difference. It is also clear that the
proviso has appeared to permit
correction of errors which have been
committed due to a mistake made in
good faith but only when the court
permits correction of such mistake. In
that event its effect is not to begin
from the date on which the application
for the purpose was made, or from the
date of permission but from the date
of the suit, deeming it to have been
correctly instituted on an earlier
date than the date of making the
application. The proviso to
Sub-section (1) of Section 21 of the
Act is obviously in line with the
spirit and thought of some other
provisions in Part III of the Act such
as Section 14 providing exclusion of
19
time of proceeding bona fide in court
without jurisdiction, when computing
the period of limitation for any suit,
and Section 17(1) providing a
different period of Limitation
starting when discovering a fraud or
mistake instead of the commission of
fraud or mistake. While invoking the
beneficent proviso to Sub-section (1)
of Section 21 of the Act an averment
that a mistake was made in good faith
by impleading a dead defendant in the
suit should be made and the court must
on proof be satisfied that the motion
to include the right defendant by
substitution or addition was just and
proper, the mistake having occurred in
good faith. The court's satisfaction
alone breaths life in the suit.
5. It is noteworthy that the trial
court did not attribute any neglect or
contumacy to the conduct of the
plaintiff-respondent. It was rather
observed that the plaintiff could have
known the date of the death of the
first defendant only by the counter
filed to IA 265 of 1975. Normally, if
he had known about the date of death
of the defendant, he would have filed
the suit in the first instance against
his heirs and legal representatives.
The trial court has also opined that
the plaintiff was ignorant as to such
death and that is why he filed IA 265
of 1975 under Order 22 Rule 4 of
C.P.C. The High Court too has recorded
a finding that there was nothing to
show that the plaintiff was aware of
the death of the first defendant and
yet knowing well about it, he would
20
persist in filing the suit against a
dead person. In conclusion, the
learned Single Judge held that since
plaintiff respondent had taken prompt
action it clearly showed that he had
acted in good faith. Thus the High
Court made out a case for invoking the
proviso to Sub-section (1) of Section
21 of the Act in favour of the
plaintiff-respondent. Sequally, the
High Court found no difficulty in
allowing IA 785 of 1975 permitting
change of the provision whereunder IA
265 of 1975 was filed and in allowing
IA 265 of 1975 ordering the suit
against the heirs and legal
representatives of defendant 1 to be
dating back to 14.11.74, the date on
which the plaint was originally
presented.”
(underlining is
ours)
13. In the Case of Banwari Lal vs Balbir Singh, 2016
(1) SCC 607, defendant no. 1, (who was respondent no. 1
in the first appeal) had expired 2 years prior to the
decision in the first appeal, but no steps were taken
to bring his legal representatives on record. The
first appellate Court decided in favour of the
plaintiff. When the matter came up in second appeal,
the legal representatives of defendant no. 1 filed an
21
application for condonation of delay and restoration.
This Court though observed that the application ought
to have been filed under Order 22 Rule 4 of the Code
inasmuch as the death had occurred during the
subsistence of the matter before the Court and the
application under Order 1 Rule 10 of the Code was not
maintainable, had proceeded to allow the application on
the ground that it would be unjust to non-suit the
applicant on the ground of technicalities. This Court
permitted the legal representatives of defendant No. 1
to convert the application into one filed under Order
22 Rule 4 of the Code.
In the cases relied upon by the respondents, viz.,
Jayalaxmi Janardhan Walawalkar (supra) and in the case
of Madhukar Ramachandra Keni (supra), the death had
occurred during the pendency of the matter and
consequently the suit stood abated. The case of Arora
Enterprises (supra) is also not applicable as it deals
with the finality of an abatement order. In that
context, the Courts have concluded that the only course
22
open to the plaintiff/appellant in case if the death
occurs in a pending matter, is to file an application
under Order 22 Rule 4 of the Code, and not under Order
1 Rule 10 of the Code or under Section 151 of the Code.
14. In the matter on hand, though the trial court had
rightly dismissed the application under Order 22 Rule 4
of the Code as not maintainable at an earlier point of
time, in our considered opinion, it needs to be
mentioned that the trial Court at that point of time
itself could have treated the said application filed
under Order 22 Rule 4 of the Code as one filed under
Order 1 Rule 10 of the CPC, in order to do justice
between the parties. Merely because of the nonmentioning
of the correct provision as Order 1 Rule 10
of the Code at the initial stage by the advocate for
the plaintiff, the parties should not be made to
suffer. It is by now well settled that a mere wrong
mention of the provision in the application would not
prohibit a party to the litigation from getting
justice. Ultimately, the Courts are meant to do
23
justice and not to decide the applications based on
technicalities. The provision under Order 1 Rule 10
CPC speaks about judicial discretion of the Court to
strike out or add parties at any stage of the suit. It
can strike out any party who is improperly joined, it
can add any one as a plaintiff or defendant if it finds
that such person is a necessary or proper party. The
Court under Order 1 Rule 10(2) of the Code will of
course act according to reason and fair play and not
according to whims and caprice. The expression “to
settle all questions involved” used in Order 1 Rule 10
(2) of the Code is susceptive to a liberal and wide
interpretation, so as to adjudicate all the questions
pertaining to the subject matter thereof. The
Parliament in its wisdom while framing this rule must
be held to have thought that all material questions
common to the parties to the suit and to the third
parties should be tried once for all. The Court is
clothed with the power to secure the aforesaid result
with judicious discretion to add parties, including
24
third parties. There cannot be any dispute that the
party impleaded must have a direct interest in the
subject matter of litigation. In a suit seeking
cancellation of sale deed, as mentioned supra, a person
who has purchased the property and whose rights are
likely to be affected pursuant to the judgment in the
suit is a necessary party, and he has to be added. If
such purchaser has expired, his legal representatives
are necessary parties. In the matter on hand, since the
purchaser of the suit property, i.e., defendant no.7
has expired prior to the filing of the suit, his legal
representatives ought to have been arrayed as parties
in the suit while presenting the plaint. As such
impleadment was not made at the time of filing of the
plaint in view of the fact that the plaintiff did not
know about the death of the purchaser, he cannot be
non-suited merely because of his ignorance of the said
fact. To do justice between the parties and as the
legal representatives of the purchaser of the suit
property are necessary parties, they have to be
25
impleaded under Order 1 Rule 10 of the Code, inasmuch
as the application under Order 22 Rule 4 of the Code
was not maintainable.
As mentioned supra, it is only if a defendant
dies during the pendency of the suit that the
provisions of Order 22 Rule 4 of the Code can be
invoked. Since one of the defendants i.e. defendant
No.7 has expired prior to the filing of the suit, there
is no legal impediment in impleading the legal
representatives of the deceased defendant No.7 under
Order 1 Rule 10 of the Code, for the simple reason that
the plaintiff in any case could have instituted a fresh
suit against these legal representatives on the date he
moved an application for making them parties, subject
of course to the law of limitation. Normally, if the
plaintiff had known about the death of one of the
defendants at the time of institution of the suit, he
would have filed a suit in the first instance against
his heirs or legal representatives. The difficulty
that the High Court experienced in granting the
26
application filed by the plaintiff under Order 1 Rule
10 of the Code discloses, with great respect, a
hyper-technical approach which may result in the
miscarriage of justice. As the heirs of the deceased
defendant no.7 were the persons with vital interest in
the outcome of the suit, such applications have to be
approached keeping in mind that the Courts are meant to
do substantial justice between the parties and that
technical rules or procedures should not be given
precedence over doing substantial justice. Undoubtedly,
justice according to the law does not merely mean
technical justice but means that law is to be
administered to advance justice.
15. Having regard to the totality of the narration made
supra, there is no bar for filing the application under
Order 1 Rule 10, even when the application under Order
22 Rule 4 of the Code was dismissed as not maintainable
under the facts of the case. The legal heirs of the
deceased person in such a matter can be added in the
array of parties under Order 1 Rule 10 of the Code read
27
with Section 151 of the Code subject to the plea of
limitation as contemplated under Order 7 Rule 6 of the
Code and Section 21 of the Limitation Act, to be
decided during the course of trial.
In view of the above, the impugned judgment of the
High Court is set aside. The appeal is allowed. The
Trial Court is directed to implead the legal
representatives of deceased defendant no. 7 and bring
them on record, subject to the plea of limitation as
contemplated under Order 7 Rule 6 of the Code, as well
as under Section 21 of the Limitation Act, 1963, to be
decided during the trial.
.…..…………………………………….J.
[ARUN MISHRA]
………………………………………….J.
[MOHAN M. SHANTANAGOUDAR]
NEW DELHI;
October 3, 2017.

