Joginder And Others vs Lohari Devi And Others

Virender Singh, J

CMP No. 7049 of 2023

The order of mine shall dispose of the application, filed by the appellants, under Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’), wherein, a prayer has been made to take the factum of death of respondent No. 38-Jarbu, on record and to set aside the judgment and decree, passed by the learned Court below, being passed against a dead person.

The brief facts, leading to the filing of the present application, before this Court, may be summed up, as under:

2.1. The appellants have preferred the Regular Second Appeal, before this Court, against the judgment and decree, dated 29th June, 2019, passed by the Court of learned Additional District Judge-1, Mandi, District Mandi, H.P. (hereinafter referred to as ‘the First Appellate Court’), in Civil Appeal No. 42/2013, titled as Joginder and others versus Lohari Devi and others, whereby the appeal preferred by the appellants has been dismissed.

2.2. The said appeal had been filed against the judgment and decree, dated 19th June, 2013, passed by the Court of learned Civil Judge (Junior Division), Karsog, District Mandi, Himachal Pradesh (hereinafter referred to as ‘the trial Court’), in Civil Suit No. 31 of 2010, titled as Lohari Devi and others versus Joginder and others, whereby the suit filed by the plaintiffs has been decreed and the defendants have been restrained from interfering with the suit land comprised in Khasra No. 272, in any manner, whatsoever, whereas, counter claim of the defendants has been dismissed.

2.3. According to the stand taken by the appellants/ applicants, when notices of the instant appeal were issued to the respondents, the report was made on the summons issued against respondent No. 38-Jarbu, that the said respondent has expired. Thereafter, the appellants-applicants have obtained the death certificate of respondent No. 38-Jarbu, according to which, said respondent No. 38-Jarbu has expired on 1st October, 2014, when, the matter was pending before the learned First Appellate Court.

On the basis of the above facts, a prayer has been made that the question of abatement, on account of death of respondent No. 38-Jarbu, is required to be determined by the learned First Appellate Court, as, at the time of death of respondent No. 38-Jarbu, the matter was pending before the learned First Appellate Court. Hence, the appellants/ applicants have prayed that the matter be remitted back to the learned First Appellate Court, with a direction to decide the question of abatement, on account of death of respondent No. 38-Jarbu.

When put to notice, this application has been contested, on the ground that despite death of respondent No. 38- Jarbu, no application for substitution of his legal representatives has been filed, although this fact came to the notice of the appellants/applicants on 23rd December, 2019. However, a composite application, being CMP No. 323 of 2022, was filed, which was dismissed as withdrawn.

4.1. According to the respondents/non-applicants, although, the appellants/applicants have obtained the death certificate of respondent No. 38-Jarbu on 3rd December, 2021, however, despite this fact, they have not moved any application, for bringing on record his legal representatives.

4.2. Opposing the prayer of the appellants/applicants, to remit the matter back to the learned First Appellate Court, it is the stand of the respondents/non-applicants that respondent No. 38-Jarbu was impleaded as defendant No. 22, in the suit and he remained ex parte, as, he has not chosen to contest the suit before the learned trial Court. No relief, whatsoever, is stated to have been claimed against him. According to the respondents/non -applicants, in the first appeal, said Jarbu was impleaded as proforma respondent No. 38, and in the said proceedings also, he remained ex parte. The appellants/applicants are also stated to be negligent in not making an appropriate application on the death of respondent No. 38-Jarbu. Hence, a prayer has been made to dismiss the application.

