Sher Singh and Others vs Raghu Ram and Others

T.R. Handa, J.—This petition u/s 115 of the Code of Civil Procedure, hereinafter referred to as ''the Code'', is to seek revision of the order, dated 21-3-1980 passed by the Additional District Judge Mandi on an application presented to him under Order 22, Rule 4 read with Rule 9 of the Code.

It appears that Raghu Ram and others, the Respondents herein (hereinafter called ''the Plaintiffs'') brought a suit against the present Petitioners and one Ghyaru (Defendant) praying for a declaration that the Plaintiffs were the exclusive owners and in possession of 3/4th share in the land detailed in the plaint and for issue of a perpetual injunction restraining the Defendants from interfering with the possession of the Plaintiffs over such land. The plea of the Defendants was that they were in actual possession of the suit land previously as tenants under the Plaintiffs and since the enforcement of the Himachal Pradesh Tenancy and Land Reforms Act as owners and as such the Plaintiffs were not entitled to any relief.

Along with the suit the Plaintiffs filed an application under Order 39 Rules 1 and 2 of the Code for issue of an ad interim injunction of the nature prayed for in the suit. That application was dismissed by the trial Court vide its order dated 11-9-1979.

The Plaintiffs then approached the District Judge in appeal against the order dated 11-9-1979 (supra) passed by the trial Court. That appeal was entrusted to the Additional District Judge for disposal. During the pendency of the appeal before the Additional District Judge, the Plaintiffs on 11-1-1980 moved an application in that Court under Order 22 Rules 4 and 9 of the Code alleging that Ghyaru Defendant had died on 7-9-1979 and praying that after setting aside the abatement, Smt. Jhunu the widow of the deceased being his sole legal representative be brought on the record.

Vide his impugned order, the learned Additional District Judge found that there was no sufficient cause to set aside the abatement and hence he rejected the application. The Additional District Judge, however, further found that the abatement was only partial as against the share of Ghyaru deceased and the entire suit had not, therefore, abated.

The Petitioners in this revision petition claim that the suit had abated in toto and not in part and hence they have approached this Court with the prayer that the impugned order of the Additional District Judge be modified accordingly.

As is apparent from the above narration of facts, the proceedings under Order 22 Rules 4 and 9 of the Code arose before the Additional District Judge in the course of hearing of the appeal against the order dated 11-9-1979 passed by the trial Court dismissing the Plaintiffs'' application made under Order 39 Rules 1 and 2 of the Code. It is an admitted position that Ghyaru Defendant was already dead when the trial Court passed its order dated 11-9-1979, the deceased having died on 7-9-1979. I have ascertained from the record in the presence of tie learned Counsel for the parties that the Plaintiffs'' application under Order 39 Rules 1 and 2 of the Code came up for hearing before the trial Court only after the death of Ghyaru on 11-9-1979 on which date it was dismissed. The order dated 11-9-1979 passed by the trial court against which the Plaintiffs preferred the appeal, was thus passed against a dead person also.

It is again not disputed that in the appeal preferred by the Plaintiffs against the order dated 11-9-1979 passed by the trial Court a dead person, namely, Ghyaru Defendant had been impleaded as a party Respondent.

On the facts narrated above and which are not in dispute, I find that the learned Additional District Judge had no jurisdiction to entertain or dispose of the Plaintiffs'' application under Order 22 Rules 4 and 9 of the Code and that the impugned order is liable to be quashed as a whole on this short ground alone. The proceedings under Order 22, whether these be for bringing on record the legal representatives of a deceased party or for setting aside the abatement, must, in my view, be initiated in the Court where the lis was pending at the time of the death of the party and such Court alone has the jurisdiction to entertain such proceedings. The reason is obvious and is not far off to Seek. It is only when a party to a lis or appeal dies during the pendency of the lis, that is, the suit or the appeal as the case may be, that the necessity of substituting the legal representatives of such deceased party can arise and an application under Order 22 Rules 3, 4 or 9, as the case may be, would lie. In case the death occurs prior to the institution of or after the disposal of such a lis, no question would arise for bringing on record the legal representatives of the deceased, inasmuch as the legal representatives are to be impleaded on the record of a pending lis only. The only exception to this can be conceived where proceedings under Order 22 are initiated in the appellate Court in respect of an appeal against a judgment to which the provisions of Order 22 Rule 6 can be attracted. It, therefore, follows that if a party was already dead on the commencement of the lis, the provisions of Order 22 would not be attracted except in the case where the provisions of Order 22 Rule 6 are applicable.

In the instant case Shri Devinder Gupta the learned Counsel for the Respondent-Plaintiffs frankly conceded that Shri Ghyaru Defendant having died on 7-9-1979, the order passed by the trial Court on 11-9-1979 on the application under Order 39 Rules 1 and 2 of the Code was a nullity. He further conceded that the appeal of the Plaintiffs preferred against that order in the Court of the District Judge was not maintainable inasmuch as it had been filed against a dead person. He further conceded that the proceedings under Order 22 Rules 4 and 9 could not be initiated in the Court of the District Judge for the reasons stated above. Shri Gupta further made a statement that the Plaintiffs have already moved an application under Order 22 Rules 4 and 9 of the Code in the trial Court for setting aside the abatement and that such proceedings were still pending before the trial Court.

In view of my observations made above that an application for setting aside the abatement and substituting the heirs of the deceased Defendant should have been made and dealt with by the trial Court in which the abatement occurred, I set aside the impugned order dated 21-3-1980 passed by the Additional District Judge and direct that the Plaintiffs'' application under Order 22 Rules 4 and 9 of the Code made for the above purpose shall be dealt with by the trial Court. For the reasons already stated I further direct that the appeal of the Plaintiffs against the order dated 11-9-1979 passed by the trial Court now pending before the Additional District Judge and which had been filed against a dead person be dismissed as not maintainable. The order dated 11-91979 passed by the trial Court on Plaintiffs'' application under Order 39 Rules 1 and 2 of the Code being a nullity, the trial Court is directed to re-hear that application and pass a fresh order thereon if considered necessary after the disposal of the Plaintiffs'' application under Order 22 Rules 4 and 9 of the Code.