i) Whether the second respondent is guilty of willful and deliberate disobedience to the order dated 22-12-2015 passed by this Court in W.P.M.P.No.53654 of 2015 in W.P.No.41555 of 2015 in terms of Section 2(b) of the Contempt of Courts Act, 1971? and ii) Whether the disposal of W.P.No.41555 of 2015 by a final order dated 24-6-2016 recording that miscellaneous petitions, pending if any, stand disposed of as infructuous would have any impact upon the interim order dated 22-12-2015 in relation to which these contempt proceedings were initiated?= In fact, if an order of suspension passed by an employer is suspended by a Court by way of an ex parte interim order, the enforcement of the said ex parte interim order would actually become irreversible. This is for the reason that if the employee is reinstated pursuant to the interim order, he can at the most be placed again under suspension, after the interim order is vacated or the writ petition is dismissed. But the salary paid to the employee during the interregnum, cannot be recovered, as the employee would have worked and earned his salary. Therefore, in a way, the enforcement of an ex parte interim stay/suspension of an order of suspension, is prone to result in irreversible consequences and the learned Senior Judge may not be right in holding that the decision in Yaqoob Khan may hold good only in cases where they become irreversible. Another important aspect is that if an interim order had attained finality then the question of hearing the vacate stay petition does not arise. Therefore, the distinction sought to be made to the decision in Yaqoob Khan cannot be accepted. Hence, on the first question referred to me for consideration, I am of the considered view that the 2nd respondent cannot be held to be guilty of wilful disobedience of the order dated 22.12.2015.; whether the disposal of the main writ petition by a final order, recording an opinion that miscellaneous petitions will stand disposed of as infructuous, would have any impact upon the interim order dated 22.12.2015 in relation to which these contempt proceedings arise.= Therefore, I am of the considered view that the last paragraph of the order of the Division Bench dated 24.06.2016 holding that the Miscellaneous Petitions pending if any, stand disposed of as infructuous, is a clear indication that the petitioner was not entitled to anything more than what was incorporated in the final order passed in the writ petition. The manner in which miscellaneous petitions were closed while disposing of the writ petition, certainly had the effect of annihilating the ex parte interim order dated 22.12.2015 and the benefits arising out of the same. Hence the 2nd respondent cannot be held guilty of wilful disobedience of the interim order dated 22.12.2015.

