Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 218 (HP)

DEVI DASS v. ROOP RAM

2002-08-07

KAMLESH SHARMA

body2002
JUDGMENT Kamlesh Sharma, J. - The petitioners are the defendants, whereas the respondent is the plaintiff and they will be referred to as such in this judgement. 2. In this revision petition the defendants are aggrieved by the order dated 31.10.2000 passed by the Sub Judge (V), Shimla whereby the application of the plaintiff under order 22 Rules 4 and 9 read with section 151 C.P.C. was allowed and the legal representatives of deceased defendant No.3 Ghanshyam pass, were brought on record. 3. This court has heard learned counsel for the parties and gone through the record. 4. The precise submission of the learned counsel for the defendants is that the (i) composite application under order 22 Rule 4 and Rule 9 C.P.C. was not maintainable; (ii) the application could not be decided without notice to proposed legal representatives of deceased defendant No.3. Ghanshyam Dass; and (iii) while deciding the application the sub judge has ignored the material documents Ext. R.1 and R.2. which has resulted into conflicting orders. Exts. R.1 and R.2 are the orders dated 6.5.2000 passed by the sub judge (1V), Shimla whereby another suit between the parties (civil suit No. 37/1 of 1999/93) was dismissed as abated as a consequence of dismissal of the application under order 22 Rules 4 and 9 C.P.C. for bringing on record the legal representatives of deceased defendant No. 3 Ghanshyam Dass. 5. On the other hand, learned counsel for the plaintiff has supported the impugned order. In his counter arguments learned counsel has submitted that composite application under order 22 Rule 4 and Rule 9 C.P.C. was maintainable as held by the learned Single Judge of this Court in Mussadi and others v. Jai Gopal and others 1994(1) SLJ 90. The order is not liable to be set aside for the reason that the proposed legal representatives were not given notice as they are at liberty to oppose the order as and when they appear before the court as party defendants. They have not made any grievance in this regard even in this revision petition. It is correct that the Sub Judge has not referred to the documents Exts. R.1 and R.2 but it is of no material effect. The suit in which the said orders Exts. They have not made any grievance in this regard even in this revision petition. It is correct that the Sub Judge has not referred to the documents Exts. R.1 and R.2 but it is of no material effect. The suit in which the said orders Exts. R.1 and R.2 were passed may be between the same parties, but the cause of action was different, as such, it cannot be said that conflicting orders have been passed as this principle will apply in the same proceedings. Relying upon the judgement of Bombay High Court in kesari Chand Motichand Shah v. Fakirbahai Kariabhai Koli & others 1995 (2) civil Court cases 49 (Bombay), learned counsel has urged that in a suit filed for injunction simpliciter based on common cause of action, dismissal of entire suit as abated is not warranted on the failure of the plaintiff to implead the legal representatives of one of the deceased defendant.. Learned counsel has also pointed out that the defendants have preferred counter claim which will also abate if the suit of the plaintiff is dismissed as abated. 6. Before considering the respective arguments of learned counsel for the parties, this court would like to refer to some facts on record to highlight how the proceedings in civil suit are conducted in a most casual manner by the learned counsel for the parties as well as by the court which causes not only inordinate delay in trial but also disrepute to the whole judicial system. 7. The suit was filed as far back as on 20.1.1993. In the cause title of the suit the names of defendants 1 to 3 were mentioned as Devi Dass son of Ishroo Ram, defendant No. 1, Reva Dass and Hari Ram sons of Hari Ram, defendants No.2 and 3, respectively. On receipt of the report that defendant No. 3 had died the case was adjourned to enable the plaintiff to move an application for bringing on record legal representatives of defendant No. 3 by the Senior Sub Judge, Shimla vide order dated 6.4.1993. On receipt of the report that defendant No. 3 had died the case was adjourned to enable the plaintiff to move an application for bringing on record legal representatives of defendant No. 3 by the Senior Sub Judge, Shimla vide order dated 6.4.1993. Thereafter for moving the said application case was .adjourned to 27.4.1993, 20.5.1993, 15.6.1993, 22.7.1993 and to 25.8.1993 when the fact was brought to the notice of the court that name of defendant No. 3 was wrongly mentioned as Hari Ram son of Hari Ram instead of Ghanshyam Dass son of Hari Ram and the court passed the order to rectify the mistake holding it a clerical error and adjourned the matter for 17.9.1993 on which date the file was sent to the District judge, Shimla for transfer on the ground that conciliation had failed. The District Judge transferred the case to the Sub Judge (1), Shimla, by order dated 29.9.1993. In the court of the Sub Judge (1) an application under order 1 rule 10 C.P.C. was filed on 12.1.1994 praying that name of Ghanshyam Dass son of Hari Ram may be substituted as defendant No. 3 in place of Hari Ram son of Hari Ram. This application was allowed on 4.4.1994. Thereafter the case was adjourned from one date to another up to 4.4.1996 for filing replication, when it came to the notice of the court that service on newly added defendant No.3 Ghanshyam Dass was not effected till then. However, on 3.5.1996 learned counsel for defendants 1 and 2 filed memo of appearance on behalf of defendant No. 3 also and gave statement that written statement of defendants 1 and 2 might be considered as the written statement of defendant No. 3 also. Thereafter issues were framed on 23.8.1996 and statements of some PWs were recorded. On 22.6.1998 an application under section 151 C.P.C. was filed on behalf of the defendants that the written statement tagged with the suit pertains to the other suit between the parties pending in the court of sub judge (1V), Shimla which may be returned for filling in the said suit and the written statement filed along with the application may be placed on record. This application was not decided and suit was adjourned from, one date to another for filling certified copy of the written statement at the request of learned counsel for the defendants. 