The plaintiffs, before the learned trial Court, have been impleaded as respondents No. 1 to 22 in the present case. By filing the Civil Suit, the plaintiffs, before the learned trial Court, have sought the following relief:

“It is, therefore, respectfully prayed that in view of the submissions made herein above, after trial of the suit a decree for declaration with a consequential relief of injunction may kindly be passed in favour of the plaintiffs and against the defendants to the following effects:

i) That the revenue entries showing the defendants as owners of the land mentioned in Para No. 1 of the plaint right from 31.08.76 till date be declared null and void and the plaintiffs be ordered to be recorded as exclusive owner in possession of the Para No. 1 of the suit land.

ii) That the sale deed No. 64 dated 25.02.1991 and Mutation No. 91, dated 06.02.1992 and the partition order dated 22.07.06 passed in Missle No. 20/2000 and Mutation attested therein be also declared null and void/set-aside.

iia) That a decree for injunction be also passed in favour of the plaintiffs and against the defendants.

iii) And or any other relief be found entitle under the facts and circumstances of the case be also granted in favour of the plaintiffs and against the defendants in the interest of justice and justice be done.”

(self emphasis supplied)

Perusal of the record shows that respondent No. 38-Jarbu was impleaded as defendant No. 22, before the learned trial Court. Said Jarbu has opted not to contest the suit and was proceeded against ex parte.

The learned trial Court, vide judgment and decree, dated 19th June, 2013, has decreed the suit of the plaintiffs, by awarding the following relief:

“Since issues No. 1 to 3 have been answered in favour of the plaintiffs, suit of the plaintiffs is decreed and defendants are hereby restrained from interfering with the suit land comprised in Khasra No. 272 in any manner whatsoever whereas counter claim of the counter-plaintiff/ defendants is hereby dismissed. Parties are left to bear their own costs. Let decree be prepared accordingly. File after due completion be consigned to record room.”

(self emphasis supplied)

Against the said judgment and decree, defendants No. 1 to 4 have filed the appeal, before the learned First Appellate Court, by impleading other defendants, as proforma respondents. The said appeal has been dismissed by the learned First Appellate Court, vide judgment and decree, dated 29th June, 2019.

As per the death certificate, annexed with the application, respondent-Jarbu has expired on 1st October, 2014. Admittedly, the lis, at that time, was pending before the learned First Appellate Court.

Before the learned trial Court, the relief of declaration and permanent injunction has been sought against the defendants, including Jarbu, who has been impleaded as defendant No. 22, in the said proceedings.

The learned senior counsel appearing for the appellants/applicants has vehemently argued that the judgment and decree, in favour and against a dead person, is nullity and the question of effect of death is to be decided by the Court, where the lis was pending, at the time of death of the party (defendant No. 22, in this case).

The learned senior counsel appearing for the respondents/non-applicants has relied upon the decision of the Hon’ble Supreme Court, in a case, titled as T. Gnanavel versus T.S. Kanagaraj and another, reported in (2009) 14 Supreme Court Cases 294.

The learned senior counsel appearing for the respondents/non-applicants could not satisfy the judicial conscience of this Court as to what help the respondents/ non-applicants are going to derive from the said decision of the Hon’ble Supreme Court. Rather, the same helps the case of the appellants/applicants. The relevant paras-17 to 29, of the said judgment, are reproduced, as under:

“17. The issue, which is to be decided in this appeal, whether the decree passed by the civil court in ignorance of the death of the defendant, without granting any exemption to the appellant before the judgment was pronounced, as required under Order 22 Rule 4(4) CPC, is sustainable in law.

Order 22 Rule 1 CPC deals with the question of abatement on the death of the plaintiff or of the defendant in a civil suit. Order 22 Rule 2 relates to procedure where one of the several plaintiffs or the defendants dies and right to sue survives. Order 22 Rule 3 CPC deals with procedure in case of death of one of the several plaintiffs or of the sole plaintiff. Order 22 Rule 4 CPC, however, deals with procedure in case of death of one of the several defendants or of the sole defendant.

For understanding the issue raised before us in this appeal, it would be convenient at this stage to reproduce Order 22 Rule 4 CPC, which runs as under:

“4. Procedure in case of death of one of several defendants or of sole defendant.

— (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

(4) The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.”

A bare perusal of the provisions under Order 22 Rule 4(3) CPC would clearly show that where within the time limited by law, no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

It is not in dispute in the present case that the appellant-plaintiff admittedly did not file any application for substitution on the death of the defendant. Therefore, on the death of the defendant, the suit automatically abates after the time prescribed to bring on record the heirs and legal representatives of the defendant expires.

