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2020 DIGILAW 180 (HP)

High Court Of Himachal Pradesh v. Sheela Devi (deceased)

2020-02-28

DHARAM CHAND CHAUDHARY

body2020
JUDGMENT Dharam Chand Chaudhary, J. - The present petition has been filed for seeking review of order dated 27th April, 2016 in CMPMO No.157 of 2016, titled Smt. Sheela Devi (deceased) wife of late Shri Bahadur Singh through her legal representatives Shri Harbans Lal Parmar versus Usha Devi. 2. In a nutshell, the facts leading to the filing of the present review petition are that one Smt. Sheela Devi wife of late Shri Bahadur Singh Parmar filed Civil Suit under Section 9, 26 and Order 7 Rules 1 & 2 of the Code of Civil Procedure and Sections 38 & 39 of Specific Relief Act, 1963 for permanent prohibitory injunction restraining the defendant, her agents and servants from committing any act or mischief and from carrying out any repairs, additions/alterations or reconstruction or otherwise from modifying the existing house of the plaintiff shown in the site plans as A, B,C, D and from raising further construction thereon or from raising any sort of fresh construction over the adjoining abadi land shown as A-1, B-1, C-1 & D-1 measuring 3 kanals comprised in the abadi tika Khata No. 227 min, khatoni No. 260 min, Kh. No. 746, out of 20 kanal 11 marlas of total area, situate in Tika Mohal Mohin, Mauza Bajuri, Tehsil and District Hamirpur, H.P. as per jamabandi for the year 2000-01 and for possession of the vacant portion of the house allegedly occupied by the defendant illegally and unauthorizedly and also for recovery of the use and occupation charges. In the suit an application under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure for appointment of Local Commissioner was preferred by applicant-plaintiff. The said application was dismissed by the learned trial Court vide order dated 2nd March, 2016. Against the aforesaid order, CMPMO No.157 of 2016 came to be filed by Smt. Sheela Devi (deceased) through her legal representative Shri Harbans Lal Parmar. An objection on account of a deceased person has been shown as party therein was raised by the Registry. Regarding this objection a note that memo of parties in instant petition has been prepared as per the memo of parties in the impugned order was appended by learned Counsel representing the petitioner. Hence, the petition was sought to be listed as it is in the Court. Regarding this objection a note that memo of parties in instant petition has been prepared as per the memo of parties in the impugned order was appended by learned Counsel representing the petitioner. Hence, the petition was sought to be listed as it is in the Court. Consequently, the petition came to be listed before this Court on 27th April, 2016, when following order was passed: "The objection being uncalled for is ordered to be dropped. Learned Registrar (Judicial) to ensure that no such objection is raised in future as this is the only proper way to reflect the name of legal representatives of deceased party in the memo of parties...." 3. This order was placed before Hon'ble the Chief Justice on administrative side seeking suitable amendment in Note-4 appended to Rule 3 of Chapter-II Part-I of "Himachal Pradesh High Court (Scrutiny, Maintenance of Judicial Records, Administrative and Executive Business) Rules, 1997". As per the averments made in the present review petition, Hon'ble the Chief Justice was pleased to observe that either review petition or appeal be filed on the judicial side. Hence, the present petition. 4. I have heard learned Counsel for the petitioner and also gone through the record carefully. 5. At the very outset, it would be apt to quote Rule 3 of Chapter-II Part-I of "Himachal Pradesh High Court (Scrutiny, Maintenance of Judicial Records, Administrative and Executive Business) Rules, 1997" which reads as under: "3.The Scrutiny Assistant shall scrutinize the papers/documents generally to find out whether the papers/documents filed are as per the requirement of the rules and particularly with regard to the following aspects:- (a) Whether the papers/documents are properly indexed, paged and as per the index. (b) Whether proper court fee has been affixed in accordance with the provisions of the Court Fees Act. (c) Whether the affidavits/documents are properly verified, dated and attested, as the case may be. (d) Whether the documents/papers filed are legible. (e) Whether the requisite number of copies have been furnished and are duly certified. (f) Whether memorandum of parties is complete regarding name, parentage and address. (c) Whether the affidavits/documents are properly verified, dated and attested, as the case may be. (d) Whether the documents/papers filed are legible. (e) Whether the requisite number of copies have been furnished and are duly certified. (f) Whether memorandum of parties is complete regarding name, parentage and address. X x x x x x x x x x x X x x x x x x x x x x Note-3:- At the time of scrutinizing the papers/cases, the Registry shall first see the names of the parties and also verify whether they were parties in the proceeding in the Courts below. The dates of impugned judgments/orders shall also be checked carefully. Note-4:- Whenever a party(s) dies during the pendency of proceedings before the lower court(s) or before the cases are instituted in the High Court, the cause title of the case in the High Court shall not show the name of the deceased party(s) but the name(s) of his/her legal representatives. The name of the deceased should not be shown in the Memorandum of Grounds, in all matters." 