HONBLE SRI JUSTICE V.RAMASUBRAMANIAN          

CONTEMPT CASE No.150 of 2016    

01-09-2017

 G. Naganna, S/o. Savaranna Occ: Sub Divisional Police Officer (under suspension) Gudivada, Krishna District, R/o 2-2-12/B/1
Durgabai Deshmukh Colony, Baghamberpet,Hyderabad  500 013. Petitioner    

1.Dr. Manmohan Singh, IAS, S/o. not known, Occ: Principal Secretary,  Home Department, Sate of Andhra Pradesh, Secretariat B

Counsel for the Petitioner: Mr. T. Koteswara Rao

Counsel for Respondents 1&2: Advocate General

<Gist:

>Head Note:

? Cases referred:

1.(2014) 3 MLJ 1
2.(1992) 4 SCC 167


HONBLE SRI JUSTICE V.RAMASUBRAMANIAN          

CONTEMPT CASE NO.150 OF 2016      

JUDGMENT:  

      This contempt petition stands posted before me on
a reference made by a Division Bench of this Court, after the two learned
Judges constituting the Division Bench found themselves unable to
agree with the conclusions reached by each other. By an order dated 16-
6-2017, the Division Bench has referred the following points for
determination by
a 3rd Judge, in terms of Clause 36 of the Letters Patent:
       i) Whether the second respondent is guilty of willful
and deliberate disobedience to the order dated 22-12-2015
passed by this Court in W.P.M.P.No.53654 of 2015 in 
W.P.No.41555 of 2015 in terms of Section 2(b) of the
Contempt of Courts Act, 1971? and 
       ii) Whether the disposal of W.P.No.41555 of 2015
by a final order dated 24-6-2016 recording that
miscellaneous petitions, pending if any, stand disposed of
as infructuous would have any impact upon the interim
order dated 22-12-2015 in relation to which these contempt
proceedings were initiated?

