Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 694 (HP)

Jiwan Alias Sarjivan v. Ram Pal

2019-06-12

AJAY MOHAN GOEL

body2019
JUDGMENT Ajay Mohan Goel, J. (Oral) - By way of this petition, the petitioners have prayed for following reliefs:- "That this petition may kindly be allowed and the impugned order dated 23.2.2015 passed by learned Additional District Judge (1), Una, on C.M.A. No. 60 of 2015 in Civil Appeal No. 60 of 2010 may kindly be quashed and set-aside or the Hon''ble Court may please to pass any such or further order which may be deemed just and proper in the facts and circumstances of the case in the interest of justice and fair play". Whether reporters of the local papers may be allowed to see the judgment? 2. Brief facts necessary for adjudication of the present petition are that a suit for mandatory injunction and in the alternative for specific performance of contract was filed by respondent Ram Pal . against the defendants before the Court of learned Civil Judge (Sr. Division), Una, District Una, H.P. i.e. Civil Suit No. 10 of 1996, which was dismissed by the learned trial Court on 1.9.2007. 3. In appeal, the judgment and decree so passed by the learned trial Court were affirmed by the learned Appellate Court vide judgment and decree dated 21.1.2013. 4. Feeling aggrieved, respondent/plaintiff preferred a Regular Second Appeal. During the pendency of the said appeal before this Court, it transpired that Shri Mukhtiar Singh, one of the defendants, had died during pendency of the appeal before the learned First Appellate Court. On this short ground, the Regular Second Appeal was allowed and judgment dated 9.7.2014, passed by the learned Appellate Court was set aside and the matter was remanded back to the learned Appellate Court. After the said remand, an application was filed by respondent/plaintiff under Order 22, Rules 4, 9 read with Section 151 CPC to bring on record the legal representatives of deceased Mukhtiar Singh. Record demonstrates that this application was filed on 16.1.2015 and the same stood allowed by the learned Appellate Court vide order dated 23.2.2015 without serving to the proposed legal representatives. 5. Learned counsel for the petitioner has vehemently argued that the impugned order is not sustainable in the eyes of law as learned Appellate Court could not have had allowed the application to bring on record the legal representatives of deceased respondent No. 4 without affording an opportunity of being heard to the proposed legal representatives. According to Mr. 5. Learned counsel for the petitioner has vehemently argued that the impugned order is not sustainable in the eyes of law as learned Appellate Court could not have had allowed the application to bring on record the legal representatives of deceased respondent No. 4 without affording an opportunity of being heard to the proposed legal representatives. According to Mr. N.K. Thakur, learned Senior Counsel for the petitioners, the said omission on the part of the learned Appellate Court has caused great prejudice to all the parties, because there was a probability that the proposed legal representatives along with other respondents might have satisfied the learned Appellate Court that the application so filed could not have been allowed. 6. On the other hand, Mr. Ajay Sharma, learned Senior Counsel appearing for respondent No.1 has argued that no perversity is there in the impugned order, because when the matter stood remanded back in Regular Second Appeal by this Court, it was incumbent upon the learned First Appellate court to have had allowed the application to bring on record the legal representatives of deceased respondent No. 4. 7. I have heard learned counsel for the parties and have also gone through the impugned order. 8. In my considered view, there is merit in the submissions of learned senior counsel for the petitioners. Once the application stood filed under Order 22, Rule 4, read with Rule 9 of the CPC to bring on record the legal representatives of deceased Mukhtiar Singh with the prayer of setting aside the abatement as admittedly the application was filed beyond the period of limitation, it was incumbent upon the learned Appellate Court to have had heard the proposed legal representatives before passing any order in the said application. Record demonstrates that on 22.1.2015, notices were issued on the application to the proposed legal representatives. Record further demonstrates that there was a report on the summons issued to the proposed legal representatives that they could not be served for want of correct address. In this factual background, in my considered view, learned Appellate Court erred in allowing the application to bring on record the legal representatives of deceased Mukhtiar Singh without (a) the proposed legal representatives of deceased Mukhtiar Singh being properly served and (b) without affording them an opportunity of being heard, on the application. 9. Accordingly, on this short count, this petition is allowed. 9. Accordingly, on this short count, this petition is allowed. The impugned order is set aside with direction to the learned Appellate Court to revive the application filed under Order 22, Rule 4 read with Rule 9 of the CPC to bring on record the legal representatives of deceased Mukhtiar Singh and adjudicate the same afresh after issuance of notice to the proposed legal representatives and after hearing the all parties. The represented parties through their learned counsel are directed to appear before the learned Court Below on 22.7.2019. Learned Appellate Court shall decide the application filed under Order 22, Rule 4 read with Rule 9 of the CPC as expeditiously as possible, and preferably before 31.10.2019. It is clarified that this Court has not made any observation on the merits of the case and the application shall be decided by the learned Appellate Court upon its own merits and thereafter, the learned Court Below shall proceed with the matter in accordance with law without being influenced of any observation made by this Court in the present order. 10. The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.