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2018 DIGILAW 1281 (HP)

Thakur v. Sarvan Singh

2018-07-12

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : Tarlok Singh Chauhan, J. This petition under Article 227 of the Constitution of India takes exception to the order passed by learned Civil Judge (Senior Division), Sarkaghat, District Mandi, H.P. on 10.8.2017 whereby he condoned the delay of more than 8 years and allowed the application under Order 22 Rule 3 and 9 of the Code of Civil Procedure (for short Code) filed by the respondents/plaintiffs for bringing on record the legal representatives of deceased Parkash Chand. 2. It is not in dispute that during the pendency of the Civil Suit one of the plaintiff Ramesh Chand expired on 15.12.2009 and an application for bringing on record his legal representatives was filed on 20.12.2010. This application was allowed by the learned Civil Judge vide order dated 7.10.2014 and the same was assailed before this Court by way of CMPMO No. 18 of 2015. Notices in this petition were issued to the plaintiffs and it was then that it came to light that one of the other plaintiff Parkash Chand had also expired way back in the year 2009. Even though the aforesaid CMPMO was eventually dismissed, however, during the pendency thereof, this Court had allowed the legal representatives of deceased Ramesh Chand to be brought on record. 3. As regards the application for bringing on record the legal representatives of deceased Parkash Chand admittedly the same was filed after more than 8 years and the learned trial Court has allowed the application mainly on the ground that even this Court in similar circumstances allowed the legal representatives of deceased plaintiff Ramesh Chand to be brought on record. This would be evidently clear from the following observations: “It is also mentioned here that in the present case, similar application was allowed by this Court when plaintiff No.3 Ramesh Chand had expired in the year 2009. Against order of this Court dated 07.10.2014, present defendants had filed CMPMO No. 18 of 2015 in Hon’ble High Court which was dismissed and L.Rs of deceased plaintiff No.3 Ramesh Chand were ordered to be brought on record by Hon’ble High Court. On the same analogy, this application has to be allowed.” 4. Against order of this Court dated 07.10.2014, present defendants had filed CMPMO No. 18 of 2015 in Hon’ble High Court which was dismissed and L.Rs of deceased plaintiff No.3 Ramesh Chand were ordered to be brought on record by Hon’ble High Court. On the same analogy, this application has to be allowed.” 4. In addition thereto, the learned trial Court for some strange reason distinguished the judgment of Prabha Devi and another vs. Hari Krishan Sharma & others (2003) 2 S.L.J. 1490 only on the ground that the judgment as relied upon dealt with an application under Order 22 Rule 4 of the Code whereas the present application had been filed under Order 22 Rule 3 of the Code. 5. To say the least, the manner in which the learned trial Court has allowed the application is not at all satisfactory. Firstly, the Court could not have drawn a parity and only on the basis thereof, allowed the legal representatives of deceased Parkash Chand to be brought on record. 6. That apart, the judgment cited before the trial Court could not have been distinguished only on account of it being a case falling under Order 22 Rule 3 of the Code and not one under Order 22 Rule 4 of the Code. The Court appears to be oblivious to the fact that the principles for deciding the question of limitation and abatement whether it relates to the death of the plaintiff or defendant, are absolutely the same. 7. Having said so, I find merit in this petition and the same is accordingly allowed and the order dated 10.8.2017 passed by learned Civil Judge (Senior Division), Sarkaghat, District Mandi, is not sustainable in the eyes of law and is accordingly set-aside. The learned trial Court is directed to decide the application(s) afresh in accordance with law. 8. The parties through their counsel(s) are directed to appear before the learned trial Court on 30.7.2018. 9. The petition is disposed of in the aforesaid terms, so also the pending application(s), if any, leaving the parties to bear their own costs.