      2. I have heard Mr. T.Koteswara Rao, learned counsel appearing
for the petitioner and the learned Advocate General for the State of
Andhra Pradesh.
      3. A brief background of facts may be necessary for answering the
points referred to me for an opinion. They are as follows:
      (i) The petitioner who was working as a Sub Divisional Police
Officer was served with two orders, both dated 07-10-2014, transferring
him to a different place and placing him under suspension.
      (ii) The petitioner challenged the order of suspension before the
A.P. Administrative Tribunal in O.A.No.6108 of 2014. While ordering
notice in the application, the Tribunal granted an interim stay of the order
of suspension.
      (iii) When the State filed an application for vacating the interim
order and the petitioner filed a contempt application alleging wilful
disobedience of the order of interim stay, the Tribunal thought fit to take
up the original application itself for disposal. Accordingly, by an order
dated 01-10-2015, the Tribunal disposed of the said application merely
with a direction to the respondents to review the suspension of the
applicant and to pass appropriate orders for his reinstatement within six
weeks.
      (iv) Not satisfied with the said order of the Tribunal, the petitioner
filed a writ petition in W.P.No.41555 of 2015 on the file of this Court,
challenging merely the order of the Tribunal. But along with the writ
petition, the petitioner filed a miscellaneous application seeking an
interim suspension not only of the order of the Tribunal but also of the
order of suspension and further seeking a direction to the respondents to
reinstate him into service.
      (v) While ordering notice in the writ petition, a Division Bench of
this Court passed an ex parte interim order on 22-12-2015 to the following
effect:
       Interim suspension as prayer for.
      (vi) Contending that the interim order passed on 22-12-2015 was
not obeyed, the petitioner filed the above contempt petition in C.C.No.150
of 2016. The contempt petition appears to have been filed on 25-01-2016
as seen from the rubber stamp on the docket sheet.
      (vii) The State came up with a petition for vacation of the interim
order in W.V.M.P.No.452 of 2016. It appears that the vacate stay petition
was filed on 08-02-2016.
      (viii) Though an endeavour is said to have been made, to have the
stay petition, the vacate stay petition as well as the contempt petition
heard together, it was not successful. Therefore, the writ petition, the stay
petition and the vacate stay petition proceeded on one track and the
contempt petition proceeded on a different track.
      (ix) Eventually, the main writ petition itself was disposed of by a
final order dated 24-6-2016, on the basis of the submission made by the
learned Advocate General that the suspension of the petitioner will be
revoked, on the understanding that the petitioner will participate in the
enquiry.
      (x) Pursuant to the disposal of the writ petition on 24-6-2016 in the
manner as aforesaid, on the basis of a consensus reached between the
parties, the petitioner was also reinstated on 27-6-2016.
      (xi) Nevertheless, the above contempt was pursued by the
petitioner on the ground that the ex parte interim order granted
22.12.2015 was not obeyed and the pay and allowances for the period
from 22-12-2015 till the date of reinstatement, namely, 27-6-2016 were not
paid.
       (xii) The above contempt petition was heard by two Honble
Judges, one of whom namely Sri Justice U.Durga Prasad Rao was  
actually a party to the ex parte interim order passed on 22-12-2015.
      (xiii) While the Senior Judge constituting the Bench, who was not
a party to the ex parte interim order which led to the above contempt case,
held the 2nd respondent guilty of contumacious conduct, Sri Justice
U.Durga Prasad Rao who was a party to the ex parte interim order held
the respondents not guilty of contempt. In view of such divergence of
opinion, the matter has been referred to me under Clause 36 of the
Letters Patent, on the questions which I have extracted earlier.
      4. Since specific questions have been referred to me by the
Division Bench for my opinion, it is enough if I confine the discussion to
the questions referred.
Question No.1:
        5. The first question referred for my opinion is whether the 2nd
respondent is guilty of wilful disobedience of the order dated 22.12.2015
in terms of Section 2(b) of the Contempt of Courts Act, 1971.
        6. Section 2(b) of the Contempt of Courts Act, 1971 defines civil
contempt to mean wilful disobedience to any judgement, decree,
direction, order, writ or other process of Court or wilful breach of an
undertaking given to a Court. The wilful disobedience alleged against the
2nd respondent is the failure to reinstate the petitioner into service
pursuant to the interim order passed on 22.12.2015. Since the interim
order cannot be seen in isolation, it is necessary to see (1) the relief
prayed for in the writ petition; (2) the relief sought in the miscellaneous
petition; and (3) the interim order passed on 22.12.2015.
        7. As I have pointed out earlier, the relief sought in the writ petition
was only to set aside the order of the Tribunal. The prayer in
W.P.No.41555 of 2015 reads as follows:
For the reasons stated in the accompanying affidavit, it is
hereby prayed that this Honble Court may be pleased to
issue any writ, order or direction more particularly in the
nature of CERTIORARI calling the records in connection
with the order dated 01.10.2015 in the O.A.No.6108 of
2014 on the file of the Honble Andhra Pradesh
Administrative Tribunal at Hyderabad, after examining the
same declare the said orders are not sustainable in law as
the Honble Tribunal gravely erred in disposing the OA
without considering the material averments of the petitioner
and also disposed the OA without giving reasons in support
of their decision and by setting aside the same, allow the
OA as prayed for and to pass such other order or orders as
this Honble Court may deems fit just and proper in the
circumstances of the case.

