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Himachal Pradesh High Court · body

2013 DIGILAW 196 (HP)

Varinder Kumar v. Ramesh Aggarwal

2013-03-24

RAJIV SHARMA

body2013
JUDGMENT Per Rajiv Sharma, Judge: This petition is directed against the order dated 18.3.20 13 passed by learned District Judge, Solan, in Application No.170-S/6 of 2011. 2.“Key facts” necessary for the adjudication of this petition are that respondents/plaintiffs (hereinafter referred to as the “plaintiffs” for the sake of convenience) filed a suit bearing Civil Suit No. 38/1 of 09/2006 for recovery of possession and mesne profits along with interest against the petitioners/defendants (hereinafter referred to as the “defendants” for the sake of convenience) in the Court of learned Civil Judge (Junior Division), Kasauli, District Solan, H.P.. Learned trial court dismissed the suit vide judgment and decree dated 12.5.2009. The plaintiffs preferred an appeal bearing Civil Appeal No.39-S/ 13 of 2009 before the learned District Judge, Solan, who allowed the appeal vide judgment dated 2.8.20 10 and remanded back the matter to the learned trial court with direction to decide the same afresh in accordance with law after deciding application under Order 22 Rule 4 read with Section 151 of the Code of Civil Procedure for bringing on record the legal representatives of deceased Vimla Devi, who expired on 10.2.2009, during pendency of the suit. Feeling aggrieved, the defendants preferred an appeal bearing FAO No.481/2010 against the judgment dated 2.8.20 10 before this Court, which was disposed of on 19.4.2011. Thereafter, the defendants filed an application No.170- S/6 of 2011 under Order 47 Rule 1 of the Code of Civil Procedure for review of judgment dated 2.8.2010 before the learned District Judge, Solan. He dismissed the application vide order dated 18.3.20 13. Hence, this petition. 3. Learned trial court dismissed the Civil Suit No.38/1 of 09/2006 filed by the plaintiffs on 12.5.2009. However, fact of the matter is that one of the defendants, namely, Vimla Devi, had expired on 10.2.2009 during the pendency of the suit. No application under Order 22 Rule 4 of the Code of Civil Procedure was filed for bringing on record legal representatives of deceased Vimla Devi before the learned trial court. The plaintiffs filed an appeal, as noticed hereinabove, before the learned District Judge, Solan, who remanded back the suit to the learned trial court with direction to decide the application under Order 22 Rule 4 read with Section 151 of the Code of Civil Procedure for bringing on record the legal representatives of deceased Vimla Devi. The plaintiffs filed an appeal, as noticed hereinabove, before the learned District Judge, Solan, who remanded back the suit to the learned trial court with direction to decide the application under Order 22 Rule 4 read with Section 151 of the Code of Civil Procedure for bringing on record the legal representatives of deceased Vimla Devi. As noticed above, Vimla Devi, defendant No.2 died on 10.2.2009 when the case was at the arguments stage and the arguments were concluded on 23.4.2009 and thereafter the judgment was pronounced on 12.5.2009. An application has been filed under Order 47 Rule 1 of the Code of Civil Procedure seeking review of judgment dated 2.8.20 10. The judgment and decree passed against a dead person, that is defendant No.2, was nullity. Plea was also raised before the learned District Judge in review application that the application was in fact decided by the learned District Judge under Order 22 Rule 4. This is factually incorrect. In fact, learned District Judge has directed the learned trial court to decide application under Order 22 Rule 4 of the Code of Civil Procedure. The fact whether the suit has been abetted could only be decided by the court where the proceedings were pending at the time of death of defendant No.2 Vimla Devi. The question of bringing on record the legal representatives of defendant No.2 Vimla Devi was also to be considered by the learned trail court. Learned trail court in fact has already allowed the application under Order 22 Rule 4 of the Code of Civil Procedure on 11.11.2010 after the case was received by way of remand by the learned trial court on the basis of judgment dated 2.8.20 10. There is also reference to the order dated 19.4.2011 passed in FAO No.481/2010, wherein this Court has observed that correction, if any, was to be made by the court who passed the order itself. 