Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 1331 (JHR)

Birendra Kumar Choubey v. Madan Mohan Singh

2019-07-24

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : 1. This writ petition is under Article 227 of the Constitution of India whereby and whereunder orders dated 21.07.2015 passed in Title Suit No.37/2010 and order dated 02.02.2017 passed in the aforesaid suit, are under challenge. 2. The order dated 21.07.2015 has been passed while dealing with the petition filed under Order XXII Rule 4 (4) read with Section 151 of the Code of Civil Procedure vide order dated 02.02.2017 has been passed dealing with the petition filed under Order I Rule 10(2) read with Section 151 of the Code of Civil Procedure. 3. The brief facts of the case of the petitioners as per the pleading made in the writ petition is that a title suit has been filed by the plaintiff being Title Suit No.37 of 2010, in which, the father of the petitioners have been summoned but the father of the petitioners, defendant No.3 chosen not to appear, therefore, the proceeding against the said defendant has been set ex-parte and the trial has proceeded. In course of the pendency of the suit the defendant no.23 has died on 27.11.2014. The plaintiff has filed a petition under Order XXII Rule 4 (4) read with Section 151 of the C.P.C. for exemption from substitution of the defendant no.23 on account of the death of the said defendant, the trial Court has allowed the aforesaid petition and exempted from substitution of the defendant no.23 vide order dated 21.07.2015. The petitioners who claim to be legal representatives of the defendant no.23 field a petition under Order I Rule 10(2) of the C.P.C. for their impleadment as party to the proceeding but the same has been rejected, vide order dated 02.02.2017. The petitioners have assailed both the orders i.e., order dated 21.07.2015 which has been passed dealing with the petition filed under Order XXII Rule 4(4) of the C.P.C. as also the order dated 02.02.2017 which has been passed in dealing with the petition filed under Order I Rule 10(2) of the C.P.C. 4. Mr. Sanjay Kr. The petitioners have assailed both the orders i.e., order dated 21.07.2015 which has been passed dealing with the petition filed under Order XXII Rule 4(4) of the C.P.C. as also the order dated 02.02.2017 which has been passed in dealing with the petition filed under Order I Rule 10(2) of the C.P.C. 4. Mr. Sanjay Kr. Tiwary, learned counsel appearing for the petitioner, has submitted that the order of exemption passed while dealing with the petition filed under Order XXII Rule 4 (4) of the C.P.C. is not proper, it is for the reason that the petitioners are the legal representatives and therefore, they have got to be substituted since they have right to proceed with the proceeding and when the said order has been passed, the petitioners have filed a petition under Order I Rule 10(2) of the C.P.C., inter-alia on the ground that being the legal representatives of the defendant no.23, they are having right over the property and therefore, they are the necessary party and in absence thereof, there is no proper adjudication and further while rejecting the said application the trial Court has not appreciated that it will lead to the multiplicity of proceeding, therefore, both the orders need interference by this Court sitting under Article 227 of the Constitution of India under its revisional jurisdiction. 5. Mr. Prashant Pallav, learned G.A.-IV appearing for the respondent nos.3 to 8 as also Mr. 5. Mr. Prashant Pallav, learned G.A.-IV appearing for the respondent nos.3 to 8 as also Mr. Sheo Kumar Singh, learned counsel appearing for the respondent nos.1 and 2 have jointly submitted that there is no error in the impugned orders as because the trial Court after having issued notice upon the defendant no.23 and after service of notice upon him when he has chosen not to appear, proceeding has been set ex-parte vide order dated 05.04.2011 but the defendant no.23 has died on 27.11.2014 and when it came to the notice of the plaintiff, a petition under Order XXII Rule 4 (4) of the C.P.C. read with Section 151 of the C.P.C. has been filed for seeking prayer for exemption to substitute the defendant no.23 through his legal representatives and trial Court while dealing with the aforesaid petition has rightly passed the order exempting for substitution the defendant no.23 through his legal representatives taking into consideration the fact that the proceeding against the defendant no.23 has been set ex-parte, meaning thereby, when the defendant no.23 has not chosen to contest the suit which resulted into ex-parte proceeding. He since has waived the right to contest, therefore, the legal representatives will have no right to be substituted to proceed with the same. 6. So far as the order passed by the trial Court under Order XXII Rule 4 (4) of the C.P.C. is concerned, it has been submitted by them that it is not the case of the petitioners when the petition filed under Order I Rule 10 (2) of the C.P.C. in defending of the right of his father, defendant no.23 and if the said petition would be allowed the proceeding which has been set ex-parte vide order dated 05.04.2011 will automatically be given goby in view of the fact that when the proceeding has been set ex-parte, so far as it relates to defendant no.23, meaning thereby, he has waived his right to contest the suit keeping that fact into consideration the order has been passed under Order XXII Rule 4 (4) of the C.P.C., therefore, both the orders suffer from no infirmity, hence the same may not be interfered with. 7. 7. Having heard the learned counsel for the parties and on appreciation of their rival submissions, the factual aspect which is not in dispute in this case that a declaratory suit has been filed by the respondent nos.1 and 2, the plaintiff to the suit, in which apart from the other defendants, the father of the petitioners has been arrayed as defendant no.23. The trial Court has issued notice upon the defendants as also upon the defendant no.23 but he has not put his appearance before the trial Court to contest the suit, therefore, the trial Court has set the proceeding ex-parte and proceeded with the suit. 8. The question of substitution has arisen, therefore, the plaintiff has filed a petition before the trial Court under Order XXII Rule 4 (4) of the C.P.C. for seeking an exemption of substituting the defendant no.23 through his legal representatives. The said petition has been filed on the ground that when the proceeding itself has been set ex-parte against the defendant no.23 then there is no question of allowing substitution through his legal heirs since the defendant no.23 has waived his right to contest the suit by making suit as an ex-parte proceeding. 