        8. Since the only prayer made in the main writ petition is to quash
the order of the Tribunal, let me see what the order of the Tribunal was.
The operative portion of the order of the Tribunal reads as follows:
Keeping in view the grave allegations against the applicant
and keeping in view the fact that the impugned orders of
suspension were issued on 07.10.2014, the respondents
are directed to review the suspension of the applicant and
pass appropriate orders for his reinstatement, within a
period of six weeks from the date of receipt of a copy of
this order.

        9. Therefore, even if we assume that the writ petition would have
been allowed in favour of the petitioner herein, the same would have
resulted only in the aforesaid order of the Tribunal being set aside and
the Original Application being allowed. The allowing of the Original
Application would have meant the setting aside of the order of
suspension. Therefore, till the writ petition was allowed as prayed for and
the order of the Tribunal set aside and the Original Application being
allowed as a consequence, the right of the petitioner to seek
reinstatement could not be said to have fructified in absolute terms.
        10. Having seen the prayer made in the main writ petition, let me
now take a look at the interim relief sought in the W.P.M.P.No.53654 of
2015 in W.P.No.41555 of 2015. The prayer made in this miscellaneous
petition is as follows:
Petition under Section 151 of C.P.C. praying that in the
circumstances stated in the affidavit filed in the W.P., the
High Court may be pleased to suspend the orders of the
Honble Andhra Pradesh Administrative Tribunal dated
01.10.2015 in the O.A.No.6108 of 2014 along with
suspension orders Rc.No.384/02/2014, dated 07.10.2014
impugned in the O.A.No.6108 of 2014 with a direction to
the respondents to reinstate the petitioner immediately in
the post which he was holding prior to the issuance of
suspension orders with all consequential benefits pending
disposal of W.P.No.41555 of 2015 on the file of the High
Court.

        11. As rightly pointed out by the learned Advocate General, the
prayer in W.P.M.P.No.53654 of 2015 comprises of three parts, viz., (1) to
suspend the final order of the Tribunal dated 01.10.2015; (2) to suspend
the order of suspension dated 07.10.2015; and (3) to direct the
respondents to reinstate the petitioner immediately in the post which he
was holding.
        12. Despite the fact that there were three components to the interim
relief sought by the petitioner, the only order passed ex parte on
22.12.2015 was interim suspension as prayed for. There was no interim
direction to reinstate. In a contempt petition a person cannot be heard to
contend that the respondents are obliged to understand the true spirit of
the interim order by going beyond the language used in the petition itself.
If an interim order gives scope for two different views or at least a scope
for some degree of lack of clarity, it is not open to the Court to invoke the
contempt jurisdiction.
        13. As I have indicated in the timeline of events, the interim order
was granted by this Court on 22.12.2015, the Contempt petition was filed
on 25.01.2016 and a vacate stay petition was filed on 08.02.2016. In all
fairness, the vacate stay petition should have been taken up first before
deciding the contempt. No party to a proceeding can be held to ransom
with ex parte interim orders, especially when an application for vacating
the interim order was already on file.
        14. As a matter of fact, clause (3) of Article 226 of the Constitution
imposes an obligation upon the High Court to dispose of an application
for vacation of an interim order within two weeks failing which, the interim
order will stand automatically vacated. Clause (3) of Article 226 reads as
follows:
Where any party against whom an interim order, whether
by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under
clause (1), without
(a) furnishing to such party copies of such petition and all
documents in support of the plea for such interim order;
and
(b) giving such party an opportunity of being heard,
Makes an application to the High Court for the vacation of
such order and furnishes a copy of such application to the
party in whose favour such order has been made or the
counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on
which it is received or from the date on which the copy of
such application is so furnished, whichever is later, or
where the High Court is closed on the last day of that
period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so
disposed of, the interim order shall, on the expiry of that
period, or, as the case may be, the expiry of the said next
day, stand vacated.

