THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NO.5270 OF 2009 O R D E R: This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the order, dated 29.09.2009 in I.A.No.721 of 2008 in I.A.No.569 of 1997 in O.S.No.69 of 1994 on the file of the Senior Civil Judge, Madanapalle, whereunder and whereby the application filed under Order I Rule 10 read with Section 151 and Order XXII Rule 10 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) to add respondent No.1/petitioner as third petitioner in I.A.No.569 of 1997 in O.S.No.569 of 1984 and to allow him to prosecute the litigation, was allowed permitting respondent No.1 herein to come on record as third petitioner in I.A.No.569 of 1997 on payment of costs of Rs.500/- payable on or before 12.10.2009. 2. The brief facts are the petitioner/plaintiff filed Original Suit No.69 of 1998 on the file of the Senior Civil Judge, Madanapalle, Chittoor for specific performance of agreement of sale dated 25.04.1974 executed by the defendants. The suit was decreed ex parte on 14.10.1995. He filed Execution Petition No.17 of 1996 wherein the trial court engrossed the sale deed on stamp paper on 20.11.1998. Mean while, the defendants 1 and 2 filed Interlocutory Application No.569 of 1997 under Order IX Rule 13 CPC for setting aside the ex parte decree, along with an Interlocutory Application No. 27 of 1996 under Section 5 of the Limitation Act, 1963 to condone delay in filing the application. Subsequently, both the defendants died. The applications filed by alleged legal representatives of deceased defendants to come on record were dismissed on merits and the orders passed in the applications have become final, and the proceedings in Interlocutory Application No.569 of 1997 became abated. On 22.10.2007, Interlocutory Application No.1127 of 2004 filed by one K.Suresh Babu under Order XXII Rule 3 CPC to implead him as a legal representative of the deceased defendant No.2, was dismissed. Unnumbered petition was filed on 10.12.2007 to bring one B.Lakshmi Devi and others as legal representatives of the deceased defendant No.1, which is still pending. Thereafter, the first respondent herein claiming to be legatee of deceased first defendant, filed Interlocutory Application No.220 of 2008 to come on record in the suit as his legal representative, and the said petition was dismissed on merits. Thereafter, he filed the present Interlocutory Application No.721 of 2008 to add him as third petitioner in I.A.No.569 of 1997 in O.S.No.569 of 1984 and to allow him to prosecute the litigation, which was allowed vide the impugned order, permitting him to come on record as third petitioner in I.A.No.569 of 1997 on payment of costs of Rs.500/-. 3. Late Kanala Ramaiah, who is defendant No.1 and grand father of respondent No.1 herein, executed a Will Deed on 22.01.1996 bequeathing the landed property in favour of respondent No.1. Though the petitioner herein/plaintiff came to know about the Will, he did not implead respondent No.1 herein as a party to the suit. Respondent No.1 filed I.A.No.220 of 2008 to bring him as a party to the suit. The Petitioner herein contended that the petition is not maintainable because the suit is already decreed. He also contended that I.A.No.569 of 1997 filed by Late Kanala Ramaiah and Kala Anjaneyulu is still pending. As such the petitioner is a necessary party to the said petition. Without impleading this petitioner, the said I.A. cannot be disposed of. The petitioner filed the original Will as well as the pattadar pass book would clearly go to show his right over the property. The petitioner being the grand son of Kanala Ramaiah, he is a necessary party to the proceedings. 4. Both the counsel relied upon decisions which will be referred to at appropriate stage. 5. The main contention of the learned counsel for the petitioner is that unless the legal representatives file an application under Order XXII Rule 10 CPC, which is appropriate provision, they cannot be impleaded under the clothe of Order I Rule 10 CPC and the impugned order is liable to be set aside. 6. On the other hand, learned counsel for respondent No.1 contended that the power to implead a party under Order I Rule 10 CPC is discretionary and the trial Court exercised its discretion basing on the material available on record. He also contended that exercising the powers under Article 227 of the Constitution of India, error of fact or law cannot be corrected and therefore, he prays to dismiss the Civil Revision Petition. 7. The primary object of enacting Order I Rule 10 C.P.C. is to bring before the Court, at one and the same time, all the persons interested in the dispute so that all the controversies in the suit may be finally determined once for all in the presence of all the parties without delay, inconvenience and expenses of several actions, trials and inconclusive adjudication. But, the person who wants to invoke aid of the said provision, must show some semblance of right over the property in dispute. 