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2005 DIGILAW 178 (HP)

PARMODH RAM v. RAJINDER PARSHAD

2005-06-06

V.M.JAIN

body2005
JUDGMENT V.M. Jain, J.—This revision petition has been filed by the legal representatives of Nand Lal plaintiff against the orders passed by the Courts below whereby the learned trial Court had ordered the dismissal of the suit as having abated and the appeal filed by the legal representative of the plaintiff was dismissed by the learned Additional District Judge. 2. The facts, which are relevant for the decision of the present revision petition, are that Nand Lal plaintiff had filed a suit for declaration etc. against the defendants, who were 31 in number. There are two written statements on the record. One written statement was filed on behalf of defendant No. 1 while the other written statement was filed on behalf of defendants No. 2, 17 and 31. The legal representatives of defendant No. 26 were also represented by a Counsel, though no written statement appears to have been filed either by defendant No. 26 or by his legal representatives. The other defendants were proceeded against ex-parte. After hearing both sides, the learned trial Court partly decreed the suit of the plaintiff for possession in respect of the suit land in favour of the plaintiff. However, with respect to the other prayer for declaration etc., the suit was dismissed, vide judgment and decree dated 30.11.1994. Aggrieved against the same, defendant No. 1 Rajinder Parshad filed an appeal. The learned District Judge vide order dated 26.6.1998 accepted the appeal filed by defendant No.l, set aside the judgment and decree of the trial Court and remanded the case to the trial Court for fresh decision in accordance with law, holding as under : "It has been established on record that two of the defendants, namely, Diwakar Datt and Raghbir Dass had died even before the institution of the suit and their LRs were not brought on record. So, the judgment against the dead person is nullity and the death having been occurred even before the institution of the suit, the trial Court is to decide the question whether the suit has abated or whether the deceased defendants are to be substituted by the L.Rs." 3. In pursuance of the aforesaid order dated 26.6.1998 passed by the learned District Judge, the file was again taken up by the learned trial Court. In pursuance of the aforesaid order dated 26.6.1998 passed by the learned District Judge, the file was again taken up by the learned trial Court. During the pendency of the suit, it came to the notice of the trial Court that defendants No. 10, 11, 14 and 26 (c) had died during the pendency of the suit. An application under Order 22 Rules 1 and 4 read with Section 151 CPC was filed by the legal representatives of Nand Lal plaintiff on 15.12.1999 for setting aside the abatement on account of death of defendants Savitri, Tulsi Ram, Salo, Raghbir Dass, Smt. Morni, Dwarka Dass and Kishori Lal. After hearing both sides and perusing the record, the learned trial Court dismissed the said application and also dismissed the suit as having abated as a whole, vide order dated 16.12.1999. Aggrieved against the same, the legal representatives of Nand Lal plaintiff filed an appeal. The learned Additional District Judge after hearing both sides and perusing the record dismissed the said appeal, vide order dated 28.6.2002. Aggrieved against the same, the legal representatives of Nand Lal plaintiff filed the present revision petition in this Court. 4. I have heard the learned Counsel for the parties and have gone through the record carefully. As referred to above, initially, the trial Court had partly decreed the suit of the plaintiff. However, the appeal filed by Rajinder Parshad defendant No. 1 was allowed by the learned District Judge, the judgment and decree of the trial Court were set aside and the case was remanded to the trial Court for fresh decision in accordance with law observing that Diwaker Datt and Raghbir Dass had died even before the institution of the suit and their legal representatives were not brought on record and the trial Court was required to decide the question as to whether the suit had abated or whether the deceased defendants were to be substituted by the legal representatives. After remand, it was found by the trial Court that some of the defendants had also expired. An application under Order 22 Rules 1 and 4 read with Section 151 CPC was filed on 15.12.1999 for setting aside the abatement on account of death of various defendants, named above. After remand, it was found by the trial Court that some of the defendants had also expired. An application under Order 22 Rules 1 and 4 read with Section 151 CPC was filed on 15.12.1999 for setting aside the abatement on account of death of various defendants, named above. It was alleged in the application that the plaintiff came to know about the death of these defendants at a very late stage and that the suit had abated qua the rights of these defendants and that the plaintiff had a right to sue the legal representatives of the deceased defendants and accordingly it was prayed that the abatement may be set aside in the interest of justice. Neither the dates of the death of these defendants were given nor the names of the legal representatives of these deceased defendants had been given in the said application. After hearing both sides, the learned trial Court dismissed the said application and also dismissed the suit as having abated, vide order dated 16.12.1999. A perusal of the said order would show that while passing the said order, it was noticed by the learned trial Court that the plaintiff had not taken any steps to implead the legal representatives of deceased defendants 12 and 15, namely, Raghbir Dass and Diwaker Datt who had died even prior to the institution of the suit and that it was only on 15.12.1999 that the application in question, was filed for setting aside the abatement as the suit had abated qua the defendants, named above. Since in the application, neither the dates of death of the aforesaid defendants had been given nor the names of the legal representatives of the deceased defendants had been given, the learned trial Court not only dismissed the application but also dismissed the suit as having abated after observing that the various defendants who had died were co-owners in the suit land and since the legal representatives were not brought on record, the entire suit would abate as a whole and not against the deceased defendants only. When the matter came up in appeal before the learned Additional District Judge, it was again found by the learned Additional District Judge that the application in question was vague as neither the dates of death of these defendants had been given nor the