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2016 DIGILAW 1290 (HP)

Sarjan v. Bimla

2016-07-07

DHARAM CHAND CHAUDHARY

body2016
JUDGMENT : Dharam Chand Chaudhary, J. RSA No. 592 of 2015 & CMP Nos. 3429 & 3430 of 2016 Plaintiffs are in second appeal. They are aggrieved from the judgment and decree dated 11.9.2015 passed by learned Additional District Judge-II, Shimla camp at Rohroo in Civil Appeal No. RBT-81-R/13 of 2014/2013. 2. The suit filed by the plaintiffs for declaration that they have become owners of the suit land by way of adverse possession and permanent prohibitory injunction restraining the defendants from causing any interference in the suit land comprised in Khewat No. 46 min, Khatauni No. 96, Khasra Nos. 5, 364, 490, 491, 759, 761, 766 and 776, Kita 8, measuring 1-64-94 hectares situated in Mohal Saundari, Tehsil Chirgaon, District Shimla, H.P. was dismissed by learned Civil Judge (Senior Division), Court No. 1, Rohroo on 26.4.2013 and Counter Claims preferred by the defendants were decreed and the decree for possession of the suit land passed in their favour. The plaintiffs were directed to handover the possession of the suit land to the defendants within two months. Learned Lower Appellate Court has dismissed the appeal filed by the plaintiffs. The legality and validity of the impugned judgment and decree has been questioned before this Court in the present appeal. 3. Process against the respondents-defendants was issued in the appeal. Notices issued to respondents No. 4 and 5 were received back with the report that they have expired. This has led in filing the two applications, as aforesaid, under Order 22 Rule 4 (4) of the Code of Civil Procedure for seeking exemption from substitution of the legal representatives of the said respondents on the ground that they have neither filed the written statement to the suit in the trial Court nor contested the same at any stage and rather allowed themselves to be proceeded against exparte. 4. The death certificates, annexed to the applications aforesaid, reveal that respondent No. 5 Moti Ram has expired on 20.6.2012 i.e. during the pendency of the suit in the trial Court whereas respondent No. 4 Nand Ram on 13.10.2014 during the pendency of the appeal in the learned Lower Appellate Court. 5. 4. The death certificates, annexed to the applications aforesaid, reveal that respondent No. 5 Moti Ram has expired on 20.6.2012 i.e. during the pendency of the suit in the trial Court whereas respondent No. 4 Nand Ram on 13.10.2014 during the pendency of the appeal in the learned Lower Appellate Court. 5. Be it stated that in a case where the defendants has failed to file written statement and if written statement is filed to contest the suit or allow himself to be proceeded against exparte, the plaintiff can be exempted from substitution of the legal representatives of the said defendant. However, the application for the purpose is required to be filed during the pendency of the suit/appeal in the Court below. I am drawing support in this regard from the judgment of this Court in Chet Ram versus Ami Chand & ors., Latest HLJ 2015(HP) 1440 in which after taking note of the law laid down by the Apex Court in T. S. Gnanavel Versus T.S. Kanagaraj and Another, (2009)14 SCC 294 , that the defendants died during the pendency of the suit for specific performance of the contract for sale and no exemption was sought at the instance of the plaintiff from bringing on record the heirs and legal representatives of the said defendants before the judgment was pronounced, the judgment and decree was held to be nullity and as such quashed. 6. In view of the ratio of the judgment supra, the exemption from substitution of the legal representatives of respondents No. 4 and 5 cannot granted at this stage as the same could have only been sought before the judgment was pronounced by the trial Court/lower Appellate Court. 7. The judgment and decree passed by both Courts below are, therefore, quashed and set aside. The suit is remanded to the trial Court for fresh disposal after deciding the question of abatement of the suit on the death of deceased defendant No. 5 Shri Moti Ram and substitution of his legal representatives with further direction to remit the record thereafter to the lower Appellate Court for similar action i.e. disposal of the appeal afresh after deciding the question of abatement of the appeal, if any, on the death of deceased respondent No. 4 Nand Ram and the substitution of his legal representatives. 8. 8. The parties through learned Counsel representing them are directed to appear in the trial Court on 1.8.2016. There shall be a direction to the trial Court to decide the suit afresh in the light of this judgment at the earliest, however, not beyond 30th September, 2016. On receipt of the record of the suit, there shall be a direction to the lower Appellate Court to decide the appeal afresh at the earliest however, not beyond 31st December, 2016. 9. The appeal stands disposed of accordingly. Pending applications, if any, shall also stand disposed of.