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2018 DIGILAW 82 (ALL)

Babu Ram v. Mahesh Misra

2018-01-09

SURYA PRAKASH KESARWANI

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JUDGMENT : Surya Prakash Kesarwani, J. 1. Heard Sri Ram Krishna, learned counsel for the petitioner/defendant No. 1 and Sri A.K. Sachan, learned counsel for the plaintiff-respondent Nos. 1 to 5. No one appears on behalf of respondent Nos. 6 to 10 herein. 2. Briefly stated facts of the present case are that one Sri Shiv Charan Lal, father of the respondent Nos. 1 to 5 herein, had filed O.S. No. 129 of 1987, Shiv Charan Lal v. Babu Ram and Others impleading Sri Babu Ram (petitioner herein), Nathoo Lal S/o Nand Ram, Janki Prasad S/o Loki, Chandan S/o Khyoraj, Chhangey S/o Lala Ram and Smt. Nathho widow of Reet Ram as defendant Nos. 1 to 6, claiming relief that a decree be passed in favour of the plaintiff and against the defendants whereby sale deed dated 03.12.1986 executed by the defendant Nos. 2 to 6 in favour of the defendant No. 1 registered in the office of the Sub-Registrar, Pilibhit at Bahi No. 1 Jild No. 1283 at page 348/349 at Serial No. 4275 on 04.12.1986, be declared void and cancelled. In the aforesaid suit, the defendant Nos. 2, 3 and 4 had put in their appearance through counsel. Several dates including 26.08.1987, 10.09.1987, 07.10.1987, 29.08.1987 and 11.01.1988 etc. were fixed for filing written statement and for framing of issues but the defendant Nos. 2, 3 and 4 have not filed written statement, although they had filed an objection to the stay application. Subsequently, none appeared on behalf of the aforesaid defendant Nos. 2, 3 and 4. The written statement was filed by the defendant No. 1/petitioner herein on 03.02.1998. In para-17 of his written statement, the defendant No. 1 stated that the defendant Nos. 2, 3 and 4 namely Sri Nathoo Lal, Janki Prasad and Chandan died during pendency of the suit before 7 years, 6 years and 2 years respectively. 3. The plaintiff was an illiterate old villager residing in an interior area. After getting the knowledge about the death of the defendant Nos. 2, 3 and 4, he contacted his counsel who advised him to enquire about the heirs and legal representatives of the aforesaid deceased defendants. The main contesting defendant in the above suit is the defendant No. 1/ petitioner herein who has been contesting the suit. Affidavits being Paper No. C28, C27 and C26 were filed by the defendant Nos. 2, 3 and 4, he contacted his counsel who advised him to enquire about the heirs and legal representatives of the aforesaid deceased defendants. The main contesting defendant in the above suit is the defendant No. 1/ petitioner herein who has been contesting the suit. Affidavits being Paper No. C28, C27 and C26 were filed by the defendant Nos. 2, 3 and 4 who had stated that the disputed property has been transferred by them to the defendant No. 1 by way of aforesaid registered sale deed dated 03.12.1986. 4. On these facts, the plaintiff filed an Application dated 15.04.1998 supported by an affidavit, for certain amendment in the plaint as discussed in the impugned orders. This was followed by another Application dated 06.12.1998 under Order 22, Rule 4 C.P.C. whereby permission was sought to write word "deceased" in the array of parties against the defendant Nos. 2, 3 and 4. These Applications being C58 and C71 and another Application namely C60 were heard by the court of Additional Civil Judge, (J.D.) Pilibhit and were decided by order dated 14.01.1999. The Applications C58 and C71 were allowed under order XII Rule 4, C.P.C. and the Application C60 was rejected. Necessary amendment was directed to be incorporated in terms of Application C71 within seven days. 5. Aggrieved with this order, the defendant No. 1/ petitioner herein filed a Civil Revision No. 5 of 1999. By this time, the plaintiff Shiv Charan Lal had died and, therefore his heirs and legal representatives being respondent No. 1 to 5 herein were impleaded as respondent Nos. 1/1, 1/2, 1/3, 1/4, and 1/5 in the aforesaid Civil Revision No. 5 of 1999. The aforesaid Civil Revision was dismissed by order dated 12.08.2005 passed by the court of Additional District Judge, Court No. 3, Pilibhit. Aggrieved with these two orders dated 14.01.1999 and 12.08.2005, the defendant No. 1/petitioner herein has filed the present writ petition. 6. Learned counsel for the petitioner submits that the power conferred under Order 22, Rule 4, C.P.C. could not have been exercised by the court below in view of the fact that the Application was moved much after the period of limitation. 7. Learned counsel for the plaintiffs-respondent Nos.1 to 5 supports the impugned orders. 8. I have carefully considered the submissions of learned counsel for the parties and perused the record of the writ petition before me. 9. 7. Learned counsel for the plaintiffs-respondent Nos.1 to 5 supports the impugned orders. 8. I have carefully considered the submissions of learned counsel for the parties and perused the record of the writ petition before me. 9. Undisputedly, the defendant Nos. 2 to 6 of O.S. No. 129 of 1987 had executed a registered sale deed dated 03.12.1986 in favour of the defendant No. 1/petitioner. The O.S. No. 129 of 1987 was filed by the plaintiff Shiv Charan Lal for cancellation of the aforesaid sale deed. Despite several opportunities afforded by the trial court, the defendant Nos.2, 3 and 4 have not filed written statement. Initially they appeared through counsel but subsequently they stopped putting their appearance. The written statement was filed by the defendant No. 1/petitioner herein after about 11 years on 03.02.1998. Undisputedly the defendant No. 1/petitioner herein is the only contesting defendant in the aforesaid suit. The Applications were filed by the plaintiff Shiv Charan Lal supported by affidavits and a delay condonation application when he came to know about the death of defendant Nos.2, 3 and 4 as disclosed in the written statement of the defendant No. 1. It is also not disputed that the plaintiff Shiv Charan was an illiterate villager residing in an interior village. He was not having the knowledge about the death of the defendant Nos. 2, 3 and 4. When he came to know about it, he immediately filed the Applications in question which were allowed by the trial court relying upon the decision of Hon'ble Supreme Court in the case of P.P.K. Gopalan Nanbiyar v. P.P.K. Balakrishnan Nanbiyar, AIR 1985 SC 1852. The revisional court also considered the objections raised by the defendant No. 1/petitioner herein and found no error of law or fact in the order dated 14.01.1999 passed by the court of 1st Additional Civil Judge (J.D.) Pilibhit. The findings recorded in the impugned orders particularly in paragraphs 9 to 12 are findings of fact based on relevant material available on record. Since it is admitted to the defendant No. 1/petitioner herein that all rights and interest in the disputed property have been transferred by the defendant Nos. 2, 3 and 4 in his favour and as such the courts below have not committed any error of law to come to the conclusion that there was no need of substitution of legal representatives of the deceased defendant Nos. 2, 3 and 4 in his favour and as such the courts below have not committed any error of law to come to the conclusion that there was no need of substitution of legal representatives of the deceased defendant Nos. 2, 3 and 4. Under the circumstances, I do not find any error of law in the impugned orders. The writ petition is wholly misconceived and, therefore, deserves to be dismissed. 10. In result, the writ petition fails and is hereby dismissed. 11. Interim order is vacated. 12. A direction is also issued to the concerned court below to decide the aforesaid O.S. No. 129 of 1987 in accordance with law, expeditiously, without granting any unnecessary adjournment to either of the parties.