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1998 DIGILAW 578 (RAJ)

Dharam Singh v. Mukhtyar Singh

1998-04-24

P.C.JAIN

body1998
JUDGMENT 1. - The Legal Representatives of deceased Santa Singh, defendant, have filed this revision petition under Section 115 of the Code of Civil Procedure against the judgment dated 17.3.1997 passed by the Addl. District & Sessions Judge No. 2 , Sri Ganganagar, in Civil Appeal No. 48/1995 whereby the order passed by the learned Civil Judge (Sr. Division)-cum-Addl. Chief Judicial Magistrate, Raisingh Nagar, in Civil Original Suit No. 76/1993 dated 1.11.1994 was set aside. 2. The non-petitioner-plaintiffs filed a suit for specific performance of the contract against Santa Singh. The summons could not be served on defendant Santa Singh. The plaintiffs, therefore, moved an application for effecting a substituted service on Santa Singh. The Court allowed the application and summons to defendant Santa Singh appeared in a Newspaper on 7.4.1992. The defendant, however, did not appear. An ex-parte order was, therefore, passed against the defendant Santa Singh. It appears that an application under Order 9, R. 7, CPC was filed on 14.5.1992 for setting aside the ex-parte order dated 7.4.1992 passed against the defendant. On 22.10.1992, in Civil Misc. Case No. 55 of 1989, Mukhtyar Singh v. Santa Singh , it was recorded that Santa Singh, defendant, had died. The injunction application was, therefore, dismissed as not pressed. The plaintiffs also filed an application under Order 22, Rule 10-A, CPC on 8.2.1993. A reply to that application was filed by Dharma Singh s/o Santa Singh on 30.7.1993. Yet another application under Order 22, Rule 4(4), CPC was filed on 11.7.1994 by the plaintiffs and reply to that application was filed by Dharma Singh on 14.7.1994. The learned trial Court by its order dated 1.11.1994 dismissed the application filed under Order 22, Rule 10-A as also the application filed under Order 22, Rule 4(4), CPC and it was held that the plaintiffs knew about the date of death of Santa Singh as the order sheet dated 22.10.1992 recorded in Civil Misc. Case No. 55/89 suggested. The application filed by the plaintiffs, therefore, was held to be barred by time. It was further held that the suit automatically stood abated. Aggrieved by the above order of the trial Court, the plaintiffs preferred an appeal before the learned Addl. District and Sessions Judge no. Case No. 55/89 suggested. The application filed by the plaintiffs, therefore, was held to be barred by time. It was further held that the suit automatically stood abated. Aggrieved by the above order of the trial Court, the plaintiffs preferred an appeal before the learned Addl. District and Sessions Judge no. 2, Sri Ganganagar and the learned Appellate Court by the impugned order allowed the same and remanded the matter to the trial Court to dispose of all the applications moved under various rules of Order 22, CPC. It was mentioned that before the learned Appellate Court, an application purporting to be under Order 22, Rule 41, CPC was moved for seeking permission to file the certified copy of the FIR in which the date of death of Santa Singh has been recorded as 5.1.1993. The learned Appellate Court felt persuaded to allow the above applications and it appears that the favourable order passed in favour of the plaintiffs on the application under Order 41, Rule 27, CPC necessitated the remand of the case for adjudication of the matter on the various applications filed by the parties under various rules of Order 22, CPC. 3. I have heard learned counsel for the parties. 4. Learned Counsel for the petitioners vehemently raised.a preliminary objection regarding the maintainability of the appeal. He has submitted that the appeal filed by the plaintiffs before the learned Addl. Dist. & Sessions Judge No. 2 and which was decided by order dated 17.3.1997 was not maintainable. He has cited (1) Mitthulal v. Badri Prasad, AIR 1981 M.P. 1 : and (2) Habibur Rahman Khan v. Pooran, AIR 1966 All 353 . He has, therefore, submitted that the learned Appellate Court committed a jurisdictional error in entertaining the above appeal. 5. If this preliminary objection succeeds, the appeal of the plaintiffs will stand dismissed. 6. Learned Counsel for the non-petitioners, on the other hand, submitted that the above order shall be treated to have been passed under Order 43, Rule 1(k), CPC. He has placed reliance on a decision of this Court in Surendra Mohan Mathur v. Pyarelal Mathur, 1979 RLW 591 (DB) . 