        15. Though the High Courts of Kerala, Allahabad and Gujarat have
taken the view that Article 226 (3) is mandatory and I have had an
occasion to hold it only as directory, in a decision reported in Dr. T.
Gnanasambanthan v. Board of Governors , the principle behind Article
226 (3) has to be kept in mind while dealing with a contempt petition. To
tell the respondent in a writ petition that his vacate stay petition will not be
heard unless and until the contempt is purged, would tantamount to
wielding a stick beyond the permissible limits.
        16. The learned Advocate General rightly relied upon the decision
of the Supreme Court in State of J & K v. Mohd. Yaqoob Khan ,
wherein the Supreme Court held that the High Court should have first
taken up the stay matter without any threat to the respondents of being
punished for contempt. The learned Judge, who held the 2nd respondent
guilty of contumacious conduct, distinguished the decision in Mohd
Yaqoob Khan on the ground that the reinstatement of the petitioner
pursuant to the interim order dated 22.12.2015 would not have become
either final or irreversible. But I do not think that Yaqoob Khan allows of
such a distinction.
      17. In fact, if an order of suspension passed by an employer is
suspended by a Court by way of an ex parte interim order, the
enforcement of the said ex parte interim order would actually become
irreversible. This is for the reason that if the employee is reinstated
pursuant to the interim order, he can at the most be placed again under
suspension, after the interim order is vacated or the writ petition is
dismissed. But the salary paid to the employee during the interregnum,
cannot be recovered, as the employee would have worked and earned  
his salary. Therefore, in a way, the enforcement of an ex parte interim
stay/suspension of an order of suspension, is prone to result in
irreversible consequences and the learned Senior Judge may not be right
in holding that the decision in Yaqoob Khan may hold good only in cases
where they become irreversible.
      18. Another important aspect is that if an interim order had attained
finality then the question of hearing the vacate stay petition does not
arise. Therefore, the distinction sought to be made to the decision in
Yaqoob Khan cannot be accepted. Hence, on the first question referred to
me for consideration, I am of the considered view that the 2nd respondent
cannot be held to be guilty of wilful disobedience of the order dated
22.12.2015.
Question No.2:
        19. The second question that was referred to me for opinion is
whether the disposal of the main writ petition by a final order, recording
an opinion that miscellaneous petitions will stand disposed of as
infructuous, would have any impact upon the interim order dated
22.12.2015 in relation to which these contempt proceedings arise.
        20. In order to find an answer to this question, it is necessary to
take note of the manner in which the main writ petition was disposed of.
The main writ petition W.P.No.41555 of 2015 was disposed of by a final
order dated 24.06.2016, along with another writ petition arising out of the
dismissal of a challenge to the charge memo. The common order dated
24.06.2016 passed in both the writ petitions reads as follows:
       "These two writ petitions arise out of Common
Order, dated 01.10.2015, in O.A.Nos.6108 of 2014 and
1685 of 2015, on the file of the Andhra Pradesh
Administrative Tribunal, Hyderabad (for short the Tribunal).
        Having regard to the manner in which the Writ
Petitions are proposed to be disposed of, it is not necessary
to refer to the facts in detail. However, it will suffice to note
that the above mentioned O.As were filed by the writ
petitioner feeling aggrieved by the issuance of charge
memo and the order of suspension in pursuance of the
disciplinary proceedings initiated against him. While
dismissing O.A.No.1685 of 2015, filed questioning the
charge memo, the Tribunal has, however, issued direction
to the respondents in O.A.No.6108 of 2014, filed
questioning the suspension order, to pass appropriate
orders for reinstatement of the petitioner.
        After arguing the case at length, the learned
Advocate General for the State of Andhra Pradesh fairly
submitted that he ill advise the respondents to revoke the
suspension order immediately and post the petitioner at
appropriate place of their choice.
       Mr. T. Koteswara Rao, leanred Counsel for the
petitioner, submitted that having regard to the submission
made by the learned Advocate General the suspension
order of his client will be immediately revoked, his client will
participate in the enquiry as per the impugned charge
memo.
       Having regard to the above consensus arrived at
between the parties the necessity of disposing of the Writ
Petitions on merits is obviated.
       The Writ Petitions are, accordingly, disposed of by
placing on record the submissions of the learned Advocate
General as well as the learned Counsel for the petitioner.