4. Learned Single Judge of this Court in Sher Singh and others. Vs. Raghu Ram and others, 1981 Sim. L.C. 25 has held that an application for setting aside the abatement and substituting heirs of the deceased defendant should have been made and dealt with by the trial court, in which abatement occurred. Learned Single Judge has held as under:- “11. Learned Single Judge of this Court in Sher Singh and others. Vs. Raghu Ram and others, 1981 Sim. L.C. 25 has held that an application for setting aside the abatement and substituting heirs of the deceased defendant should have been made and dealt with by the trial court, in which abatement occurred. Learned Single Judge has held as under:- “11. In view of my observations made above that an application for setting aside the abatement and substituting the heirs of the deceased defendant should have been made and dealt with by the trial Court in which the abatement occurred. I set aside the impugned order dated 2 1.3.1980 passed by the Additional District Judge and direct that the plaintiffs’ application under Order 22 Rules 4 and 9 of the Code made for the above purpose shall be dealt with by the trial Court. For the reasons already stated that I further direct that the appeal of the plaintiffs against the order dated 11.9.1979 passed by the trial court now pending before the Additional District Judge and which had been filed against a dead person be dismissed as not maintainable. The order dated 11.9.1979 passed by the trial Court on plaintiffs’ application under Order 39 Rules 1 and 2 of the Code being a nullity, the trial Court is directed to re-hear that application and pass a fresh order thereon if considered necessary after the disposal of the plaintiffs’ application under Order 22 Rules 4 and 9 of the Code.” 5. Learned Single Judge of this Court in Tulsi Ram and others vs. Krishni Devi and others, 2000 (2) Shim. L.C. 172 has held as under:- “3. There is no dispute that defendant Paras Ram died on 22.10.1989, that is , during the pendency of the appeal before the lower Appellate Court. It is also not disputed that neither of the parties informed the lower Appellate Court about the death of defendant Paras Ram nor steps were taken to bring on record the legal representatives of the said deceased with the result that the lower appellate Court proceeded to pass the impugned judgment and decree on merits as if defendant Paras Ram, was alive. 4. 4. In the given circumstances of the case, there is no findings whatsoever of the lower appellate Court as to the effect of the death of said Paras Ram and not bringing his legal representatives on record in the appeal before it in view of the provisions of Order 22, Rules 4 and 10-A of the Code of Civil Procedure, that is to say, there is no finding as to whether the appeal of the plaintiffs before the lower appellate court had abated. 5. Now the questions necessarily involved in matter are: (a) Whether the appeal before the lower Appellate Court, had abated, if so the extent and effect of the abatement? (b)Whether abatement should be set aside or not, and ( c) Whether the LRs of the deceased may be allowed to be brought on record or not? 6. As and when such questions, as aforesaid, arise in relations to a suit or appeal at the first instance there are to be decided by the Court in which the suit or appeal was pending at the time of the death of the party and the abatement took place. (See Ramsewak Mishra and another v. Mt. Deorati Kuer and othes, AIR1962 Patna 178; Muna Devi and another v. Ram Jhari Devi and others AIR 1969 Patna 314 and Sher Singh and others v. Raghu Ram and others, 1981 Shim L.C. 25).” 6. This Court in Dewana Ram and another vs. Gian Chand Malhotra and others, Latest HLJ 2011 (HP) 1420 has held as under:- 7. Similar view has been taken by the learned Single Judge in Ram Rakha and others Vs. Brahma Nand and others, 1994 (Supp) S.L.C. 29. The learned Single Judge has held as under: “One of the grounds of appeal pertaining to the aforesaid preliminary substantial question of law so raised by Shri Kapil Dev Sood, appearing on behalf of the appellants that the impugned judgment passed by the learned District Judge is a nullity inasmuch as it has been passed against one of the dead landowners. It is well settled that ordinarily a decree passed against a dead person is a nullity except in those cases where the person died after the hearing of the arguments but before pronouncing of the judgment by the courts below. It is well settled that ordinarily a decree passed against a dead person is a nullity except in those cases where the person died after the hearing of the arguments but before pronouncing of the judgment by the courts below. Another established principle is that the question whether the suit is bated in toto or in part, has also to be decided by the same court where during the pendency of the appeal one of the parties had expired before hearing the arguments and where he being a necessary party to the lis, his legal representatives have not been brought on record.” 8. Similarly, this Court in Jagdish Versus Ram Karan and others, 2002(1) Current Law Journal (H.P.) 232 has held that whether there was sufficient cause for setting aside the abatement or whether the legal representatives of the deceased are to be brought on record or not in relation or a suit or appeal at the first instance, is to be decided by the Court in which the suit or appeal was pending at the time of the death of the party and the abatement took place. Consequently, in view of this settled position, there is no alternative but to set aside the judgments and decrees passed by both the Courts below and to remand the case to the trial Court.” 7 There is no illegality or perversity in the order, dated 18.3.20 13 passed by learned District Judge, Solan, in Application No.170-S/6 of 2011. 8.Accordingly, in view of the observations and analysis made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No order as to costs.