9. It is not in dispute that the provision as contained under Order XXII Rule 4 (4) of the C.P.C. confers power upon the trial Court for passing an order depending upon the facts to exempt by substituting through their legal heirs of the defendant. The question herein is that when the proceeding has been set ex-parte and when the original defendant no.23 has waived his right to contest having not challenged the proceeding as ex-parte. Which was passed way back on 05.04.2011 i.e., 3 1/2 years prior to his death, whether in this fact the plea of the petitioners questioning the order passed by the trial Court under Order XXII Rule 4 (4) of the C.P.C. it can be said to be justified ? The proceeding means the continuation of litigation, although the proceeding has not been defined anywhere in the C.P.C. but the proceeding does reflect that it is the proceeding before the competent court for adjudication of an issue, which means that the proceeding if initiated it will be said to be in continuation till it reaches to its logical end. The proceeding means the continuation of litigation, although the proceeding has not been defined anywhere in the C.P.C. but the proceeding does reflect that it is the proceeding before the competent court for adjudication of an issue, which means that the proceeding if initiated it will be said to be in continuation till it reaches to its logical end. The party is summoned and chosen to appear by filing vakalatnama, it will be said to be the contesting defendant and if in a proceeding of the C.P.C. fails in filing the written statement then there can be an order of debarring from filing the written statement and if such eventualities will arise, the said defendant will have right to cross-examine the witnesses, meaning thereby, in that situation the proceeding will not be said to be set an ex-parte proceeding but when the notice has been issued and the defendant has chosen not to appear in spite of waiting for several dates the court will not wait for said defendant to appear rather the court will proceed for conclusion of the proceeding by setting the proceeding ex-parte against the said defendant, which means that the said party has waived his right to contest the suit so long as the said order is not reversed, and if the party has chosen not to contest and suppose, in the meanwhile, he has died the legal representatives cannot come and enter into the suit by seeking a leave of the Court to allow him to contest the suit in the capacity of legal representative in continuation to the interest of the defendant who has died but once he has chosen not to appear, the legal representatives will seize from contesting the suit unless the order for setting the proceeding ex-parte would be reversed, if questioned by the legal representatives. Further there can be an instance supposed that the proceeding has been set ex-parte and immediately after few days the said defendant against whom proceeding has been set ex-parte, has died in that situation the trial court is supposed to consider the petition filed for substitution by the legal representatives but that is not the fact in the instant case since the proceeding has been set ex-parte way back on 05.04.2011 while the defendant No.23, the father of the petitioners, has died on 27.11.2014 which is after more than 3 1/2 years and as such a substantial period the defendant No.23 has accepted the order by which the proceeding has been set ex-parte against him. The plaintiff in that situation has filed a petition under Order XXII Rule 4 (4) read with Section 151 of the C.P.C. seeking exemption from substituting the defendant No.23 through his legal representatives the petitioners herein, the same has been allowed keeping the fact into consideration that the proceeding itself has been set ex-parte way back on 05.04.2011 as would appear from the impugned order dated 21.07.2015 and therefore, as has been reflected hereinabove and for the aforesaid reason, this Court is of the view that the trial court while passing the order dealing with the petition filed under Order XXII Rule 4 (4) of the C.P.C. by rejecting it, has committed no illegality. So far as the order dated 02.02.2017, passed while dealing with the petition under Order I Rule 10(2) of the C.P.C. is concerned, it is evident from the petition filed under Order I Rule 10(2) of the C.P.C. that the petitioners are claiming their right in the capacity of the legal representatives of the defendant no.23 by making the ground that in their absence there would no proper adjudication of the lis. 10. It is not in dispute that the provision of Order I Rule 10(2) of the C.P.C. contains provision to implead the necessary party in absence of which there is no possibility of proper adjudication. 10. It is not in dispute that the provision of Order I Rule 10(2) of the C.P.C. contains provision to implead the necessary party in absence of which there is no possibility of proper adjudication. The question of necessary party is not to be considered herein in the facts of the case as because the petitioners are claiming to be necessary party by virtue of being the sons of defendant no.23 in the capacity of legal representatives but once the original defendant no.23 has waived his right and if the legal representatives will be impleaded as party by allowing the petition filed under Order I Rule 10(2) of the C.P.C. which means that his capacity will be of an independent party and that will be nothing but to override the judicial orders passed by the trial court i.e. order dated 05.04.2011 by which the proceeding has been set ex-parte against the defendant No.23 and order dated 21.07.2015 by which the petition filed under Order XXII Rule 4(4) of the C.P.C. has been allowed, therefore, in the considered view of this Court since the defendant no.23 has already waived his right way back and the plaintiff has been exempted from substituting defendant No.23 through his legal representatives and in the backdrop of this aspect if the petitioners would be allowed to be impleaded as party as required under Order I Rule 10(2) of the C.P.C., the same will amount to setting the ex-parte proceeding as being superseded without being questioned. 11. In view of the aforesaid facts as narrated hereinabove and for the reasons recorded, this Court is of the view that the orders impugned are not in such a nature warranting any interference under Article 227 of the Constitution of India. 12. In view thereof, this writ petition fails and is dismissed.