However, this is subject to Order 22 Rule 4(4) CPC which runs as under:

“4. (4) The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.”

It was argued by Mr Ranjit Kumar, learned Senior Counsel appearing on behalf of the appellant, that in view of Order 22 Rule 4(4) CPC and in view of the admitted fact that exemption was obtained by the appellant from bringing on record the heirs and legal representatives of the defendant in the trial court and, therefore, question of bringing on record the heirs and legal representatives of the defendant would not arise as Order 22 Rule 4(4) CPC clearly says that if such exemption is granted by the court, the effect of such death would be taken as if the decree was pronounced before the said death had taken place.

As noted hereinearlier, a plain reading of Order 22 Rule 4(4) CPC would clearly show that the court is empowered to exempt a plaintiff from the necessity of substituting the heirs and legal representatives of any such defendant who has failed to file a written statement or who, having filed it, had failed to appear and contest the suit at the time of hearing of the same, but such an exemption can only be granted before the judgment is pronounced and in that case only, it can be taken against the said defendant notwithstanding the death of such defendant and such a decree shall have the same force and effect as if it was pronounced before the death had taken place.

Mr Ranjit Kumar, learned Senior Counsel appearing on behalf of the appellant relying on a decision of this Court in Zahirul Islam v. Mohd. Usman [(2003) 1 SCC 476] , argued that since an application for exempting the appellant-plaintiff from bringing on record the heirs and legal representatives of the defendant was filed in the present case but in view of the fact that exemption under Order 22 Rule 4(4) was not allowed in the abovementioned decision and in the aforesaid decision, no such permission was sought or granted by the Court, the High Court was in error in holding that the decree passed in the suit for specific performance of the contract by the trial court was a nullity.

We are unable to accede to this submission of Mr Ranjit Kumar, the learned Senior Counsel appearing on behalf of the appellant for the simple reasons viz. (1) on the abatement caused on the death of the defendant, the suit automatically abated in view of the provisions under Order 22 Rule 4(3) CPC, and (2) from the decision in Zahirul Islam v. Mohd. Usman [(2003) 1 SCC 476] , it would be evident that no exemption was sought or granted under Order 22 Rule 4(4) CPC in the aforesaid decision. In any view of the matter, Order 22 Rule 4(4) CPC clearly says that such exemption to bring on record the heirs and legal representatives of the deceased could be taken or granted by the court only before the judgment is pronounced and not after it.

In view of our discussions made hereinabove and after going through the provisions under Order 22 Rule 4(4) CPC, as discussed hereinearlier, and in view of the principles laid down by the aforesaid decision, it is, therefore, clear that if exemption, which is provided under Order 22 Rule 4(4) CPC is obtained from the court before the delivery of the judgment, in that case, it would be open to the court to exempt the plaintiff from bringing on record the heirs and legal representatives of the defendant even if the defendant had died during the pendency of the suit as if the judgment was pronounced by treating that the defendant was alive notwithstanding the death of such defendant and shall have the same force and effect as if it was pronounced before the death had taken place. That being the position, we are, therefore, of the view that since in this case, admittedly, exemption was obtained after the judgment was pronounced, the provision of Order 22 Rule 4(4) CPC would not be attracted.

In our view, the aforesaid decision in Zahirul Islam [(2003) 1 SCC 476] can also be distinguished on facts. As noted hereinearlier, in that decision, the plaintiff did not seek permission of the Court under Order 22 Rule 4(4) CPC and in that view of the matter, this Court held that the legal representatives of the deceased defendant was entitled to be brought on record in the suit. Admittedly, in our case, after the judgment was pronounced, the permission was sought to exempt the plaintiff from the necessity of substituting the heirs and legal representatives of the defendant and not before it. That being the position, we do not find any ground to rely on this judgment of this Court as sought by Mr Ranjit Kumar, learned Senior Counsel appearing for the appellant.

