Ram Lal vs Krishan Lal and Others

Surjit Singh, Judge

Heard and gone through the record.

Petitioner, who is a plaintiff, in a suit pending in the trial Court, i.e. Court of Civil Judge, Junior Division, Kasauli, has filed the present petition, under Article 227 of the Constitution of India, seeking reversal of order dated 2nd July, 2011 of the trial Court, whereby his petition, for bringing on record the Legal Representatives of deceased respondent No. 9 (Jai Lal), respondent No. 11 (Het Ram) and Shyam Lal, has been rejected.

Petitioner''s prayer, for bringing on record the Legal Representatives of respondents No. 9 and 11 has been rejected, on the ground that the two respondents had been proceeded against ex-parte and, therefore, in view of prevision of Order 22 Rule 4(4) of the Code of Civil Procedure, there is no need for bringing on record their Legal Representatives. Learned trial Court has misread the provision of Order 22 Rule 4(4) of the Code of Civil Procedure, which applies when the plaintiff himself seeks exemption from the requirement of bringing on record the Legal Representatives of the deceased defendant(s), who had been proceeded against ex-parte. The provision does not apply, when the plaintiff seeks to bring on record the Legal Representatives of such deceased defendant(s), apprehending that there may be some objection at the time of execution of the decree.

In view of the abovestated position, order of learned trial Court, rejecting petitioner''s prayer for bringing on record the Legal Representatives of deceased respondents No. 9 and 11, is set aside.

As regards prayer for bringing on record Legal Representatives of Shyam Lal, reason given by the trial Court is that though the said respondent had died on 28th January, 2002, but application for bringing on record his Legal Representatives had been moved in the year 2009 and, thus, there was unexplained long delay. Learned trial Court itself has noticed in para-12 of its order that earlier the suit had been dismissed in default and when application for restoring the suit was pending, an application had been moved, under Order 22 Rule 4 of the Code of Civil Procedure, on 2nd July, 2002, for bringing on record his Legal Representatives, alleging that the petitioner-plaintiff had come to know about the death of Shyam Lal in the month of May, 2002, when it was returned on a notice issued to him that he had died. Now, when the petitioner had applied for bringing on record the Legal Representatives of said Shyam Lal, in the year 2002 itself, though in an application for restoration of the main suit, his prayer could not have been rejected, simply for the reason that the application in the main suit, for bringing on record his Legal Representatives, has been made in the year 2009. The fact would remain that it had been brought to the notice of the Court, in the year 2002 itself, by the petitioner that said Shyam Lal was dead and prayer had been made for bringing on record his Legal Representatives, though it is a different matter that the Court failed to decide that application.

For the foregoing reasons, the present petition is allowed, impugned order is set aside and Legal Representatives of the abovesaid three deceased respondents-defendants are ordered to be brought on record of the main suit.

Petition stands disposed of. Pending application also stands disposed of. Parties are directed to appear before the trial Court on 11th January, 2012.