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2007 DIGILAW 1557 (DEL)

CHHOTTO DEVI v. FINANCIAL COMMISSIONER

2007-08-03

S.MURALIDHAR

body2007
JUDGMENT Dr. S. Muralidhar, J. (Open Court)-The writ petition is directed against an Order dated 16.2.2006 passed by the Financial Commissioner dismissing the petitioners revision petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (EP Act). The impugned order dismisses an application filed by the petitioner under Order 22 Rule 4, CPC for substituting the legal representatives of respondent No. 12 Shri Hira Lal who admittedly died on 27.4.2001 even before the order dated 1.4.2002 of the Consolidation Officer (CO) which was under challenge in the revision petition, was passed. 2. The Financial Commissioner was of the view that the provision of Order 22 Rule 4, CPC applies only in case a party dies during the pendency of the case. According to the Financial Commissioner, since respondent No. 12 did not died during the pendency of the Revision Petition, the application for substitution could not be entertained. He further proceeded to dismiss the revision petition itself without discussing any of the merits of the case. 3. Mr. Jayant Bhushan, learned Senior Counsel for the petitioner submits that it was incumbent on the learned Counsel representing Respondent No. 12 before the CO to have drawn the attention of the CO to the fact that Shri Hira Lal had died on 27.4.2001 and should have sought to bring the legal representatives on record. This would have precluded the CO from passing an order in favour of a dead person which was what had happened in the present case. When the petitioner sought to challenge the allotment it was but natural that she would seek to bring on record the legal representatives of Shri Hira Lal on record in the proceedings before the Financial Commissioner since any order passed in the said petition in favour of the petitioner would have been adverse to the interests of such legal representatives. He further submits that in any event the challenge laid by the petitioner to the order of the CO could not have been negated vis-a-vis all the other respondents just because legal representatives of one of them were not brought on record. 4. Mr. Vikram Nandrajog, learned Counsel appearing for respondents 5 to 10. submitted that on merits there was much to be said which would disentitle the petitioner to relief. Mr. 4. Mr. Vikram Nandrajog, learned Counsel appearing for respondents 5 to 10. submitted that on merits there was much to be said which would disentitle the petitioner to relief. Mr. Bhardwaj, learned Counsel for the legal representatives of respondent No. 12 does not dispute that respondent No. 12 died on 27.4.2001 but maintains that he was not a party to the consolidation proceedings at all. He seeks to refer to certain earlier proceedings in this Court to point out that the legal representatives of Shri Hira Lal were not brought on record in those proceedings by the petitioners. 5. This Court finds that the Financial Commissioner has erred in dismissing the application filed by the petitioner here seeking substitution of the legal representatives of late Shri Hira Lal. The petitioners are right in submitting that it was actually incumbent on Counsel representing Shri Hira Lal to have moved an appropriate application before the CO to bring on his legal representatives on record, particularly when since an allotment was being sought in favour of Shri Hira Lal in these proceedings. The CO g could not have possibly made an allotment in favour of a dead person and till such time his legal representatives are not brought on record, the allotment would not be valid. Absent such substitution, the proceedings before the CO vis-a-vis Shri Hira Lal would, by operation of law, abate. It is also keeping the principle of natural justice that in the proceedings before h the Financial Commissioner, if any order had to be passed in favour of the petitioner and against the interests of the legal representatives of Shri Hira Lal, an opportunity of hearing would have to be given to such legal representatives. It would indeed be anomalous that notwithstanding the proceedings having abated on account of the death of a party, the order passed in favour of such party would somehow become final and be immune from such challenge by anyone since all the legal representatives of such party were not brought on record, due to the fault of the lawyer representing such party. That is not the intent of the provision of Order 22 Rule 4, CPC. It was not meant to benefit a defaulting party. A further difficulty in the impugned order is that the entire revision petition has, for no reason, been dismissed. That is not the intent of the provision of Order 22 Rule 4, CPC. It was not meant to benefit a defaulting party. A further difficulty in the impugned order is that the entire revision petition has, for no reason, been dismissed. For the above reason, the impugned order is unsustainable in law. The matter will require to be remanded to the Financial Commissioner. 6. This Court is not inclined to examine the merits of the case since the Financial Commissioner has not discussed the merits of the case at all and has dismissed the petition in its entirety on a technical plea. 7. For all of the above reasons, the impugned order dated 16.2.2006 passed by the Financial Commissioner is set aside. The application for substitution filed by the petitioner is hereby allowed. The case is remanded to the Financial Commissioner to hear and decide the revision petition afresh. The parties will appear before the Financial Commissioner on 20.8.2007. The legal representatives of respondent No.12 who have already been brought on record in these proceedings, will be deemed to have been brought on record in the revision petition before the Financial Commissioner. The Financial Commissioner will decide the revision petition after considering all the submissions made by the parties before him, within a period of one year from today. 8. The writ petition is accordingly allowed with no order as to costs. The applications are disposed of. 9. A certified copy of this Order be delivered to Financial Commissioner within five days. 10. A copy of this Order be given dasti to the Counsel for the parties. Writ Petition allowed.