6. It is relevant to point out here that Chapter-III of Delhi High Court Original Side Rules, 1967 provides for the form of pleadings. Rule 1 of the said Rules provides as under: "1. Proceedings how written- (a) Every plaint, written statement, application petition and like presented to the Court:- (i) shall be in English; (ii) shall be fairly and legibly written, type written, lithographed or printed in double spacing on one side of standard petition paper with an Inner margin of about four centimeters width on top and on the left side; (iii) cause title shall be instituted "in the High Court of Delhi" and shall state the jurisdiction (whether Original, Civil. Testamentary or intestate or Matrimonial etc.) in which it is presented; (iv) paragraphs shall be divided into paragraphs numbered consecutively, each paragraph containing as nearly as may be, a separate allegation. (b) Dates-Where Saka or other dates are used, corresponding dates of Gregorian Calendar shall also be given. (c) Names etc. Testamentary or intestate or Matrimonial etc.) in which it is presented; (iv) paragraphs shall be divided into paragraphs numbered consecutively, each paragraph containing as nearly as may be, a separate allegation. (b) Dates-Where Saka or other dates are used, corresponding dates of Gregorian Calendar shall also be given. (c) Names etc. of parties-Full name and parentage, description of each party and address and if such is the case the fact that a party sues or is sued in a representative character, shall also be set out at the beginning of the plaint, petition or application and need not be repeated in the subsequent proceedings in the same suit or matter. (d) The names of parties shall bear consecutive numbers and a separate line should be allotted to the name and description of each party. These numbers shall not be changed and in the event of the death of a party during the pendency of the suit or matter, his heirs or representative, if more than one shall be shown by sub-numbers. Where fresh parties are brought in, they may be numbered consecutively in the particular category, in which they are brought in. (e) Every proceeding shall state immediately after the cause title the provision of law under which it purports to be made." 7. Further, Rule 29 of Chapter-II of the Andhra Pradesh Civil Rules of Practice and Circular Orders, 1990 provides as under: "29 (New) Legal Representatives on record: a. When a party dies 'pendente lite' a note to that effect shall be added against the name of the party and necessary consequential amendment in the body of the pleading shall also be made as prayed for. b. When the heirs of a deceased party are substituted for him they shall be entered and number consecutively and described as the legal representatives of the deceased party." 8. It is also worthwhile to quote Rule 151 of Chapter-XIV of Jammu and Kashmir High Court Rules, 1999, as under: "151. Every person admitted on the record as the legal representative of a deceased party shall be described as "legal representative of AB deceased plaintiff or defendant or appellant or respondent (as the case may be)" and the record of the proceedings shall be amended accordingly in red ink". 9. Every person admitted on the record as the legal representative of a deceased party shall be described as "legal representative of AB deceased plaintiff or defendant or appellant or respondent (as the case may be)" and the record of the proceedings shall be amended accordingly in red ink". 9. The information as furnished by the High Court of Judicature at Allahabad, there is no specific provision for excluding or deleting absolutely the name of a deceased party as per Chapter IX & X providing for bringing on record legal representatives of deceased party. 10. A bare perusal of Note-3 and Note-4 appended to Rule-3 Chapter-II Part-I of "Himachal Pradesh High Court (Scrutiny, Maintenance of Judicial Records, Administrative and Executive Business) Rules, 1997" reveal that both these Notes are self contradictory with each other. Note-3 of the Rules ibid provides that the Registry shall first see the names of the parties and also verify whether they were parties in the proceedings in the courts below, whereas, Note-4 says that the name of the deceased should not be shown in the memorandum of grounds. In the present case the memorandum of parties in CMPMO No.157 of 2016 was the same and similar in verbatim as was mentioned in the impugned order dated 2nd March, 2016. Assuming for the sake of arguments that the memo of parties in the CMPMO is changed as per Note-4 of the Rules ibid, then Note-3 ibid would have been violated and bye-passed and similarly if Note-3 is followed in its stricto-sensu, then Note-4 would automatically render superfluous. Moreover, if Note-4 of the Rules ibid is allowed to remain as it is and is not amended appropriately, it will be very very difficult to trace the hierarchy/ pedigree of a particular party connected originally with the lis. 11. Further, the view expressed by this Court in its order dated 27th April, 2016 passed in CMPMO No.157 of 2016 quoted hereinabove finds support from the Rules framed by the Delhi High Court as well as Andhra Pradesh High Court. 12. Learned Counsel for the petitioner has heavily placed reliance upon Rules regarding bringing the legal representatives on record framed by Delhi High Court, Allahabad High Court, but the same are not applicable to the point in issue. The Rules framed by this High Court for bringing on record the legal representatives are also same. 12. Learned Counsel for the petitioner has heavily placed reliance upon Rules regarding bringing the legal representatives on record framed by Delhi High Court, Allahabad High Court, but the same are not applicable to the point in issue. The Rules framed by this High Court for bringing on record the legal representatives are also same. However, these are not concerning or relating to the point in issue with regard to the memorandum of parties in the lis. Therefore, the present petition being devoid of any merit is dismissed and the Registrar General of this Court is directed to get Note-4 appended to Rule 3 of Chapter-II Part-I of "Himachal Pradesh High Court (Scrutiny, Maintenance of Judicial Records, Administrative and Executive Business) Rules, 1997" amended accordingly.