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2018 DIGILAW 1685 (HP)

Lekh Ram v. Prem Lal

2018-09-17

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Instant appeal filed under Order 43, Rule 1(u) read with Section 151 of the Code of Civil Procedure, is directed against the order, dated 26.3.2018(Annexure P6), passed by learned District Judge, (Forest) Shimla, District Shimla, H.P.,in Civil Appeal RBT No.17S/13 of 2017/2015, whereby the judgment and decree, dated 28.7.2015, passed by learned Civil Judge (Senior Division) Court No.1, Shimla,H.P., in Civil Suit No.102/1 of 2012/01, titled as Prem Lal and Others versus State of H.P and Others; has been setaside. 2. Having regard to the nature of the order this Court proposes to pass in the instant appeal, it is not necessary to give detailed facts of the case, save and except that respondents No.1 and 2 ( for short ''plaintiffs) filed a suit seeking declaration and prohibitory as well as mandatory injunctions against the defendants in the Court of learned Civil Judge(Senior Division) Court No.1, Shimla, H.P. During the pendency of aforesaid suit, an application for amendment of plaint came to be filed on behalf of the plaintiffs and learned trial Court allowed the said application. 3. Being aggrieved and dissatisfied with the aforesaid order, passed by the learned trial Court in the application filed under Order 6 Rule 17 CPC, appellantsdefendants filed a petition i.e. CMPMO No.464 of 2009 under Article 227 of the Constitution of India in this Court. During the pendency of aforesaid petition filed under Article 227 of the Constitution of India, an application i.e. CMP No.800 of 2012 came to be filed under Order 1 Rule 10 CPC, with a prayer that name of respondent No.3, namely, Smt. Shanti Devi may be ordered to be deleted from the array of the parties on account of her death. Defendants stated in the application that in the aforesaid case notices were sent for the service of respondent No.3, Smt.Shanti Devi, but in the report it has been disclosed that she is no longer alive. Defendants further averred in the application that respondent No.3, Smt. Shanti Devi died on 2.11.2005, however, during the pendency of the suit before the learned trial court, this fact was not brought to the notice of the trial Court. Defendants further averred in the application that respondent No.3, Smt. Shanti Devi has been succeeded by her sons Prem Lal and Tek Ram ( plaintiffsrespondents) and they are already on record as respondents No.1 and 2. Defendants further averred in the application that respondent No.3, Smt. Shanti Devi has been succeeded by her sons Prem Lal and Tek Ram ( plaintiffsrespondents) and they are already on record as respondents No.1 and 2. Defendants prayed that name of respondent No.3, Smt.Shanti Devi deserves to be deleted for the purpose of disposal of this petition because her estate has been sufficiently represented. 4. This Court vide order dated 24.7.2012, passed in CMP No.800 of 2012, allowed the application and passed the following orders: " Allowed in terms of the prayer clause". 5. Aforesaid order dated 24.7.2012, passed by this Court in CMP No.800 of 2012, attained finality because same was never laid challenge by any of the parties to the lis. Subsequently, this Court vide order dated 6.11.2012 dismissed the CMPMO No.464 of 2009. 6. Learned trial Court after dismissal of the CMPMO No.464 of 2009 having been filed by the defendants, proceeded with the trial and ultimately vide judgment dated 28.7.2015, dismissed the suit having been filed by the plaintiffs. 7. Being aggrieved and dissatisfied with the aforesaid judgment dated 28.7.2015, passed by the learned trial Court, respondentsplaintiffs preferred an appeal in the Court of learned District Judge(Forest),Shimla. Learned District Judge vide judgment dated 26.3.2018 setaside the judgment and decree passed by the learned trial Court and remanded the case back to the learned trial Court with a request to decide the question of representation of the estate of plainitff No.3, Smt. Shanti Devi/ abatement of the suit. In the aforesaid background, defendants have approached this Court in the instant proceedings, praying therein to setaside the judgment passed by the learned First Appellate Court. 8. Having heard learned counsel for the parties and perused the material available on record visavis impugned judgment, dated 26.3.2018, passed by the learned First Appellate Court, this Court finds that judgment and decree passed by the learned trial Court came to be setaside on the ground that judgment and decree, if any, passed against a dead person is a nullity and cannot be allowed to sustain. Learned First Appellate Court arrived at a conclusion that factum with regard to death of plaintiff No.3, Smt. Shanti Devi, during the pendency of the suit before the trial Court never came to be reflected in the order sheets of the trial Court and there is no order regarding representation of the estate of deceased plaintiff No.3 and as such, judgment and decree passed by the learned trial court cannot be allowed to sustain. 9. Careful perusal of the judgment, passed by the learned First Appellate Court, nowhere suggests that factum, if any, with regard to passing of order, dated 24.7.2012 by this Court in CMP No.800 of 2012 filed by the defendants in CMPMO No. 464 of 2009, whereby name of plaintiff No.3, Smt. Shanti Devi, was ordered to be deleted from the array of the parties, was ever brought to the notice of learned First Appellate Court at the time of passing of impugned order/judgment. 