Baldev Singh vs Jagdish Kumar and Others

Rajiv Narain Raina, J.—Having read the elaborate and well reasoned order passed by the learned District Judge, Sangrur of April 18, 2014 affirming the order of the learned trial Court dated March 20, 2014 I am not inclined to interfere with the original order declining the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short "CPC").

The present revision arises out of a Civil Suit instituted by Devki Devi widow of Gian Chand on February 23, 1988. The suit was for possession and mesne profits filed against five defendants with respect to the disputed property.

The brief facts are that the disputed property is part of Khasra Nos. 907//1/2 and 888. The plaintiff owned land adjacent to the eastern side of the disputed site which was sold by Devki Devi to Balbir Kishan vide sale deed dated August 24, 1976. This land was further sold by Balbir Kishan to defendant Nos. 1 to 4 by sale deed dated August 20, 1995. On the northern side of the disputed site, there is land measuring 405 square yard with a constructed house thereon, situated in Khasra No. 907//1/3 owned by Jaggar Singh son of Sajjan Singh, defendant No. 5 and Kaur Singh etc. They sold the same to one Kuldeep Singh and Kaur Singh etc. who had purchased the land including some other land comprised in Khasra Nos. 807/1/3 and 907//1/3/1 from the husband of Devki Devi on October 6, 1970. There is further history of sale and purchase which should not detain us. In the end, the plaintiff had requested defendants to hand over possession of the disputed property which met with refusal. Therefore, the suit was filed.

Devki Devi died and her son Jagdish Kumar was impleaded as plaintiffs Legal Representative. The petitioner is the son of Jaggar Singh-defendant No. 5. Jaggar Singh died on September 20, 1996 during the pendency of the case. The plaintiff did not inform the Court of the death of Jaggar Singh and ultimately the suit was decreed on January 17, 2000. Jaggar Singh had remained ex parte in the case. The decree was passed as against Jaggar Singh, a dead person.

The plaintiffs suit for possession was decreed as prayed for together with mesne profits @ Rs. 300/- per month from February 17, 1988 till realisation. It is the case of the petitioner that on October 25, 2012 he met Jasbir Singh resident of Sangrur from whom he enquired about the fate of the case. Though Jasbir Singh did not know of the fate of the case but he informed him that sometime back an employee of the Court at Sangrur met with him to enquire about the whereabouts of Jaggar Singh and was told that he died many years ago. This led him to approach Sinder Pal Singh, defendant No. 1 from whom he came to know about the litigation and on further enquiries came to know of its fate. He then filed an application under Order 9 Rule 13 CPC to set aside the ex parte judgment and decree dated January 17, 2000. This application has been dismissed on March 20, 2014. The learned trial Court has reasoned that Jaggar Singh had filed a joint written statement with defendant Nos. 1 to 4.

The appeal against the decree stood rejected on October 3, 2007. Defendant Nos. 1 to 4 filed Regular Second Appeal before this Court which also stands dismissed on October 8, 2009. Therefore, the non-presence of Jaggar Singh will not make any material difference on the result of the suit. This order has been maintained by the learned District Judge, Sangrur as not maintainable. The main reason for dismissal is that duty was cast on the legal representatives of the deceased to come forward for impleading themselves in the suit. They could not take advantage of plaintiffs failure to bring on record the LRs of the deceased. In any case, the defendants had a common cause and had jointly contested the suit and can be assumed to have watched the interest of each other as against the plaintiff by agitating the matter upto this Court in appeal.

This revision came up for the first time on May 1, 2014 and after hearing the learned counsel at substantial length and not feeling persuaded to interfere in the matter had granted time to the counsel to thoroughly examine the matter from all angles to see if this Court could be of any help to the petitioner especially regarding the provisions of Order 22 Rule 4(3) substituted by the Punjab and Haryana High Court in 1975 read with Section 97 of the Code of Civil Procedure, 1908. This High Court amendment places burden on the legal heirs and representatives of deceased defendant dying pending proceedings to approach the Court in the pending action for substituting their name/s in place of the deceased-defendant. Conversely, the amendment exempts the plaintiff from the necessity of substituting the legal representatives of any such defendant who failed to file written statement or who, having filed it, has failed to appear and contest the suit at the hearing, and the judgment may, in such case, by pronounced against the said defendant notwithstanding his death and the decree so passed shall have the same force and effect as if it has been pronounced before death took place.

