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2003 DIGILAW 438 (RAJ)

Gara Singh v. Dayaram

2003-03-25

S.C.SINGHAL

body2003
SINGHAL, Member – The applicant/defendant has filed this revision under Section 230 of the Rajasthan Tenancy Act, 1955, (in short the Act), against the judgment dated 23.1.2001 passed by learned Settlement Officer-cum-Revenue Appellate Authority, Alwar, by which the appeal filed by him under Section 223 of the Act has been dismissed, as abated. (2). Briefly stated, the facts of the case are that the non applicants No.1 to 5 filed a suit in the court of Sub- Divisional Officer, Tijara under Sections 88 and 188 of the act impleading the applicant and non-applicant No. 6 and Jaimal Singh, Sada Bai and Saudagar Singh as defendants. The applicant and other defendants did not appear despite service of summons, therefore, ex-parte proceedings were taken against them and the suit was decreed ex-parte by the trial court vide its judgment dated 3.2.88. The applicant-defendant filed an application under Order 9 Rule 13 of CPC for setting aside the ex-parte decree against him in the trial court which was dismissed vide its judgment dated 20.1.99 by the trial court. Against this, the applicant defendant filed an appeal before the learned lower court which has been decided as aforesaid, now this revision. (3). I have heard the learned counsels of both the parties and have perused the record and also the impugned judgment. (4). After perusing the record of the learned appellate court it comes out that the applicant filed an appeal under Section 223 of the Act impleading the non-applicants No.1 to 6 as respondents and Jaimal Singh, Sada Bai and Saudagar Singh as proforma respondents. During the pendency of the appeal, the non- applicant Dayaram and others, who were the respondents, filed an application on 10.8.2000 stating that the proforma respondents Jaimal Singh, Sada Bai and Saudagar Singh have died in the year 1995, hence appeal has abated. The applicant has filed his reply that their names be deleted. The learned lower court on the basis of 1992 RRD 461 (1), abated the appeal as aforesaid. (5). It is not disputed that proforma respondents who are said to be died in the year 1995, were alive at the time of service of summons in the trial court and they did not contest the suit. The learned lower court on the basis of 1992 RRD 461 (1), abated the appeal as aforesaid. (5). It is not disputed that proforma respondents who are said to be died in the year 1995, were alive at the time of service of summons in the trial court and they did not contest the suit. Under Order 22 Rule 4(4) CPC the court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file written statement or who having filed it, has failed to appear and contest the suit at the hearing and judgment may in such case to pronounced against such defendant notwithstanding the death of said defendant and shall have the same force and effect if it has been pronounced before the death took place. Since the proforma respondents have died after the service of summons and they have failed to appear and contest the suit at the hearing before the trial court, therefore, no necessity arises to implead the legal representatives of the said deceased defendants in view of the above legal provision. Sub Rule (4) by amendment Act 1996 was incorporated in Order 22 Rule 4 CPC to allow the exemption in a suit where the defendant is not contesting and it is for the court to consider whether exemption should be allowed or not. The said prayer cannot be disallowed on the ground that the legal representatives of the deceased are necessary party and in absence of them no decision can be taken. The legislature has itself provided in case of non-contesting defendant even without substitution of his heirs, the judgment can be pronounced, which has the same effect as if the same was delivered during the lifetime of the deceased defendant. In this connection, reference may be made to Mohammed S. Imam vs. Ray Bharat Kumar and Others (2). More so over, the applicant has categorically mentioned in his reply to the application filed by the non-applicants under Order 22 Rule 4 CPC that their names may be deleted from the array of the respondents as they have died before filing the appeal. Why this prayer has been refused by the learned lower appellate court, it is not clear from the perusal of the impugned judgment. Why this prayer has been refused by the learned lower appellate court, it is not clear from the perusal of the impugned judgment. The learned lower court has only written in the impugned judgment that reply filed by the applicant is evasive as the non-applicants counsel has informed on 10.8.2000 regarding the death of the proforma respondents. To my mind it is not a proper finding which could be sustained. Since Jaimal Singh, Sada Bai and Saudagar Singh have been impleaded as proforma respondents and no relief has been sought against them by the applicant, therefore, their names could be deleted from the array of respondents by the learned lower court. When ex-parte decree has been passed against the non-applicants and it has been challenged by the applicant-defendant under Order 9 Rule 13 CPC, therefore, the appeal filed by the applicant cannot be abated on the ground that the proforma respondents have died before filing of the appeal. The case law cited by the learned lower court does not apply at all in facts of the present case. In 1992 RRD 461 (3), the Single Bench of the Board has held that in a suit for eviction of more than one trespasser in which it has not been shown on each specific part of the land each one of the trespasser has trespassed and only a joint act of trespass is pleaded, the entire suit abates on the death of one of the defendants. Hence, the impugned judgment passed by the learned lower court is not in accordance with law and cannot be sustained. (6). In the result, the revision succeeds and the judgment dated 23.1.2001 passed by learned Settlement Officer-cum-Revenue Appellate Authority, Alwar is set-aside. The learned Settlement Officer-cum-Revenue Appellate Authority, Alwar is directed to decide the appeal on merits after hearing both the parties. (7). Both the parties are directed to appear before the learned lower appellate court on 30.4.2003. Pronounced in the open court.