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2017 DIGILAW 762 (HP)

Sant Ram v. Hargopal Singh

2017-07-06

DHARAM CHAND CHAUDHARY

body2017
Dharam Chand Chaudhary, J. Orders under challenge in this petition are Annexure P-7 (colly.), whereby the learned trial Court has disposed of two applications i.e. one under Order 22 Rules 4 and 9 CPC, registered as CMA No.605-6 of 2016 and another under Section 5 of the Limitation Act, registered as CMA No.606-6 of 2016 filed for substitution of legal representatives of deceased defendant Sant Ram on condonation of delay. Another set of order has been passed again in an application under Order 22 Rules 4 and 9 CPC registered as CMA No.607-6 of 2016 and under Section 5 of the Limitation Act registered as CMA No.608-6 of 2016, filed for substitution of the legal representatives of defendant No.2 Mauzi. While defendant No.1 Sant Ram had expired on 5.8.2003, defendant No.2 Mauzi had expired on 1.3.2003 i.e. during the pendency of Civil Revision No. 187 of 2008 in this Court. 2. The application initially filed by the respondents herein, plaintiffs in the trial Court, on 13.9.2004, was however, dismissed by learned trial Court vide order dated 21.9.2005. This order was assailed by the plaintiff further in the Court of learned District Judge, Bilaspur in an appeal. The appeal was also dismissed by learned District Judge, on 9.9.2008. It is the said order, which was further assailed before this Court in C.R. No.187 of 2008. This Court while allowing the revision petition vide judgment Annexure P-4 has remanded the case to trial Court with a direction to the respondents-plaintiffs to file the application afresh under Order 22 Rules 4 and 9 CPC for seeking substitution of the legal representatives of deceased defendant No.1 Sant Ram and quashing of abatement of the suit, if any. Since defendant No.2, Mauzi had expired during the pendency of revision petition in this Court, therefore, his legal representatives were admittedly substituted by this Court during the pendency of the revision petition. 3. Being so and on remand of the case to the trial Court, the plaintiffs have filed four applications referred to hereinabove with a prayer to substitute the legal representatives of deceased defendant Sant Ram and setting aside the abatement of the suit on condonation of delay qua which the application was filed separately. 3. Being so and on remand of the case to the trial Court, the plaintiffs have filed four applications referred to hereinabove with a prayer to substitute the legal representatives of deceased defendant Sant Ram and setting aside the abatement of the suit on condonation of delay qua which the application was filed separately. The remaining two applications were filed with a prayer to take on record of the suit, the legal representatives of defendant No.2 Mauzi, who were already on record of the revision petition. Learned trial Court, after taking on record the version of the petitioners herein, defendants in the trial Court, being the legal heirs of deceased defendant Sant Ram and Mauzi and affording the parties on both sides the opportunity of being heard, has allowed all the four applications vide order Annexure P-7 (Colly.) and the legal representatives of the deceased defendants have been taken on record. 4. The impugned order though has been assailed before this Court on several grounds, however, unsuccessfully for the reason that the deceased defendants were duly represented in the trial Court. Therefore, on the death of deceased defendant Sant Ram on 5.8.2003, it was for his legal representatives or learned counsel representing him to have apprised the Court about his death. Had the consequential steps been not taken by the plaintiff even on taking notice of the death of the said defendant, the petitioners herein would have some case. 5. Admittedly, the factum of death of defendant Sant Ram was not disclosed either by his legal representatives or by learned counsel, who was representing him in the trial Court. Since he was residing in different village and even not the members of the same community viz that of the plaintiff, therefore, it can reasonably be believed that they had no occasion to acquire the knowledge of his death. It has come in the application Annexure P-5 (colly.) (page 30) that when they came to know about his death, an application for substitution of his legal representatives was filed on 13.9.2004. The said application, as discussed hereinabove was dismissed by the trial Court on 21.9.2005, however, in a revision petition preferred by the plaintiff in this Court, such order was quashed and the case remanded to the trial Court vide judgment Annexure P-4. The said application, as discussed hereinabove was dismissed by the trial Court on 21.9.2005, however, in a revision petition preferred by the plaintiff in this Court, such order was quashed and the case remanded to the trial Court vide judgment Annexure P-4. The plaintiff, therefore, had successfully pleaded and proved before the trial Court that the factum of death of deceased defendant Sant Ram was not in their knowledge and notice and when they come to know about his death, the application was filed there and then. Otherwise also, the approach, while considering an application of this nature, should not be technical and rather liberal. It is held so by this Court in CMPMO No. 4233 of 2013, titled Manju Singh and Others versus Champa Mahajan, while placing reliance on the judgment of the apex Court in Perumon Bhagvathy Devaswom, Perinadu Village versus Bhargavi Amma (dead) by LRs and Other, (2008) 8 SCC 321 . The petitioners-defendants as such cannot be said to be heard of any complaint qua their substitution as legal representatives of deceased defendant Sant Ram and also the order of setting aside the abatement of the suit by the trial Court. 6. Now if coming to the substitution of the legal representatives of deceased defendant No.2 Mauzi, they, as a matter of fact, were brought on record during the pendency of the revision petition in this Court. At the time of his death, the revision petition was pending disposal in this Court. It is trite that the question of substitution of legal representatives of deceased party and abatement of the suit/appeal/petition can only be considered and decided by that very Court where the lis at the time of death of such party was pending. Otherwise also, when the suit was dismissed by the trial Court as abated vide order dated 21.9.2005, there was no occasion to the plaintiff to have approached the trial Court for substitution of the legal representatives of defendant No.2 Mauzi at the time of his death. Otherwise also, when the suit was dismissed by the trial Court as abated vide order dated 21.9.2005, there was no occasion to the plaintiff to have approached the trial Court for substitution of the legal representatives of defendant No.2 Mauzi at the time of his death. It is pertinent to note that where the legal representatives of the said defendant were already substituted during the pendency of the civil revision, no other and further application was required to be filed on remand of the case for the purpose and the record of the suit should have been amended on the basis of the copy of the judgment, which usually is sent to the trial Court after the decision of revision/appeal or other proceedings instituted against the order of the Subordinate Court. The plaintiffs to be on safer side, may have filed the application for substitution of his legal representatives afresh in the trial Court and if the trial Court has allowed the said application and ordered to take on record his legal representatives, the impugned order cannot be said to be illegal or invalid. 7. In view of what has been said hereinabove, there is no merit in this petition and the same is accordingly dismissed. The parties through learned counsel representing them are directed to appear in the trial Court on 4th August, 2017. The petition stands disposed of accordingly.