10. Mr. Neeraj Gupta, learned counsel representing the respondentsplaintiffs, fairly stated before this Court that question with regard to representation of estate by the plaintiffsrespondents No.1 and 2 after death of Smt. Shanti Devi, plaintiff No.3 was never raised before the learned First Appellate Court in the grounds of appeal, rather during proceedings of the case learned First Appellate Court after having noticed aforesaid illegality committed by the learned trial court rightly remanded back the case to the learned trial court to decide the question of representation of the estate of plaintiff No.3, Shanti Devi/abatement of the suit. 11. Record reveals that defendants in their application filed under Order 1 Rule 10 CPC i.e. CMP No.800 of 2012 filed in CMPMO No.464 of 2009, categorically stated before this Court that Smt. Shanti Devi, respondent No.3 has been succeeded by her sons Prem Lal and Tek Chand(plaintiffs No.1 and 2). Defendants in the aforesaid application further stated before this Court that in the aforesaid proceedings, name of Smt. Shanti Devi, respondent No.3 deserves to be deleted for the purpose of disposal of that petition because her estate has been sufficiently represented. 12. Defendants in the aforesaid application further stated before this Court that in the aforesaid proceedings, name of Smt. Shanti Devi, respondent No.3 deserves to be deleted for the purpose of disposal of that petition because her estate has been sufficiently represented. 12. Taking note of the averments contained in the application, this Court vide order dated 24.7.2012 allowed the application, however it appears that though correction in the memo of parties came to be made at the time of passing final order, dated 6.11.2012 in CMPMO No.464 of 2009 by this Court, but none of the parties to the suit apprised the learned trial Court with regard to deletion of name of Smt. Shanti Devi, respondent No.3 from the array of the parties pursuant to order dated 24.7.2012, passed by this Court and as such, her name continued to be reflected in the memo of parties in the civil suit, which subsequently came to be decided by the learned trial Court vide judgment dated 28.7.2015. There is no discussion, if any, in the judgment passed by the learned First Appellate Court with regard to effect of order dated 24.7.2012, passed by this Court in CMP No.800 of 2012 filed in CMPMO No.464 of 2009, wherein admittedly this Court taking note of the prayer made by the defendants for deletion of name of Smt. Shanti Devi, plaintiff No.3, ordered for deletion of her name. 13. It is none of the case of the respondentsplaintiffs that they were not in the know of the order, dated 24.7.2012, rather bare perusal of the memo of parties filed in the appeal having been filed by the respondentsplaintiffs, itself suggests that respondentsplaintiffs were aware of the fact that name of Smt. Shanti Devi, plaintiff No.3 stood deleted and as such, they themselves chose not to implead her as party respondent in the appeal having been filed by them, laying therein challenge to the judgment and decree passed by the learned trial Court. 14. Leaving it aside, learned First Appellate Court has specifically recorded in para12 of its judgment that in para 8 of the grounds of appeal, it has been averred that plaintiff No.3, Smt. Shanti Devi died on 2.11.2006 and plaintiffs No.1 and 2, who are the appellants in the appeal are the sons of Smt. Shanti Devi. 14. Leaving it aside, learned First Appellate Court has specifically recorded in para12 of its judgment that in para 8 of the grounds of appeal, it has been averred that plaintiff No.3, Smt. Shanti Devi died on 2.11.2006 and plaintiffs No.1 and 2, who are the appellants in the appeal are the sons of Smt. Shanti Devi. Learned First Appellate Court has also taken note of the averments contained in the grounds of appeal having been filed by the defendants that estate of Smt. Shanti Devi has devolved upon plaintiffs No.1 and 2and they sufficiently represent her estate. 15. It is not in dispute that order under challenge by way of CMPMO before this Court was passed in the civil suit having been filed by the respondents/plaintiffs, which is/was also subject matter of the appeal, wherein impugned order came to be passed. Since there is no reference/discussion, if any, with regard to order dated 24.7.2012 ,passed by this Court in CMP No.800 of 2012 filed in CMPMO No.464 of 2009, this Court has reasons to presume that factum with regard to passing of aforesaid order by this Court in CMPMO NO.464 of 2009 was not in the knowledge of the learned District Judge, while passing the impugned order/judgment and as such, this Court does not find it appropriate to comment upon the correctness and genuineness of the order, passed by the learned court below. The question that "what would be the effect of orders dated 24.7.2012, passed by this Court, whereby it had ordered for deletion of name of Smt. Shanti Devi", is necessarily required to be considered and decided by the learned First Appellate Court in the appeal having been filed by the respondents/plaintiffs. 16. Consequently, in view of the detailed discussion made hereinabvoe, the impugned order/judgment, dated 26.3.2018 is setaside and matter is remanded back to the learned First Appellate Court to decide the appeal afresh. It is clarified that this Court has not expressed any opinion on merits of the case, especially effect, if any, of order, dated 24.7.2012 passed by this Court in CMP No.800 of 2012 filed in CMPMO No.464 of 2009 and as such, it shall be open for the Court below to decide the question of representation of estate of plaintiff No.3, Smt. Shanti Devi as well as abatement of the suit, if any. 17. 17. Parties through their respective counsel are directed to appear before the learned First Appellate Court on 26.9.2018. Accordingly, in view of the aforesaid, the present appeal stands disposed of alongwith pending applications, if any.