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2025 DIGILAW 703 (HP)

Sanjay Sood v. Iqbal Sandhu

2025-04-09

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. The present petition has been filed, seeking quashing of order dated 05.03.2022 passed by the Court of Civil Judge (Sr. Division), Solan in CMA No.1878 of 2021, whereby an application filed under Order 22 Rule 4 CPC by the present petitioner (defendant No.1) for dismissing the suit on account of abatement after the death of proforma defendant No.3 (Gurbax Singh) before the trial Court, has been dismissed and an application filed under Order 22 Rule 4 CPC for exempting respondents No.1 and 2 (plaintiffs) from bringing on record the LRs of deceased proforma defendant No.3(Gurbax Singh), has been allowed. 2. Heard counsel for the parties and perused the pleadings. 3. That respondents No.1 and 2 are the plaintiffs before the trial Court. They had filed a suit for permanent prohibitory and mandatory injunction. The relief therein was only claimed against the present petitioner i.e. defendant No.1. No relief was claimed against proforma defendants No.2 and 3 before the trial Court. 4. The suit, in the case at hand, was filed on 06.04.2009. Notice in the suit was served on the present petitioner (defendant No.1) and proforma defendants No.2 and 3 before the trial Court for 20.08.2009. No written statement was filed on behalf of proforma defendants No.2 and 3. They had not contested the present suit, as no relief was claimed against them. 5. Proforma defendant No.3 had died on 29.04.2010. An application for exemption from substituting the legal heirs of deceased proforma defendant No.3 (Gurbax Singh) was filed in March 2021. Per contra, an application for dismissing the suit on account of abatement having taken place as a result of death of proforma defendant No.3 (Gurbax Singh) was filed under Order 22 Rule 4 of the Civil Procedure Code by the present petitioner (Defendant No.1). 6. In the aforesaid facts and attending circumstances, the trial Court had allowed the application under Order 22 Rule 4(4) CPC for exempting the present respondents No.1 and 2 (plaintiffs) from bringing on record the LRs of deceased proforma defendant No.3 (Gurbax Singh). As according to the trial Court, the said proforma defendant was a proper party, no specific relief was being claimed against the said proforma defendant. 7. Exemption being granted by the Court in terms of Order 22 Rule 4(4) CPC is to be obtained before judgment is delivered and not after it. As according to the trial Court, the said proforma defendant was a proper party, no specific relief was being claimed against the said proforma defendant. 7. Exemption being granted by the Court in terms of Order 22 Rule 4(4) CPC is to be obtained before judgment is delivered and not after it. In this regard, reference can be made to Civil Appeal No.1259 of 2009, titled T. Ganavel Vs. T.S. Kanagaraj & Ors. 8. Other than the aforesaid, no fault can be found with the reasoning given by the trial Court insofar as it holds that the death of a proforma party against whom no relief was being claimed would not result in any abatement. In this respect, reference can be made to case reported as Mangal Singh v. Rattno, (1967) 3 SCR 454 : AIR 1967 SC 1786 , wherein the plaintiff, Smt. Harnam Kaur, had come forward with the allegation that she had been dispossessed by all the four Defendants 1 to 4, Ishar Singh, Defendant 4, in his written statement, repudiated this claim. He put forward the plea that he had not dispossessed the plaintiff and, further, supported the claim of the plaintiff by pleading that there had been no karewa marriage between them. The suit was dismissed by the trial court. It was decreed by the first appellate Court only against Defendants 1 to 3, treating Ishar Singh as a proforma defendant. 9. An application to bring on record legal representatives of Ishar Singh, Defendant 4 was dismissed by the order of the Apex Court dated 14th September, 1965 in Civil Miscellaneous Petition No. 1589 of 1965. In view of this order, a preliminary objection was raised at the time of hearing of the appeal by learned counsel for the respondents, who had been impleaded as legal representatives of Smt. Rattno, that the appeal had abated on account of the failure of the appellants to implead the legal representatives of Ishar Singh respondent. The question raised was negatived as lshar Singh, against whom the suit had not been decreed at all, was held to be an unnecessary party. Besides the aforesaid it was held that even if the relief claimed by Defendants 1 to 3 was granted against Smt. Rattno the same, would not bring into effect any contradictory decrees. The question raised was negatived as lshar Singh, against whom the suit had not been decreed at all, was held to be an unnecessary party. Besides the aforesaid it was held that even if the relief claimed by Defendants 1 to 3 was granted against Smt. Rattno the same, would not bring into effect any contradictory decrees. The relevant extract of the judgement is being reproduced herein-below:- In these circumstances, it is obvious that, when the case came up before the High Court, the dispute was confined between Smt Rattno, legal representative of the original plaintiff on the one side, and Defendants 1 to 3 on the other. Defendants 1 to 3 sought vacation of the decree for possession which had been granted against them in favour of Smt Rattno lshar Singh, against whom the suit had not been decreed at all, thus became an unnecessary party. In these circumstances, even if Ishar Singh had not been impleaded as respondent in the High Court, the relief claimed by Defendants 1 to 3 in that Court against Smt Rattno could have been granted, without bringing into effect any contradictory decrees. In the appeal in this Court also, in these circumstances, Ishar Singh was an unnecessary party and, consequently, the failure to implead his legal representatives as respondents in the appeal after his death does not affect the right of Defendants 1 to 3 to claim the relief for which they have come up to this Court in appeal. The preliminary objection, therefore, fails and is rejected. 10. In this respect reference can be made to 1984 (3) SCC 462 , titled Upper India Cable Co. & Ors. Vs. Bal Kishan and 1990 (3) SCC 285 , titled Hira Lal & Anr. Vs. Gajjan & Ors. 11. Reliance placed upon 2021 (2) HLJ (HP) 1184, titled Gurmeeto & Ors. Vs. Pritam Chand & Ors., by the learned counsel for the petitioner is of no use, as the same is clearly distinguishable on facts. In the same, one of the contesting defendants, who had filed written statement had died. Relief prayed therein against all the defendants was joint, hence on account of abatement qua the contesting defendant therein it was held that continuation of the trial could result in the passing of contradictory/inconsistent decrees. 12. In the case at hand no relief is being claimed against proforma defendant No.3. Relief prayed therein against all the defendants was joint, hence on account of abatement qua the contesting defendant therein it was held that continuation of the trial could result in the passing of contradictory/inconsistent decrees. 12. In the case at hand no relief is being claimed against proforma defendant No.3. The dispute is confined to the plaintiff and the contesting defendants. Proforma defendant no.3 is therefore an un-necessary party. Relief inter-se the parties can be granted without bringing into effect any contradictory decrees. Non-impleadment of the legal representatives of the proforma defendant no.3 does not result in abatement of the entire suit. 13. In view of the aforesaid, present petition is dismissed being devoid of merits, so also the pending application(s), if any. Parties are directed to appear before the learned trial Court on 21 st April, 2025.