This view has also been expressed by the Madras High Court in Elisa v. A. Doss [AIR 1992 Mad 159] in which the Madras High Court in para 3 had observed as follows: (AIR pp. 160-61, para 3)

“3. It is seen from the rules that an application to bring the legal representatives on record shall be made within the time limited by law and if no application is made within the said period, the suit shall abate as against the deceased defendant. That is the effect of sub-rule (3). Sub-rule (4) provides an exception to sub-rule (3). Under sub-rule (4), it is open to the court to pass an order exempting the plaintiff from the necessity of bringing on record the legal representatives of any defendant, who had failed to file a written statement or if having filed the written statement, failed to appear and contest the suit at the hearing. But, the language of sub-rule (4) is clear enough to show that the court must pass an order exempting the plaintiff from the necessity of substituting the legal representatives. Of course, it is not necessary for the plaintiff to file a written application seeking such exemption, as the rule does not require one. Under the said rule, the court must apply its mind and think it fit, in the facts and circumstances of the case, to grant the exemption. For granting such exemption, the defendant who died should have remained ex parte, either without filing the written statement or after filing the written statement. It is clear from the language of the said rule that the order of exemption shall be passed before a judgment in the case is pronounced. The relevant portion of the said rule reads that the court ‘may exempt the plaintiff’ and ‘judgment may, in such case pronounced’. That part of the sub-rule says that the order of exemption should precede the judgment to be pronounced in the suit.”

(emphasis supplied)

For the reasons aforesaid, we are of the opinion that the High Court had rightly interpreted the provision of Order 22 Rule 4(4) CPC and accordingly held that the decree passed by the trial court on 20-12- 2002, in OS No. 3946 of 1999 was a nullity in the eye of the law as the defendant had died during the pendency of the suit for specific performance of the contract for sale and no exemption was sought at the instance of the appellant-plaintiff to bring on record the heirs and legal representatives of the defendant before the judgment was pronounced.”

(self emphasis supplied)

If the facts and circumstances of the present case are seen, in the light of the judgment of the Hon’ble Supreme Court, neither an application, under Order 22 Rule 4 CPC, nor, under Order 22 Rule 4 (4) CPC has been filed, when, the lis was pending before the learned First Appellate Court. Meaning thereby, the judgment and decree has been passed, by the learned First Appellate Court, in ignorance of the death of defendant No. 22-Jarbu, who was impleaded as respondent No. 38, in the appeal.

Even otherwise, the plaintiffs have sought the relief against all the defendants, including Jarbu. Merely, he has not put appearance and opted not to file the written statement, does not mean that the power of Order 22 Rule 4 (4) CPC can be used, at any stage. The said power is to be exercised, when, the lis was pending before the learned First Appellate Court, when, death had taken place.

Undisputedly, the matter has been decided against a dead person. Decree passed by the Court for or against a dead person is nullity.

While holding so, the view of this Court is being guided by the decision of the Hon’ble Supreme Court in Gurnam Singh (Dead) through Legal Representatives & Ors. versus Gurbachan Kaur (Dead) by Legal Representatives, reported in (2017) 13 Supreme Court Cases 414, wherein, it has been observed, in para-21, of the judgment, as under:

“It is a fundamental principle of law laid down by this Court in Kiran Singh’s case (supra) that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a ‘nullity’.”

In view of the above, the application, under consideration is allowed and disposed of.

RSA No. 494 of 2019

In view of the order passed in CMP No. 7049 of 2023 (supra), the impugned judgment and decree, dated 29th June, 2019, passed by the learned First Appellate Court, in Civil Appeal No. 42/2013, having been passed against a dead person, is set aside and the matter is remanded back to the learned First Appellate Court, for fresh disposal, after deciding the question of abatement, on account of death of respondent No. 38-Jarbu, in accordance with law.

Since, the lis is pending from the year 2010, it is expected from the learned First Appellate Court, to decide the matter, expeditiously, preferably within a period of four months, from the date of appearance of parties.

Parties, through their learned counsel, are directed to appear before the learned First Appellate Court, on …………….

Pending miscellaneous applications are also disposed of accordingly.

Send down the record forthwith.