8. This application was not decided and suit was adjourned from, one date to another for filling certified copy of the written statement at the request of learned counsel for the defendants. 8. It seems that the case was transferred-for the second time from the court of the sub judge (1), Shimla to the sub judge (v), Shimla some time in July, 1999, who after number of hearings allowed the application on 22.11.1999 and the written statement tagged in the suit was returned and the written statement filed along with the application was brought on record. 9. The plaintiff was given opportunity to file replication as well as written statement to the counter claim of the defendants. After filing the replication and written statement to the counter claim, again issues were framed on 312.1.2.1999 and the case was adjourned for the plaintiffs evidence. 10. On 31.3.2000 when the learned counsel for the defendants informed the court that defendant No. 3 had died, the case was adjourned for bringing on record his legal representatives. After seeking adjournments for three times the plaintiff ultimately filed application under order 22 Rules 4 and 9 read with section 151 C.P.C., with the prayer that legal representatives of deceased defendant No. 3, Ghanshyam Dass, whose names and addresses are given therein may be brought on record. It is stated in this application that defendant No.3 Ghanshyam Dass had died on 3.9/. 1997 and the right to sue survives to his legal representatives. It is also stated that the plaintiff had come to know about the death of defendant No. Ghanshyam Dass only on 24.3.2000 when the learned counsel for the defendants disclosed the said fact in the court, therefore, from the date of knowledge the application is within limitation. The application was opposed by filing reply on behalf of defendants land 2. A preliminary objection was taken that the application was not maintainable and also that in another suit between the same parties an order dismissing the suit as abated had already been passed. On merits, it is denied that the plaintiff had no knowledge of the death of deceased Ghanshyam Dass as he had participated in his last rites. According to the defendants, the right to sue does not survive to the legal representatives and the suit stood already abated. On merits, it is denied that the plaintiff had no knowledge of the death of deceased Ghanshyam Dass as he had participated in his last rites. According to the defendants, the right to sue does not survive to the legal representatives and the suit stood already abated. It was also pointed out hat without moving an application for setting aside the abatement, after condonation of delay, the legal representatives cannot be brought on record. 11. On the pleadings of the parties, the Sub Judge has framed the following issues: 1. Whether the application under Order 22 Rules 4 and 9 read with section 151 C.P.C. is within limitation? OPP. 2. Whether the application is not maintainable ? OPR. 3. Relief. 12. Thereafter the case was adjourned for recording the evidence of the parties. On 19.9.2000 the statements of plaintiff Roop Ram and defendant No.1, Devi Dass were recorded. Copies of orders Exts. R.1 and R.2 were also brought on record by putting the same to the plaintiff, AW-1. Thereafter arguments were heard and the impugned order was passed on 31.10.2000.s 13. The Sub Judge has allowed the application holding that it is within limitation by accepting the stand of the plaintiff that he had acquired the knowledge of the death of defendant No.3, Ghanshyam Dass on 24.3.2000 and thereafter filed the application on 23.4.2000. These findings have been assailed in the present revision petition. 14. These findings of fact that application was within limitation as the plaintiff had acquired the knowledge of the death of defendant No.3 Ghanshyam Dass on 24.3.2000, cannot be interfered with in this revision petition under section 115 C.P.C. The perusal of the application shows that it was under order 22 Rule 4 C.P.C. simpliciter and prayer for setting aside abatement after condoning the delay was not made. Therefore, despite the heading of the application, it was not a composite application and was only an application for bringing on record legal representatives of defendant No. 3 Ghanshyam Dass. Otherwise also, I am in full agreement with the view taken by the learned Single Judge of this court in Mussadi and others y. Jai Gopal and others (supra) that composite application under order 22 Rules 4 and 9 C.P.C. is maintainable. Otherwise also, I am in full agreement with the view taken by the learned Single Judge of this court in Mussadi and others y. Jai Gopal and others (supra) that composite application under order 22 Rules 4 and 9 C.P.C. is maintainable. In the absence of specific provisions either prohibiting composite application or prescribing separate application(s) the relief cannot be refused to the applicant on the mere technicality that separate applications under Order 22 Rule 4 C.P.C. and order 22 Rule 9 CP.C and also under section 5 of the Limitation Act have not been filed. 