        21. A perusal of the aforesaid order would show that the writ
petition arising out of the order of suspension, was not decided on merits,
but decided on a concession given by the learned Advocate General,
which was accepted by the learned counsel for the petitioner. In the
penultimate paragraph of the order extracted above, the Bench has
recorded the consensus arrived at between the parties.
        22. The normal rule is that an interim order would merge with a
final order. If an interim order is granted and the writ petition is allowed,
the interim order becomes absolute or assumes larger connotations, as
the case may be. If an interim order is granted and the writ petition is
eventually dismissed, the interim order gets vacated. In cases where an
interim order is enforced by invoking the contempt jurisdiction and the writ
petition is eventually dismissed, the situation may become irreversible
and the petitioner would have gained an advantage that he did not
deserve. In cases where restitution is possible, the respondents could be
compensated. But in service matters, restitution may not be possible in
the sense that the employee cannot be asked to refund the pay and
allowances received by him, upon the enforcement of the interim order.
Therefore, the Courts may have to be cautious while invoking contempt
jurisdiction in cases where the coercive implementation of ex parte
interim orders would lead to irreversible consequences or consequences
that may confer an unintended benefit upon the petitioner or an undue
hardship to the respondents.
        23. As I have pointed out earlier, the writ petition filed by the
petitioner, challenging the order of the tribunal, was not allowed on
merits, setting aside the order of suspension. The final order passed in
the writ petition, was based upon, a consensus reached between the
parties. Once the parties to a litigation have arrived at a consensus at the
time of final hearing of the suit or writ petition, it must be construed as a
normal rule that the benefits arising out of the interim order if any, were
foregone.  If the beneficiary of an interim order wanted to retain the
benefit of the interim order even while accepting a compromise, he
should have made it clear. The consensus reached before the Division
Bench at the time of final hearing of W.P.No.41555 of 2015, is final and
conclusive between the parties and unless the petitioner had taken care
to ensure that the final order dated 24.06.2016 ensured the release of pay
and allowances for the period from 22.12.2015 upto 24.06.2016, the
petitioner cannot fall back upon the ex-parte interim order and seek to
derive an extra benefit through the contempt petition over and above
what was agreed by consensus.  
        24. To allow the contempt petition, thereby enabling the petitioner
to get the pay and allowances for the period from 22.12.2015 upto
24.06.2016 would tantamount to conferring a benefit that goes beyond
the consensus reached at the time of final hearing. Therefore, I am of the
considered view that the last paragraph of the order of the Division Bench
dated 24.06.2016 holding that the Miscellaneous Petitions pending if
any, stand disposed of as infructuous, is a clear indication that the
petitioner was not entitled to anything more than what was incorporated
in the final order passed in the writ petition. The manner in which
miscellaneous petitions were closed while disposing of the writ petition,
certainly had the effect of annihilating the ex parte interim order dated
22.12.2015 and the benefits arising out of the same. Hence the 2nd
respondent cannot be held guilty of wilful disobedience of the interim
order dated 22.12.2015.
      25. In fine the questions referred to me by the Division Bench are
answered as follows:
      1) The 2nd respondent is not guilty of wilful disobedience of the ex
parte interim order dated 22.12.2015;
      2) The final order dated 24.06.2016 passed on consensus in the
writ petition, closing the miscellaneous petitions if any, as infructuous,
had the effect of neutralising the interim order and the benefit arising
therefrom;
      26. As a result, the 2nd respondent should be discharged and
accordingly he is discharged.
_________________________  
V.RAMASUBRAMANIAN, J.    
1st September, 2017.