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2009 DIGILAW 83 (RAJ)

Goverdhan Singh v. Onkar Singh

2009-01-12

G.K.TIWARI

body2009
Judgment TIWARI, M.—This is a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 (in short `the Act') directed against the impugned order dated 8.8.1997 of Revenue Appellate Authority Chittorgarh who vide its impugned order dismissed the application put up under Order 1 Rule 10 of the C.P.C. (Civil Procedure Code) by the petition-appellant. 2. I have heard the learned counsels for both the parties in this regard. 3. The learned counsel for the petitioner has argued that the original suit is still pending for issuance of final decree by the trial Court. During the course of appeal filed against the preliminary decree before Revenue Appellate Authority Chittorgarh respondent Bhopal Singh had died, upon which prayer was made for bringing legal representatives of the deceased on record under Order 22 Rule 4 and Order 22 Rule 9 of the C.P.C. but both the applications were rejected by the Revenue Appellate Authority. Thereafter an application under Order 1 Rule 10 of the CPC was filed for impleading the legal representatives (L.Rs.) of deceased as they were interested parties being co-tenants of the suit land. This application was also dismissed on 8.8.1997 by the impugned order. The learned counsel has contended that the rival parties are co-tenants of the suit land which is about the division of holding. The right to sue survives even after the death of respondent Bhopal Singh as his descendents are the only legal representatives who are also co-tenants of the suit land. It was also argued that the counsel for the opposite party has not fulfilled his obligation cast under Order 22 Rule 10-A of the CPC according to which he was supposed to inform about the death of the respondent; as such the order passed by the Revenue Appellate Authority is illegal. He cited 2002 RRT (2) 867 = RLW 2002 RJ 274 and 2004 RRT (2) 1086 in support of his contention. It was also pleaded that technical consideration should not impede delivery of justice. Bringing of legal representatives of the deceased is a procedural and technical matter which should be liberally interpreted and L.Rs. should be taken on record accordingly. He cited 2002 RRT (2) 867 = RLW 2002 RJ 274 and 2004 RRT (2) 1086 in support of his contention. It was also pleaded that technical consideration should not impede delivery of justice. Bringing of legal representatives of the deceased is a procedural and technical matter which should be liberally interpreted and L.Rs. should be taken on record accordingly. The learned counsel cited AIR 1983 (SC) 355 , AIR 1983 (SC) 1202 , 2004 RRT (2) 1038 = RLW 2004 RJ 569, 2004 RRT (2) 698 = RLW 2004 RJ 489, 2005 RBJ 235 and 2005 RBJ 283 for bringing the legal heirs on record. It was also contended that if application for bringing LRs. on record is rejected the descendents of the deceased co-tenants do not cease to have interest in the suit land; as such application under Order 1 Rule 10 of the CPC should have been accepted. But by rejecting of this application the descendents of the deceased co-tenancy. The counsel pressed for quashing of the impugned order. 4. Countering the arguments of the petitioner, the counsel for the non-petitioners pleaded that the petitioner has not stated actual date of death of the deceased respondent who in fact had died on 28.2.1994 and application for bringing L.Rs. was filed many years after the death. Order 1 Rule 10 of the C.P.C. is not a substitute for Order 22 Rule 4 or Order 22 Rule 9 of the CPC. The descendents of the deceased respondent can file separate suit for claiming their right, if any, in the suit land but they cannot be impleaded in this case as the suit has abated against the deceased and his legal representatives. 5. I have given thoughtful consideration to the rival contentions, perused the impugned judgment and gone through the record available on the file. 6. Admittedly, the land in dispute belonged to late Prithvi Singh and rival parties are descendents of Prithvi Singh claiming their respective shares and partition of the suit land. Evidently their status is that of co-tenants. In a suit for division of holding all the co-tenants are necessary parties. This is also a fact that the respondent/defendant Bhopal Singh had died but his legal representatives were not brought on record in time. Evidently their status is that of co-tenants. In a suit for division of holding all the co-tenants are necessary parties. This is also a fact that the respondent/defendant Bhopal Singh had died but his legal representatives were not brought on record in time. Under Order 22 Rule 10-A of the CPC it is an obligation cast on the pleader of the concerned party to communicate to court about the death of his party; but the pleader of the respondents has failed to fulfill his legal duty by not communicating to the court about the death of the respondent Bhopal Singh. It is categorically held in AIR 1983 (SC) 1202 , 2002 RRT (2) 867 and 2004(2) RRT 1087 that on failure of duty cast on the concerned pleader to inform the Court about the death of his client, it cannot be said that the appeal has abated. It is also held in AIR 1983 (SC) 355 , 2004 RRT (2) 1038, 2004 RRT (2) 698 and 2005 RBJ (12) 283 that while taking L.Rs. of the deceased on record liberal interpretation should be made and technical consideration should not impede delivery of substantial justice. Even if applications under Order 22 Rule 4 and Order 22 Rule 9 of the CPC were rejected notwithstanding above citations, the descendents of deceased respondent/defendant Bhopal Singh do not cease to have right and interest in the suit land of which their father was a co-tenant. Their right to sue for partition of the land still survives, particularly when preliminary decree in this regard is already issued. The learned counsel for the non-petitioners has contended that the descendents of the deceased of Bhopal Singh should file separate suit to claim their shares in the land and effect division of holding separately. If this plea of the non-petitioners is accepted, this will lead to multiplicity of suits causing avoidable multifarious litigations. The purpose of a provision of law is not to interpret it in such away that it gives preference to technical considerations over substantial justice leading to multiplication of proceedings, multiplicity of suits and multifarious litigations. Impleading representatives of the deceased Bhopal Singh will be in furtherance of delivery of justice affording them an opportunity of hearing in a dispute relating to the suit land of which their deceased father was a co-tenant. Impleading representatives of the deceased Bhopal Singh will be in furtherance of delivery of justice affording them an opportunity of hearing in a dispute relating to the suit land of which their deceased father was a co-tenant. In such a situation Revenue Appellate Authority Chittorgarh should have allowed the application under Order 1 Rule 10 of the CPC in the interest of justice and in furtherance of principle of natural justice. In not doing so Revenue Appellate Authority Chittorgarh has committed material irregularity and illegality in passing the impugned order which cannot be sustained. 7. In view of the aforesaid discussion the revision succeeds, the impugned order dated 8.8.1997 of Revenue Appellate Authority Chittorgarh is quashed and the application under Order 1 Rule 10 of the CPC is allowed. Both the parties are directed to appear before Revenue Appellate Authority Chittorgarh on 16.2.09 for hearing of the appeal. Pronounced.