8. Respondent No.1 herein wanted to come on record as a legatee of the Will said to have been executed by defendant No.1. If a person wants to come on record as a legal representative of a deceased person, such a person has to invoke the provision under Order XXII Rule 10 CPC. Even a party, who does not have any knowledge can explain the reason satisfactorily for not coming on record, even if there was delay in setting aside the abatement. When there is a specific procedure prescribed for bringing on record the legal representatives of the deceased, the general provision under Order I Rule 10 CPC cannot be invoked. The word ‘legal representative’ is defined under Section 2(11) CPC, which consists of two parts and reads as follows: 1) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased; and 2) where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.” So, the case of respondent No.1 herein falls under first part of the definition, as he is representing the estate of the deceased person by virtue of a Will said to have been executed by deceased defendant No.1 in favour of respondent No.1. When a person falls within the ambit and scope of Section 2(11) CPC, necessarily he has to invoke the provision under Order XXII Rule 10 CPC so as to bring him as a legal representative of the deceased person. For that proposition, the learned counsel for the petitioner relied upon a decision reported in Morasa Anjaiah V. Kondragunta Venkateswarlu (Died) [1], wherein it was held thus: “Sri Suresh Kumar, learned counsel appearing for the petitioner, relies on some what different judgment of Sen, J., in Bhagwan Swaroop Vs.Mool chan. The leading judgment was rendered by Desaid., who observed: there is some force in the contention that when a specific provision is made as provided in O.22, R.4, a resort to the general provision like O.1, r.10, may not be appropriate. But the laws of procedure are devised for advancing justice and not impeding the same. In Sangram Singh Vs. Election Tribunal Kotah, (1955)2 SCR 1: (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 Kalipur Das V.Bimal Krishna Sen, (1983) 1 SCC 14” From the above decision, it is clear that when a specific provision is contained in Order XXII CPC, without availing the provisions contained in Order XXII CPC, respondent No.1 cannot circumvent and file an application under Order I Rule 10 CPC to implead him as a party. 9. No doubt, Order I Rule 10 CPC goes along with Order XXII CPC. But, at the same time, quoting of a wrong provision by itself is not a ground for dismissing the application or for not granting the relief. But, at the same time, even if the application filed by respondent No.1 herein is to be construed as an application under Order XXII Rule 10 CPC, that cannot be accepted, because there was an abnormal delay in filing a petition to set aside the abatement. A petition to condone the delay is not filed. Therefore, firstly; respondent No.1 has to file an application under Section 5 of the Limitation Act 1963, secondly; he has to file an application to set aside the abatement; and thirdly; he has to file an application to implead him as a legal representative of the deceased party under Order XXII Rule 10 CPC. Mere filing of an application under Order XXII Rule 10 CPC by itself is not maintainable, as the application is not filed within the law of limitation prescribed. 10. Learned counsel for the petitioner also relied a decision reported in K.Ramanjaneyulu V. S.Abul Rahiman and others (2005(6) ALD 8 wherein it was held thus: “It is no doubt true that no hard and fast rule can be laid down in this regard that under no circumstances the parties having interest in the subject-matter of the suit can be brought on record, merely, because such parties were not brought on record as legal representatives of one of the deceased parties who had been already on record. No doubt this would depend upon the facts and circumstances of a particular given case. If a party is having interest in the subject matter of the suit who may be incidentally the legal representative of one of the deceased parties, if he intends to come on record to safeguard his interest in the subject-matter of the litigation, the Court may have to cosier such an application. It is also pertinent to note that to avoid multiplicity of litigation in the interests of justice in certain actions parties having interest in subject-matter of litigation to be permitted to come on record in the interests of justice to effectively adjudicate the questions in controversy and to dispose of the matter. But, this principle cannot be extended to all types of cases, it would depend upon on facts and circumstances of a particular given case. Be that as it may, this is a case where reliefs prayed for are declaration and mandatory injunction, and the 2nd defendant is no more. There is some factual controversy about the knowledge of the death and the legal representatives not being brought on record within the time. This Court is not inclined to go into these aspects at this stage. In view of the fact that the plaintiff moved the present application to bring one of the legal representatives incidentally a general power of attorney holder representing other legal representatives of the deceased Subba Rao, the impugned order cannot be found fault in any way. However, it is made clear that if the proposed party claiming independent interest in the subject-matter of the litigation intends to come on record by moving appropriate application, the learned Judge is at liberty to consider the same depending upon the merits and demerits while disposing of such application if any. Except making this observation, no other relief can be granted in the present civil revision petition.” From the above decision, it is clear that impleading a third party to the suit invoking