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2004 DIGILAW 1535 (RAJ)

Chandgi Ram v. Janardan

2004-10-19

GIRIRAJ SINGH, KAMAL NAYAN SHRIMAL

body2004
SHRIMAL, MEMBER.–This second appeal, under section 224 Rajasthan Tenancy Act, 1955, is directed against the judgment and decree dated 7.8.2003 of the learned Revenue Appellant Authority, Sikar Camp at Jhunjhunu in appeal No. 61/2003 and the same was directed against the judgment and decree passed on 26.3.2003 by Sub-Divisional Officer, Chirava in suit No. 125/2002. (2). The facts in nutshell are that the appellant/plaintiff Chandgiram filed a suit in the court of Sub Divisional Officer, Jhunjhunu on 29.11.1995 for declaration and permanent injunction against the respondent defendants including Radheyshyam son of Nathumal (since deceased) who died on 30th April, 1998 during the pendency of this suit No. 113/95 titled as Chandgi Ram vs. Radheyshyam and Ors. (3). The appellants contention, as mentioned in the plaint, was that former Khasra No. 906 measuring 4 bighas 10 biswas viz. present khasra No. 867 measuring 1.14 hect. is situated in village Mandela. On the above land the forefathers of the plaintiff were khatedar tenants. The same were entered in the khatoni jamabandi and khasra girdawari. As the plaintiff was living at a distant place he appointed Pachattermal son of Ghisaram Kumhar as power of attorney holder on 31.10.1995 who used to look after the land and cultivate the same. As the land was surrounded by urban areas the defendants on account of greed wanted to grab the land. The plaintiff has sold 124 Sq.ft. of land on 15.11.1995 to Phularam who was living there after constructing the Dhani. The defendants approached the plaintiff to sell the land to them but he refused to oblige them as such the defendant No. 9 to 13 under a conspiracy executed a fictitious sale deed on 25.11.1995 and got it registered. As the plaintiffs right was being threatened illegally he was entitled to the relief for declaration and injunction as well as declaration of the registered deed void. (4). The defendants contested the suit. They moved an application under Order 7 Rule 11 CPC challenging the jurisdiction of the court on the ground that the land in dispute is urban land and the Revenue court has no jurisdiction to deal with the case. The SDO vide order dt. 01.05.1999 dismissed the application. The legal representatives of deceased Radheyshyam (defendant No. 1 and others) filed a revision petition under section 230 of the Rajasthan Tenancy Act before the Board of Revenue, Rajasthan. The SDO vide order dt. 01.05.1999 dismissed the application. The legal representatives of deceased Radheyshyam (defendant No. 1 and others) filed a revision petition under section 230 of the Rajasthan Tenancy Act before the Board of Revenue, Rajasthan. It was registered as revision TA/NO.71/99 District Jhunjhunu titled as Radheyshyam (deceased) through legal heirs and others vs. Chandgi Ram. The Board of Revenue dismissed the revision on 3.12.2001. The proceedings before the Board were exparte against the appellant. (5). After the dismissal of the revision file was sent back to SDO Jhunjhunu in mean time on account of creation of a new Sub Division at Chirawa the suit file was sent to SDO Chiwara and the case was registered at No. 125/2002. (6). That an application under Order 22 Rule 4 read with section 151 CPC and an application under Section 5 Limitation Act, 1963 along with the affidavit was filed on 29.5.2002 by the plaintiff praying that the legal representatives of defendant No. 1 Radheyshyam be taken on record. The defendants opposed it by an application dt. 11.10.2002 and asserted that the suit has already abated as far as defendant No. 2 Radheyshyam is concern the learned Trial Court dismissed the suit on the ground of abatement vide its judgment and decree dt. 26.3.2003. (7). The appeal filed by the plaintiff met with no success and the same was dismissed vide judgment and decree dt. 7.8.2003. (8). Being aggrieved of the above judgment and decree the plaintiff has filed this second appeal before the Board of Revenue for Rajasthan which has been registered as No. 194/03 District Jhunjhunu. (9). The learned counsel for the appellant has submitted that the judgments and decrees of the courts below are liable to be set aside and quashed for the reasons: (a) The legal representatives of Radheyshyam had filed revision TA/No. 71/99/District Jhunjhunu titled as Radheyshyam (deceased) to legal heirs and others vs. Chandgiram. Thus the legal representatives of Radheyshyam had come on record in connection with the same suit. As they have come on the record the lower court ought to have removed the name of Radheyshyam from the array of parties and the names of legal representatives mentioned in the revision ought to have been brought on record as defendants. Thus the legal representatives of Radheyshyam had come on record in connection with the same suit. As they have come on the record the lower court ought to have removed the name of Radheyshyam from the array of parties and the names of legal representatives mentioned in the revision ought to have been brought on record as defendants. (b) It was the duty of the advocate for Radheyshyam to bring the fact of death of Radheyshyam on record and give the names of his legal representatives. This provision is mandatory. The above noted revision was decided ex-parte and as such the appellate could not know the fact of Radheyshayms death. After the decision of the revision the file was sent back to SDO Chirawa and the appellant has filed an application under Order 22 Rule 4 CPC along with an application under Section 5 of the Limitation Act supported by an affidavit which the learned Trial Court ought to have allowed. (10). That the revision and appeal are considered as continuation of the suit as the legal representatives of Radheyshyam has already come on record by the revision filed before the Board of Revenue and the suit could not have been held as abated. (11). That the learned lower court committed a gross error of law and fact in dismissing the entire suit when the defendants themselves have claim abatement of the suit to the extent of Radheyshyams interest. (12). The learned counsel appearing for the respondent has vehemently controverted the argument of the learned counsel for the appellant. He submits that the legal representatives ought to have been brought on record in the first court viz. SDOs court. As the legal representatives were not brought on record within the prescribed time the suit abated automatically. He