Learned counsel for the petitioner has filed CM No. 10510-CII of 2014 for placing on record a copy of the application under Order 9 Rule 13, the application for stay and the judgment in appeal. The same are taken on record. From the perusal of the application shows that in para. 3 it is pleaded that at the time of filing of the suit, the petitioner and proforma respondent Nos. 6 to 8 were minors. It is averred that the father of the applicant never disclosed factum of suit during his life time. It is said that Jaggar Singh was the head of the family. He dealt with family matters on his own. The applicant/petitioner was not aware of the pendency of the suit and nor was he conveyed by any body that there was a suit pending against his father in which his father was a party defendant. Neither did Jaggar Singh''s counsel ever inform the legal heirs of the fate of the suit for them to have taken steps to safeguard their interest.

Learned counsel has very fairly produced the judgment of the Full Bench of this Court in Chand Kaur Vs. Jang Singh and Others, where the provisions of Order 22 Rule 4 were dealt with and considered. The question that the Full Bench was called upon to determine on a reference made to Division Bench, was whether sub-rule (3) of Rule 4 of Order 22 of the CPC substituted by this Court on March 25, 1975 enforced w.e.f. February 1, 1977 was inconsistent with the provisions of the CPC as amended and consequently stands repealed by the operation of the CPC (Amendment) Act, 1976. The Full Bench answered the question and held that sub-rule (3) to Rule 4 of Order 22 of the CPC is not inconsistent with the provisions of the Code and the High Court Amendment does not stand repealed or abrogated. The Full Bench of this Court held in paras 7 and 8 as follows:-

The main purpose for addition of rules 2-A and 2-B and sub-rules (4), (5) and (6) to rule 4 and substitution of sub-rule (3) to rule 4, was not that the legal representative of the deceased defendant should not be brought on the record. On the other hand, its purpose was that if through over-sight or on account of some other cause, the legal representatives of the deceased defendant could not be brought on record before the decision of the suit, the decision given should remain binding on the parties. In spite of the substituted provisions, the legal representatives of the deceased defendant even after amendment by the High Court were normally impleaded as defendants in the trial as well as appellate Courts. The intention of the High Court in making the provisions was not to penalise the legal representatives of the deceased defendant. It is on account of this reason that they have been given the right to make an application for setting aside the judgment and decree of the Court under sub-rules (4) and (5) of rule 4 and the Court has been empowered to set aside the decree if it was proved that they were not aware of the suit or that they had not intentionally failed to make an application to bring themselves on the record. The Court, however, before setting aside the ex parte decree has to satisfy further that if the legal representatives had been on the record, a different result might have been reached in the suit.

No doubt, Section 97(1) of the Amendment Act provides that any amendment made or any provision inserted in the Code by a High Court before commencement of the Act shall, if it is inconsistent with the amended Code, stands repealed. But if a rule or sub-rule in Schedule 1 of the Code was amended or substituted by a High Court before the Amendment Act, the amended or substituted rule does not stand automatically repealed by virtue of Section 97(1) for the reason that original rule or sub-rule as framed by the Legislature has not been amended by the Amendment Act. If it had been the intention of the Legislature, it would have stated so specifically. I am, therefore, unable to hold that sub rule (3) to rule 4 as framed by this Court stands repealed after the Amendment Act.

In view of this amendment, the main plank of challenge laid by the learned counsel against the decree that the same is unenforceable on the petitioner and his siblings being a decree passed against a dead person is blunted and the argument to the contrary holds no water. The High Court rule transfers the burden from the plaintiff to bring the legal representatives of the deceased-defendant on record on the defendants to have stepped forward to get themselves substituted in place of Jaggar Singh and the suit would not abate against the deceased-defendants in case it was not so done. The decree that followed is final against the petitioner.

For the foregoing reasons, the petition fails and is dismissed.