Order I Rule 10 CPC is not permissible when there is a specific provision under the Code. Therefore, the petition under Order I Rule 10 CPC ought not to have been allowed by the trial Court. The remedy in the facts and circumstances of the case available to respondent No.1 is to invoke the provisions contained in Order XXII CPC. 11. However, learned counsel for the respondent No.1 contended the power of the High Court under Article 227 of the Constitution of India cannot be exercised so as to review or appreciate the evidence as if sitting in appeal and it cannot be exercised even to correct the error of fact or law. In support of his contention, he relied upon a decision reported in Satyanarayan Laxminaraya Hedge and others V. Mallikarju Bhavanappa Tirumale[2] wherein it was held thus: “However wide it Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that Section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by the High Court in revision under Section 115 of the Code of Civil Procedure or under Article 227.” 12. The learned counsel for the respondent no.1 also relied on a decision reported in Surya Dev Rai V. Ram Chander Rai and others[3] wherein it was held thus: “Section 115 of the Code of Civil Procedure as amended does not now permit a revision petition being filed against an order disposing of an appeal against the order of the Trial Court whether confirming, reversing or modifying the order of injunction granted by the Trial Court. The reason is that the order of the High Court passed either way would not have the effect of finally disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a case is taken away by the proviso inserted under sub-section (1) of Section 115 of the CPC. The amendment is based on the Malimath Committee’s recommendations. The Committee was of the opinion that the expression employed in Section 115 CPC, which enables interference in revision on the ground that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made, left open wife scope for the exercise of the revisional power with all types of interlocutory orders and this was substantially contributing towards delay in the disposal of cases. The Committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed. The effect of the erstwhile clause (b) of the proviso, being deleted and a new proviso having been inserted, is that the revisional jurisdiction in respect of an interlocutory order passed in a trial or other proceedings, is substantially curtailed. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. As a preclude to search for answer to the question posed it becomes necessary to recollect and restate a few well-established principles relating to the Constitutional jurisdiction conferred on the High Court under Articles 226 and 227 of the Constitution in the backdrop of the amended Section 115 of the C.P.C. Writ of Certioriari According to Corpus juris Secundum (Vol.14, page 121) certiorari is a writ issued from a superior Court to an inferior Court or Tribunal commanding the latter to send up the record of a particular case.” 13. The learned counsel for the respondent no.1 also placed reliance on a decision reported in Amit Kumar Shaw and another V.Farida Khatoon and another[4], wherein it was held thus: “In the instant case, the applications for substitution were filed by the respective appellants in the second appeals which are still pending on the file of the High Court though it was filed in the year 1993. The appellants have properly, sufficiently and satisfactorily explained the delay in approaching the Court. We see bona fide in their explanation in not coming to the Court at the earliest point of time. Therefore, the appellants who are transferees pendente lite should be made as parties to the pending second appeals as prayed for any them. In out opinion, the High Court has committed serious error in not ordering the applications for substitution filed by the appellants. In our view, the presence of the appellants are absolutely necessary in order to decide the appeals on merits. Since the High Court has committed error by rejecting the appellants’ applications for substitution treating the same as additional parties and thereby rendering the appellants non- suited. We have no hesitation in setting aside the said orders and permit the appellants to come on record by way of substitution as prayed for. The High Court proceeded on a wrong premise that the appellants had made the application for addition of party whereas the application under consideration was for substitution as the owner had sold the suit property to the appellants and had no interest in the pending litigation.” He also relied on a decision reported in Binodlal Sagarmal and others V. Prem Prakash Gupta and others.