7. Learned Counsel further submitted that the application that was moved by the plaintiffs on 8.2.1993 was dismissed by the trial Court. He has placed reliance on a decision of this Court in Surendra Mohan Mathur v. Pyarelal Mathur, 1979 RLW 591 (DB) . 7. Learned Counsel further submitted that the application that was moved by the plaintiffs on 8.2.1993 was dismissed by the trial Court. In that application, the plaintiffs stated that learned Counsel for the defendant informed learned Counsel for the plaintiffs on 6.1.1993 about the death of Santa Singh. The plaintiffs, therefore, filed the above application and prayed that the Legal Representatives named in the application be taken on record. Learned Council has also submitted that the plaintiffs also submitted an application under Order 22, Rule 4(4), CPC seeking permission of the Court to exempt the plaintiffs from the necessity of substituting the Legal Representatives of defendant Santa Singh, who failed to file a written statement and absented himself from appearance before the trial Court to contest the suit filed by the plaintiffs. The trial Court by its impugned order dismissed both these applications. 8. I have considered the rival submissions. 9. In Surendra Mohan Mathur's case, 1979 RLW 591 (supra), a Division Bench of this Court held that where the suit abated against the defendant on his death and the Court refused to set aside the abatement as a result of which the suit stood dismissed, such order of refusal was held appealable. Such an order falls within the purview of Cl. (k) of Order 43, Rule 1, CPC because in the application dated 8.2.1993, the plaintiffs stated two facts. Firstly, they stated that learned Counsel for the defendant informed about the factum of death of Santa Singh on 6.1.1993 and secondly the plaintiffs requested the Court to bring on record the Legal Representatives of deceased Santa Singh as mentioned in the application. That application was also dismissed by the trial Court. Under Cl. (k) of Order 43, Rule 1, CPC., when the Court disallows the request of the plaintiffs to bring on record the Legal Representatives of deceased defendant and holds that the suit stood abated, an appeal and not a revision would lie. For the above reasons, I do not find any substance in the preliminary objection raised by the learned Counsel for the petitioners. 10. For the above reasons, I do not find any substance in the preliminary objection raised by the learned Counsel for the petitioners. 10. Now the second question that falls for determination is whether the learned Appellate Court was right in remanding the matter to the trial Court with the directions to decide the matter afresh taking into consideration all the applications moved by the parties falling under the various rules of Order 22, CPC. 11. I have already stated that at the appellate stage, the learned Appellate Court allowed the application filed by the plaintiffs under Order 41, Rule 27, CPC allowing production of the FIR. According to the learned Appellate Court, the above document is relevant for the simple reason that it records the date of death of Santa Singh. In the FIR, the date of death of Santa Singh has been shown as 5.1.1993. The learned Appellate Court observed that there is a confusion regarding the exact date of death of Santa Singh. In the order-sheet dated 22.10.1992 of Misc. Case No. 55/89, the Court recorded the fact of death of Santa Singh and on that account, the injunction application was dismissed. The FIR which was allowed to be produced by the plaintiffs records a different date. The learned Appellate, Court, therefore, thought it fit to get the above controversy resolved by the trial Court and remanded the matter. 12. I am inclined to agree with the view of the learned Appellate Court that in the instant case, it is very crucial to exactly ascertain the date of death of Santa Singh. On the ascertainment of such date, the fate of all the applications filed by the parties under various rules of Order 22, CPC will depend. Hence, the learned Appellate Court has not committed any jurisdictional error in remanding the matter to the trial Court. 13. I, therefore, find no force in the revision petition and the same is hereby dismissed.Petition dismissed. *******