placed reliance on 2000 RLR (II) 599 (1). He further argued that it is necessary to file application to set aside abatement and placed reliance on 1992 RRD 364 (2), 2000 RBJ page 648 (3), 1998 RRD 324 (4). That the application under Order 22 Rule 4 along with the application for condonation of delay was hopelessly barred by time. He further argued that it is necessary to file application to set aside abatement and placed reliance on 1992 RRD 364 (2), 2000 RBJ page 648 (3), 1998 RRD 324 (4). That the application under Order 22 Rule 4 along with the application for condonation of delay was hopelessly barred by time. Between the same parties another civil suit No. 83/96 was pending before the Additional District Judge, Jhunjhunu in that suit the legal representatives of Radheyshyam were brought on record and a copy of the application filed under order 22 rule 4 was given t the advocate for the appellants as such it cannot be said that appellant was unaware about the death of Radheyshyam. The bringing of the legal representatives on record in the civil suit cannot be considered as being brought on record in the revenue case which is subject matter of the present appeal. The provisions of Order 22 Rule 10A are not mandatory. They have been introduced by the amendment just to give a fair chance to the other party to bring the legal representatives of the deceased. It cannot be utilized as a defence for the lethargy of a litigant. (13). We have heard the arguments with utmost attention the arguments of the learned counsel appeal on behalf of both the parties and have perused the record. It has not been controverted by the learned counsel for the respondents that against the dismissal of the application filed by the respondents under Order 7 Rule 11 CPC for rejection of the plaint a revision was filed by the legal representatives of Radheyshyam alongwith others before the Board of Revenue and the same was registered as Revision/TA No. 71/99/District Jhunjhunu which dismissed on 03.12.2001. (14). The appeal and revision are continuation of the suit. If a party to the suit dies and his legal representatives are brought on record in an appeal or revision from an order made in the suit it would enure for all subsequent stages of the suit but this legal position cannot be invoked in the reverse or converse situation. A suit is not continuation of an appeal. ON the above point we stand supported by the observations made by their lordships of the Supreme Court in Rangu Bai vs. Sundra Bai (5). A suit is not continuation of an appeal. ON the above point we stand supported by the observations made by their lordships of the Supreme Court in Rangu Bai vs. Sundra Bai (5). The relevant portion reads as under:- ``The order bringing the legal representatives on record in the appeal would enure for the further stages of the suit. (3) An appeal was filed against an interlocutory order made in a suit. Pending the appeal the defendant died and his legal representatives were brought on record. The appeal was dismissed. The appeal being a continuation or a stage of the suit, the order bringing the legal representatives on record would enure for the subsequent stages of the suit. This would be so whether in the appeal the Trial Courts order was confirmed, modified or reversed. In the above 3 illustrations one fact is common, namely, the order bringing on record the legal representatives was made at one stage of the suit, be it is the suit or in an appeal against the interlocutory order of final order made in the suit, for an appeal is only a continuation of the suit. Whether the appellant order confirmed that of the first court, modifies or reverses it, it replaces or substitutes the order appealed against. It takes its place in the suit and becomes a part of it. It is as it were the suit was brought to the appellate Court at one stage and the orders made therein were made in the suit itself. (15). Following the above noted judgment and placing reliance on Panna Lal Agarwal vs. Kanhiya Lal Jain (6), the Board of Revenue in LRs of Kalyan vs. LRs of Noor Mohd. (7), observed:- ``Hence, when there is a substitution in a pending appeal or revision and the matter is remanded to the court below, the letter has to see that the names of those who are dead, should be removed from the record and those who are substituted in the appellate court should be brought on the record and no separate application is necessary. In N. Jayaram Reddy vs. Revenue Division Officer (8), Honble Supreme Court has held that:- ``A substitution of legal representatives of the deceased party in an appeal or revision even against an interlocutory order would enure for the subsequent stages of the suit on the footing that appeal is continuation of a suit and introduction of a party at one stage of a suit would enure for all subsequent stages of the suit. (16). Thus the appeal can be accepted on this ground alone. We do not consider it necessary at this stage to decide whether provisions of Order 22 Rule 10 A are mandatory or directory. Regarding application for extension of time by the appellant to permit him to implead legal representatives of deceased Radheyshyam. It would suffice to say that a party should not suffer for inaction of an advocate or his Munshi. No doubt the copy of the application filed under order 22 Rule 4 in the civil case was given to the advocate for the appellants but the does not necessarily mean that the averment made by the appellant to the effect that he had no knowledge of the death of Radheyshyam is false. (17). When substantial justice and technical considerations are pitted against each other cause of substantial justice deserves to be prefer for the other side cannot claim to have vested right in injustice being done because of non deliberate delay. A litigant does not stand to benefit by resorting to delay in fact he runs the risk it must be grasped the judiciary is respected not on account of its power to legalize injustice on technical grounds but it is capable of removing injustice and is expected to do so. (18). For the reasons mentioned above the appeal is allowed. The judgments and decrees of both the courts below are set-aside. The name of Radheyshyam is ordered to be removed from the array of parties and the names of legal representatives mentioned in the above noted revision petition are ordered to be brought on record and substituted in the plaint. The parties are ordered to bear Sub-Divisional Officer, Chirava, on 14.12.2004 who shall decide the suit on its merits in accordance with law. Pronounced in open court.