names of the legal representatives were mentioned. When the matter came up in appeal before the learned Additional District Judge, it was again found by the learned Additional District Judge that the application in question was vague as neither the dates of death of these defendants had been given nor the names of the legal representatives were mentioned. It was also found by the learned Additional District Judge that in the absence of the deceased defendants and/or their legal representatives having been brought on record, the suit had abated as a whole since these defendants were the co-owners of the suit land and declaration was sought in that regard. Resultantly, the appeal was dismissed. While dismissing the appeal, it was also noticed by the learned Additional District Judge that the appellants had not taken any steps to implead the legal representatives of defendants No. 12 and 15, who had died even prior to the institution of the suit. 5. The learned Counsel appearing for the petitioners submitted before me that defendants No. 10, 11, 14 and 26 (c), on account of whose death the trial Court had dismissed the suit as having abated and the said order was upheld in appeal by the learned Additional District Judge, had not even contested the suit and as such, the death of these defendants and not bringing their legal representatives on record, could not be made the basis for dismissing the suit as having abated, in view of the amended provisions of Order 22 Rule 4 (4) CPC. 6. It is no doubt true that defendants 10,11,14 and 26 (c), on account of whose death the learned trial Court had dismissed the suit as having abated, had not contested the suit inasmuch as no written statement was filed on behalf of these defendants and defendant No. 26 (c), being one of the legal representatives, was simply represented by a Counsel. Under these circumstances, in my opinion, the suit could not be dismissed as having abated on account of death of these defendants even if their legal representatives were not brought on record since these defendants had failed to contest the suit and had failed to file written statement. Under these circumstances, in my opinion, the suit could not be dismissed as having abated on account of death of these defendants even if their legal representatives were not brought on record since these defendants had failed to contest the suit and had failed to file written statement. Under Order 22 Rule 4(4) CPC, the Court is competent to exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who had failed to file written statement or who, having filed it, had failed to appear and contest the suit at the hearing. It is also provided therein that in such a case, the judgment may be pronounced against the said defendant notwithstanding the death of such defendant and it shall have the same force and effect as if it had been pronounced before the death took place. 7. In this view of the matter, in my opinion, simply on account of death of defendants No. 10,11,14 and 26 (c) and their legal representatives having not been brought on record, the suit of the plaintiff could not have been dismissed as having abated. 8. However, the matter does not rest here. As referred to above, the trial Court had earlier partly decreed the suit of the plaintiff, vide judgment and decree dated 30.11.1994. The appeal filed by Rajinder Parshad defendant No. 1 was allowed by the learned District Judge, vide order dated 26.6.1998, the judgment and decree of the trial Court were set aside and the case was remanded to the trial Court for fresh decision in accordance with law after holding that two of the defendants namely, Diwaker Datt and Raghbir Dass had died even before the institution of the suit and their legal representatives were not brought on record and the trial Court was to decide the question as to whether the suit had abated and whether these deceased defendants were to be substituted by their legal representatives. Inspite of the aforesaid order dated 26.6.1998 passed by the learned District Judge, no steps were taken by the plaintiff to bring on record the legal representatives of these defendants, namely, Diwaker Datt and Raghbir Dass who had died even before the institution of the suit. Inspite of the aforesaid order dated 26.6.1998 passed by the learned District Judge, no steps were taken by the plaintiff to bring on record the legal representatives of these defendants, namely, Diwaker Datt and Raghbir Dass who had died even before the institution of the suit. On the other hand, an application under Order 22 Rules 1 and 4 read with Section 151 CPC was filed on 15.12.1999, alleging therein that the suit had abated qua the rights of various deceased defendants mentioned therein including Raghbir Dass and Diwaker Datt. As referred to above, in this application, neither the dates of death of these defendants, including Diwaker Datt and Raghbir Dass had been mentioned, nor the names and particulars of the legal representatives of these defendants had been given. In the absence of the same, in my opinion, the present suit is liable to be dismissed since the suit was filed against the dead persons. Admittedly, defendants No. 12 and 15, namely Raghbir Dass and Diwaker Datt were also co-owners in the suit property and the plaintiff had sought a declaration that he had become owner of the suit property and such a declaration could not be given qua the share of defendants No. 12 and 15, namely Raghbir Dass and Diwaker Datt. Since the legal representatives of these defendants were not brought on record at any stage, the suit qua defendants No. 12 and 15, namely, Raghbir Dass and Diwaker Datt was liable to be dismissed as no decree could be passed against the dead persons. Once the suit is dismissed qua the share of defendants No. 12 and 15, namely, Raghbir Dass and Diwaker Datt, the suit qua the remaining defendants is also liable to be dismissed on the short ground that two contradictory decrees could not be passed in respect of the suit property inasmuch as all the defendants were the joint owners of the suit property and the suit having been dismissed qua defendants No. 12 and 15 who were co-owners in the suit property, the suit qua the share of other defendants who were also co-owners in the suit property, is also liable to be dismissed on this ground alone. 9. 9. In view of the above, in my opinion, there is no merit in this revision petition and the same is liable to be dismissed, even though on a different ground, especially when no useful purpose will be served in proceeding with the suit, since two contradictory decrees cannot be passed in respect of the suit property. 10. For the reasons recorded above, finding no merit in the revision petition, the same is hereby dismissed. Revision petition dismissed.