[5], wherein it was held thus: “1. The first petitioner is a firm and petitioners 2 and 3 are its partners. They are tenants of mulgi bearing No. 1-2- 174, Charkaman, Hyderabad, owned by the respondents. In 1985, the second petitioner along with two others filed a suit for specific performance of agreement of sale alleged to have been executed by one Madanlal Gupta in respect of mulgies bearing No.21-2-172, 173 and 174, Charkaman, Hyderabad. The second petitioner along with one Devakinandam filed O.S. No.2587 of 1985 (later numbered as O.S. No.307 of 1993) on the file of the IV Additional Judge, City Civil Court, Hyderabad against respondents 1 and 2 for perpetual injunction restraining them from changing the nature of the suit schedule premises. The Trial Court, by a common judgment dated 16-2-1994 decreed both the suits in favour of the petitioners. Aggrieved by the said judgment and decree respondents and others filed first appeals before this Court being C.C.C.A. Nos.39, 41, 194, 47 of 1994 and 49 of 1997. ( 2. ) While the suits were pending, respondents filed R.C. No.812 of 1987 on the file of the I Additional Rent Controller, Hyderabad seeking eviction of the petitioners on ground of wilful default. In the rent control case, the evidence of landlord was completed and was coming for evidence of respondents. This Court allowed the first appeals filed by the landlord being C.C.C.A. Nos.39, 41, 194, 47 of 1994 and 49 of 1997 by judgment dated 16-3-2002. The petitioners filed Letters Patent Appeals being LPA Nos.151, 173 and 176 of 2002 and are coming for admission before a Division Bench of this Court. At that stage, the petitioners filed LA. No.397 of 2002 contending that while the first appeals before the High Court were pending, at the request of the respondents, the High Court stayed the rent control proceedings and, therefore, during the pendency of LPAs, rent control case should be stayed. The learned I Additional Rent Controller, by an order dated 21-10-2002 dismissed IA.No.397 of 2002 holding that Section 10 of the Code of Civil Procedure, 1908 (CPC) is not applicable to the Rent Controller in view of the judgment of a Division Bench of this Court in Amrutlal v. Principal Rent Controller, 1978 (2) ALT 102. Aggrieved by this order, the tenant petitioner filed this revision petition under Article 227 of the Constitution of India. ( 3. ) Be it noted, the petitioners initially filed revision petition under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereafter called 'the Rent Act') against the order of the I Additional Rent Controller, Hyderabad in R.C. No.812 of 1997. Initially, an interim order was granted staying and Rent Control case. Subsequently this Court by an order dated 14-2-2003 while vacating the interim order gave liberty to the petitioner to convert the petition into one under Article 227 of the Constitution. ( 4. ) Learned Senior Counsel for the petitioner, Sri M.R.K. Chowdary, submits as follows. When the respondents initially filed a revision petition for staying the rent control case, during the pendency of the first appeals filed by them, this Court stayed the proceedings. However, after disposal of the first appeals by this Court, the respondents withdrew the CRP. According to the learned Counsel, as this Court already granted an order, as a necessary corollary, the Rent Controller exceeded his jurisdiction in not granting stay of the proceedings in rent control case pending on its file. Judicial Officer of the rank of the Junior Civil Judge, is posted as Rent Controller and he is under the control, supervision and superintendence of the High Court and, therefore, they do not cease to be judicial officers constituting the Court. Therefore, all the Rent Controllers are not persona designata, but they are duly constituted Courts who can exercise all powers under Section 10 CPC. 14. There is no dispute about the law laid down by the Apex Court as well as this Court with regard to exercising the power under Article 227 of the Constitution of India. This power involves a duty on the High Court to keep the inferior Courts and Tribunals within the bounds of this authority and to see that they do what their duty require and that they do it in a legal manner. It is not to be exercised to correct error of fact or law unless error is error of law on the face of record. It cannot be exercised irregularities or illegality of procedure unless such error effects the jurisdiction. Interference in case of grave dereliction of duty or flagrant violation of law or grave injustice would be done. The question is whether the trial Court exceeded its jurisdiction in passing the impugned order? The trial Court totally by-passed the mandatory provision contained in Order XXII Rule 10 CPC. When there is a specific provision to bring the legal representatives of a deceased person, the general power under Order I Rule 10 CPC cannot be invoked ordinarily, unless circumstances so warrant. There are no such circumstances warranting to implead the first respondent under Order I Rule 10 CPC. As the proposed party comes within the meaning of ‘legal representative’ of the deceased defendant No.1, necessarily he has to invoke the provisions contained in Order XXII CPC. Therefore, it is a procedural illegality committed by the trial Court, which warrants interference by this Court. Hence, the impugned order is liable to be set aside. 15. Accordingly, the Civil Revision Petition is allowed setting aside the impugned order, leaving open all the remedies available to respondent No.1 under law. There shall be no order as to costs. _______________ K.C.BHANU, J MARCH 01, 2011. YVL Note: Issue CC in three days from today. (B/o) DRK PS to KCB,J THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.5270 OF 2009 MARCH 01, 2011 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.5270 OF 2009 Between : Doodi Venkatramana ...PETITIONER A N D Bandarla Sudhakar and another …RESPONDENTS [1] 1993-ALT-1-157 [2] AIR 1960 Supreme Court 137 [3] 2003 (5) ALD 36 (SC) [4] AIR 2005 Supreme Court 2209 [5] 2003 (5) ALD 222