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2010 DIGILAW 2587 (PNJ)

Shanti v. Lakhmi

2010-09-08

SATISH KUMAR MITTAL

body2010
JUDGMENT Mr. Satish Kumar Mittal, J.:- The plaintiffs have filed the instant revision petition against the order dated 22.8.1992, passed by the court of District Judge, Bhiwani, whereby the appeal filed by them against the judgment and decree of the trial court dismissing their suit, has been dismissed on the ground that they have challenged the judgment and decree passed by the trial court, without impleading the legal representatives of one of the defendants, who had died during the pendency of the suit. 2. In the present case, the petitioners filed a suit for declaration against five defendants, including one Chander Bhan (defendant No.4). Defendants No.1 to 4 contested the suit. However, defendant No.5 was proceeded against ex-parte. It is undisputed fact that during the pendency of the said suit, defendant No.4 Chander Bhan had expired prior to 26.3.1991, i.e. the date of passing of the judgment and decree by the trial court, and his counsel neither brought the said fact to the notice of the trial court nor moved an application for bringing his legal representatives on record. Ultimately, the said suit of the petitioners was dismissed on 26.3.1991. Against the said judgment and decree, the plaintiffs filed the appeal by impleading the same very persons as respondents, who were defendants before the trial court. During the pendency of the appeal, it transpired from the report of the Process Server that respondent No.4 Chander Bhan had expired during the pendency of the suit. On coming to know the said fact, the petitioners moved an application for impleading the legal representatives of the deceased respondent. The first appellant court dismissed the said application on 10.2.1992 being barred by time and subsequently on 22.8.1992, the appeal was also dismissed being not maintainable on the ground that it was filed against a dead person, without impleading his legal representatives. Against the said order, the instant revision petition has been filed. 3. In this revision petition, the legal representatives of respondent defendant No.4 have been impleaded. 4. At the time, when this revision petition was admitted, the respondents were being represented by Shri I.S. Balhara, Advocate, who has now expired, therefore, actual date notice was issued to the respondents. As per the office report, notices have been duly served upon the respondents, but in spite of that, no body has put in appearance on their behalf. 5. At the time, when this revision petition was admitted, the respondents were being represented by Shri I.S. Balhara, Advocate, who has now expired, therefore, actual date notice was issued to the respondents. As per the office report, notices have been duly served upon the respondents, but in spite of that, no body has put in appearance on their behalf. 5. After hearing learned counsel for the petitioners and going through the impugned order, I am of the opinion that this revision petition deserves to be allowed and the order dated 22.8.1992, passed by the first appellate court is liable to be set aside, as in my opinion, the entire approach of the first appellant court was erroneous and contrary to the provisions of Order XXII Rule 4 (3) of the Civil Procedure Code. Sub-rule (3) of Rule 4, as substituted by this Court, which provides as under : “Where within the time limited by law no application is made under sub-rule (1), the suit shall not abate as against the deceased defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.” In view of the said provision, even if defendant No.4 had died during the pendency of the suit and his legal representatives could not be brought on record, the suit filed by the plaintiffs could not have been abated. In the present case, the petitioners while filing the appeal impleaded Chander Bhan as respondent No.4 in the appeal, because in the decree sheet prepared by the trial court, his name was shown as one of the defendants. It is only during the pendency of the appeal that the factum of the death of the said defendant came to the notice of the petitioners, when the Process Server reported about his death, and immediately thereafter, the petitioners filed an application for impleading the legal representatives of the deceased defendant. Therefore, in my opinion, the mistake committed by the petitioners in impleading Chander Bhan (who had died during the pendency of the suit) as respondent No.4 in the first appeal was a bonafide mistake on their part. Therefore, in my opinion, the mistake committed by the petitioners in impleading Chander Bhan (who had died during the pendency of the suit) as respondent No.4 in the first appeal was a bonafide mistake on their part. Rather, in my opinion, when the said defendant was being represented by an Advocate before the trial court, then it was his duty to brought the said fact to the notice of the trial court or to move an application for impleading the legal representatives of the deceased defendant. Because of the said lapse, the petitioners cannot be allowed to suffer because of the fact that they have filed the appeal by impleading defendant No.4, as was shown in the decree sheet. Therefore, in my opinion, the first appellate court has taken entirely erroneous view by dismissing the application filed by the petitioners for impleading the legal representatives of the deceased defendant-respondent, particularly when they have shown the sufficient reason and cause for not impleading them in the appeal. The first appellate court has further erred while dismissing the appeal of the petitioners on the ground that the same has been filed against a dead person. The appeal filed by the petitioners against many respondents could not be dismissed because one of them had died during the pendency of the trial and the said fact could not be brought on record by his counsel. When the appeal was filed within time, the first appellate court should have allowed the application of the appellants to implead the legal representatives of the deceased defendant and then proceed with the appeal and decide the same on merits, which has not been done in the present case. In similar facts, this Court in Tirath Singh v. Sh. Bal Kishan and others, AIR 1984 Punjab and Haryana 373 set aside the judgment and decree of the first appellate court and remanded the matter to decide the appeal on merits. 6. Consequently, this petition is allowed and the order dated 22.8.1992, passed by the first appellate court, is set aside and the matter is remanded to the first appellate court, with a direction to allow the application of the petitioners to implead the legal representatives of the deceased defendant-respondent No.4 and thereafter, to decide the appeal filed by the petitioners on merits, in accordance with law. -------------