15. So far the second point raised by the learned counsel for the defendants is concerned, there is substance in it that before deciding the application, notice of it was required to be given to the proposed legal representatives of deceased defendant No. 3 Ghanshyam Dass. The order bringing on record the legal representatives of deceased defendant without giving them notice of the application is bad in law as they have a rig)ht to be heard before they are substituted as party defendants in-place of a deceased defendant. But in the peculiar facts and circumstances of this case that (I) all the three defendants had filed common written statement, (iii) they were represented by the same learned counsel who had failed to discharge his obligation under order 22 rule 10-A C.P.C. to communicate to the court the factum of death of defendant No. 3 Ghanshyam Dass and (iii) the pendency of the civil suit for the last more than 91/2 years; the ends of justice will be duly met with, if liberty is reserved to legal representatives of defendant No. Ghanshyam Dass to object to the joining the proceedings in the suit; instead of setting aside the order and directing the sub-judge to decide the application afresh after giving notice to the legal representatives. 16. It may be pointed out that in the application filed by the defendants under Order 1 Rule 10 G.P.C. in this revision petition for their impleadment the legal representatives have not come forward to support the defendants and oppose the impugned order. One Mr. Pawan Caprate, learned counsel, has filed power of attorney on behalf of legal representatives, namely, Krishana Devi, Guddi, Kanta and Ishwar Chand, but he did not put in appearance at the time of hearing of the revision petition. 17. One Mr. Pawan Caprate, learned counsel, has filed power of attorney on behalf of legal representatives, namely, Krishana Devi, Guddi, Kanta and Ishwar Chand, but he did not put in appearance at the time of hearing of the revision petition. 17. It is correct that the Sub Judge has not referred to the documents Exts. R.1 and R.2 whereby another suit between the parties was dismissed as abated as a consequence of dismissal of the application under order 22 rules 4 and 9 C.P,.C., for bringing on record legal representatives of deceased defendant No.3 Ghanshyam Dass, but this is no ground to set aside the impugned order and dismiss the application under order 22 Rule 4 C.P.C. filed by the plaintiff In the present suit as it is decided on the basis of evidence recorded and material placed on the file of this application. The orders Exts. R.1 and P.2 and the impugned order may be conflicting, but these were passed in two separate proceedings, 18. It may be pointed out that the defendants have filed counter claim which also can not proceed it the. legal representatives of deceased defendant No.3 Ghanshyam Dass are not brought on record. Therefore, the impugned order is in the interest of defendants whose counter claim will also survive. 19. So far the submission of the learned counsel for the plaintiff that since the suit is for permanent prohibitory injunction, at the most it would have abated against defendant No.3 Ghanshyam Dass and would have proceeded against the other defendants is concerned, it cannot be accepted as it all depends upon the facts and circumstances of each case. In the present case the prayer for declaration against the defendants is also there and the defendants in their counter have made claim of joint possession, as such the right to sue had not survived against the remaining defendants. Had the suit been for injunction simpliciter and neither the declaration had been sought by the plaintiff nor the defendants had claimed to be in joint possession, the right to sue would have survived against the remaining defendants. 20. Order 22 Rule 1 C.P.C., expressly prescribes that there is no abatement by partys death and that the death of a plaintiff or a defendant shall not cause the suit to abate if the right to sue survives. 20. Order 22 Rule 1 C.P.C., expressly prescribes that there is no abatement by partys death and that the death of a plaintiff or a defendant shall not cause the suit to abate if the right to sue survives. Rule 2 says that were there are more plaintiffs or defendants than one, and any of them dies and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. In its turn Rule 4 of order 22 lays down that where one of two or more defendants die and the right to sue does not survives, the court on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. Sub-rule (3) of Rule 4 provides that where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. It thus follows that in a case when the right to sue survives against the remaining defendants the question of the plaintiff bringing the legal representatives of the deceased defendant does not arise. So far the case in hand is concerned as the right to sue against the remaining defendants did not survive, the suit could proceed only after bringing the legal representatives of deceased defendant No. 3 on record, otherwise it would have abated as a whole. 21. The result of above discussion is that there is no merit in this revision petition and it is dismissed. No order as to costs. The Sub Judge (V), Shimla is directed to proceed with suit in accordance with law keeping in view the observations made hereinabove and decide it on priority basis as it is already delayed much. Records be sent back to Sub Judge (V), Shimla immediately. Parties are directed to appear before sub Judge (V). Shimla on 26.8.2000.