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2019 DIGILAW 1751 (HP)

Rama Devi v. Dhruv Singh

2019-11-20

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Having regard to the nature of order this Court proposes to pass in the instant petition, there is no need to issue notice to the respondents, as it would unnecessarily burden them with the expenses of engaging services of a counsel to represent them in the instant proceedings. 2. Precisely the facts, as emerge from the record, are that the petitioner-plaintiff and respondents No.11 to 13 (hereinafter, 'plaintiffs') filed a suit for declaration and injunction against the respondents-defendants (hereinafter, 'defendants') under S.26 CPC read with Ss. 34 and 38 of Specific Reliefs Act, praying therein for declaration that the plaintiffs are owner-in-possession of land denoted by Khata No. 69, Khatauni No. 116, Khasra Nos. 941, 942 and 943 Kita 3 area measuring 611-71 square metre situate at Chilgari, Tehsil Dharamshala, District Kangra, Himachal Pradesh as per Jamabandi for the years 1999-2000 (hereinafter, 'suit land'). 3. Vide judgment and decree dated 19.12.2011, passed by learned Civil Judge (Senior Division), Kangra at Dharamshala, in Civil Suit No.90/2004, suit having been filed by the plaintiffs came to be decreed. Being aggrieved and dissatisfied with aforesaid judgment and decree passed by learned trial Court, defendants filed an appeal in the court of learned Additional District Judge-II, Kangra at Dharamshala i.e. Civil Appeal No. 10-D/2012. Learned first appellate Court, having taken note of the fact that defendant No.5 Asha Kumar had expired on 16.12.2011 i.e. during the pendency of trial, proceeded to remand the case back to learned trial Court, vide judgment dated 15.5.2019, with the direction to decide the issue of abatement and impleadment, if any, of legal representative of defendant No.5. 4. In nutshell, grouse of the plaintiff No.1 is that learned first appellate Court, while remanding case back has failed to take note of the provisions contained under Order XXII, rule 6 CPC, which provide as under: "ORDER XXII-DEATH, MARRIAGE AND INSOLVENCY OF PARTIES 6. No abatement by reason of death after hearing- Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place." 5. Having carefully perused the aforesaid provisions of law, this Court finds force in the argument of learned counsel for the plaintiff that the appeal cannot be said to have abated on account of death of a party, after conclusion of hearing but before pronouncement of decision and, in such case, court can proceed to pronounce the judgment, which shall have the same force as if same had been passed before death of the party concerned. In the case at hand, careful perusal of para-14 of judgment passed by learned first appellate Court, itself reveals that factum with regard to death of defendant No.5, Asha Kumari, who expired on 16.12.2011, was brought to the notice of court by learned counsel for the defendants. It is also not in dispute that suit having been filed by plaintiffs came to be decreed on 19.12.2011. 6. Careful perusal of Zimni orders placed on record clearly reveals that learned trial Court heard final arguments on 21.11.2011 and posted the matter for orders on 28.11.2011, meaning thereby defendant No.5 was alive at the time of final arguments and she died before pronouncement of judgment by learned trial Court i.e. 19.12.2011. Since defendant No.5 had died on 16.12.2011, definitely after the final haring of the matter, learned first appellate Court ought not have remanded the matter back to learned trial Court with the direction to decide the issue of abatement, especially in view of provisions contained under Order XXII, rule 6 CPC. It appears that the aforesaid plea was raised by learned counsel for the plaintiffs at the time of passing of impugned judgment by learned first appellate Court but said court, without taking note of aforesaid provisions, proceeded to remand the case to learned trial Court with the direction to decide issue of abatement and impleadment, if any, of legal representatives of defendant No.5. 7. Consequently, in view of above, present petition is allowed. Judgment dated 15.5.2019 passed by learned Additional District Judge(II), Kangra at Dharamshala, HP in Civil Appeal No. 10-D/2012 is set aside. Additional District Judge(II) Kangra at Dharamshala is directed to decide the matter afresh in terms of provisions contained under Order XXII, rule 6 CPC. 7. Consequently, in view of above, present petition is allowed. Judgment dated 15.5.2019 passed by learned Additional District Judge(II), Kangra at Dharamshala, HP in Civil Appeal No. 10-D/2012 is set aside. Additional District Judge(II) Kangra at Dharamshala is directed to decide the matter afresh in terms of provisions contained under Order XXII, rule 6 CPC. Learned counsel representing plaintiffs undertakes to cause presence of his clients before learned first appellate Court on 2.12.2019, enabling it to proceed further with the matter in accordance with this judgment and conclude the proceedings expeditiously, preferably within two months. Needless to say, learned Court below before deciding the case afresh in terms of this judgment shall afford reasonable opportunity of hearing to the parties. Since appeal having been filed by defendants has not been decided on merit by learned first appellate Court, it shall not be precluded from deciding the same on merit, if ultimately it comes to the conclusion that matter is not required to be remanded back for deciding the issue of abatement and impleadment. 8. Petition stands disposed of in aforesaid terms. Pending applications, if any, also stand disposed of.