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Himachal Pradesh High Court · body

2019 DIGILAW 1112 (HP)

Kirpu v. Shiv Ram

2019-08-06

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, Judge (Oral): By way of this petition filed under Article 227 of the Constitution of India, prayer is for setting aside order, dated 23.06.2018, passed by the Court of learned Civil Judge (Junior Division), Court No. 7, Shimla in Civil Suit No. 83-1 of 2010, titled as Smt. Gulabu and others Vs. Sh. Shiv Ram and others, vide which, an application filed under Order 7, Rule 14 of the Code of Civil Procedure with the prayer to place on record certain documents by the present petitioners, who are plaintiffs before the learned Trial Court, has been dismissed. 2. When this case was taken up for consideration, an application was filed under Order 22 Rules 4 & 9 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as =the Code'), i.e., CMP(M) No. 653 of 2019 by the petitioners herein to bring on record the legal representatives of deceased respondent No. 2. A perusal of the averments made in the said application demonstrated that respondent No. 2, who is defendant No. 2 in the Civil Suit, had died on 16.06.2017, i.e., during the pendency of the Civil Suit and before the pronouncement of impugned order, which has been assailed before this Court by way of filing present petition under Article 227 of the Constitution of India. 3. Faced with this situation, on 15.07.2019, this Court had passed the following order: ?CMP(M) Nos. 652 and 653 of 2019 By way of these applications, a prayer has been made to bring on record legal representatives of deceased respondent No. 2, namely, Sh. Radha Krishan. As per averments made in the application, said respondent is stated to have died on 16.6.2017. This petition has been filed against an order passed by the learned Trial Court on 23.06.2017, vide which, an application filed by the present petitioners, who are the plaintiffs before the learned Trial Court, under Order 7, Rule 14 of the Code of Civil Procedure, stands dismissed. Thus, it is apparent that respondent No. 2, whose local representatives are now being sought to be brought on record by way of present application, was dead much before the impugned order was passed. Thus, it is apparent that respondent No. 2, whose local representatives are now being sought to be brought on record by way of present application, was dead much before the impugned order was passed. Before going into the merit of the present petition, learned Counsel for the parties are requested to assist the Court as to what will be the fate of the impugned order, which admittedly was passed when one of the contesting defendants was already dead. List on 22.07.2019.? 4. Today, when the matter was taken up for consideration, learned counsel for the parties fairly submitted that as after the death of defendant No. 2, the record of the case had become defective, in law, without bringing on record the legal representatives of deceased defendant, learned Court below could not have had further proceeded with the matter and no order on the application filed under Order 7, Rule 14 of the Code could have been passed by the learned Trial Court. 5. At this stage, learned counsel for the respondents-defendants points out and rightly so that in fact onus was upon the plaintiffs before the learned Trial Court, who are the petitioners herein, to have had moved an appropriate application to bring on record the legal representatives of deceased defendant No. 2 and they therefore cannot be permitted to take benefit of their own acts of omission. He further submits that it will be in the interest of justice in case this petition is disposed of by setting aside the impugned order, but with the direction that if before the learned Trial Court an application is filed by the petitioners to bring on record the legal representatives of deceased defendant No. 2, then the same be decided by the learned Trial Court after hearing the respondents herein, who shall be highlighting the factum of the suit itself having been abated as of now on account of death of defendant No. 2 and timely steps having not taken by the plaintiffs to bring on record the legal representatives of the said defendant. 6. Ordered accordingly. 7. 6. Ordered accordingly. 7. In other words, the impugned order, dated 23.06.2018, which has been passed by the learned Court below on an application filed under Order 7, Rule 14 of the Code is set aside aside, not on merits but on the ground that the said order was passed ignoring the fact that the case record had become defective on account of death of defendant No. 2. 8. It is further ordered that before proceeding with the matter any further, learned Trial Court will first adjudicate upon the effect of the death of defendant No. 2 during the pendency of the suit, meaning thereby, as to whether the suit as of now stands abated or not. In case any application is filed by the plaintiffs to bring on record the legal representatives of deceased defendant No. 2, the same shall be decided after affording opportunity of being heard to the respondents as also to the proposed legal representatives of deceased defendant No. 2 and while deciding the said application reasons for delay in filing the application as also the effect of abatement, if any, shall be taken into consideration by the learned Trial Court before passing any order. In case the Court comes to the conclusion that the suit stands abated either qua defendant No. 2 or as a whole, then appropriate order in this regard shall be passed by the learned Trial Court and in case the learned Trial Court comes to the conclusion that legal representatives of defendant No. 2 are to be brought on record, then also appropriate order shall be passed. Thereafter, learned Trial Court shall also adjudicate afresh the application so filed by the plaintiffs under Order 7. Rule 14 of the Code. It is clarified that the above observations are only for the guidance of the learned Trial Court, but what orders are to be passed by the learned Trial Court henceforth in the suit, shall be the prerogative of the learned Trial Court and it shall not be influenced by any observation made by this Court in this order. 9. The parties through their learned counsel are directed to appear before the learned Trial Court on 26th August, 2019. The petition stands disposed of in above terms, so also pending miscellaneous applications, if any.