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2015 DIGILAW 1665 (HP)

Kamla Enterprises v. Shamsher Singh

2015-11-06

P.S.RANA

body2015
ORDER P. S. Rana, J. (Oral) Present application was initially filed under Section 151 CPC which was later on converted into application under Order 1 Rule 10 read with Section 151 CPC vide interim order dated 29.10.2015 for permission to delete the name of deceased co-defendant No.4 Harnam Singh from the array of defendants. BRIEF FACTS OF THE CASE 2. Plaintiff M/s. Kamla Enterprises Proprietor Kamlesh Thakur filed a civil suit for recovery of Rs.80 lacs alongwith interest @12% from pendente lite till date of decree and future interest till realization of the decretal amount and special cost of the suit also sought pleaded therein that defendants have obstructed the plaintiff from extracting the raw material from the leased land mentioned in the plaint. 3. Deceased Harnam Singh was impleaded as co-defendant No.4 in C.S. No.99/2008 titled M/s. Kamla Enterprises vs. Shamsher Singh & Others. It is pleaded that during pendency of the civil suit codefendant No.4 Harnam Singh died and applicant filed the present application to delete the name of co-defendant No.4 Harnam Singh from the array of co-defendants in civil suit. 4. Per contra response filed on behalf of co-defendants/non-applicants No.6 to 11 pleaded therein that application under inherent powers is not maintainable in view of specific provisions in the Code of Civil Procedure. It is pleaded that date of death of co-defendant No.4 Harnam Singh is not mentioned in the application. It is further pleaded that name of LRs of co-defendant No.4 also not mentioned in the application and it is pleaded that applicant did not approach the Court with clean hands. It is pleaded that cause of action is joint and not severable and prayer for dismissal of application as well as C.S. No.99/2008 sought. Other non-applicants did not file any response despite opportunity granted. 5. Court heard learned Advocates appearing on behalf of applicant and non-applicants and Court also perused the entire records carefully. 6. Following points arise for determination : Point No. (1) Whether C.S. No.99/2008 is abated qua deceased co-defendant No.4 Harnam Singh and whether cause of action against other co-defendants is severable? Point No.(2) Relief. REASONS FOR FINDNGS UPON POINT No.(1) 7. It is well settled law that no civil suit against dead person should continue as per law. It is admitted case of both the parties that codefendant No.4 Harnam Singh has died. Point No.(2) Relief. REASONS FOR FINDNGS UPON POINT No.(1) 7. It is well settled law that no civil suit against dead person should continue as per law. It is admitted case of both the parties that codefendant No.4 Harnam Singh has died. It is well settled law that if LRs of deceased co-defendant are not impleaded as party within time limited by law then civil suit automatically abates as per Order XXII Rule 4 (3) Code of Civil Procedure 1908. 8. Court has perused the contents of plaint and written statement carefully. Allegations against deceased co-defendant No.4 are personal in nature relating to commission of some personal acts. In view of the fact that allegations in the plaint are personal in nature it is held that cause of action against other co-defendants is severable in the present civil suit and civil suit against other co-defendants will continue. In view of the above stated facts point No. (1) is decided accordingly. Point No.(2) (Relief) 9. In view of findings upon point No.1 above it is held that Civil Suit No.99/2008 titled M/s. Kamla Enterprises vs. Sh. Shamsher Singh & Others against co-defendant No.4 Harnam Singh is abated and it is held that cause of action against other co-defendants is severable and it is held that C.S. No.99/2008 against other co-defendants will continue and it is ordered that name of co-defendant No.4 Harnam Singh will be deleted from the array of co-defendants. OMP No.100 of 2015 is disposed of.