Punjab-Haryana High Court
Anguri Devi & Ors vs Vikas Bajaj on 3 September, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
vinod kumar
2014.09.05 15:40
I attest to the accuracy and
integrity of this document
Chandigarh
CR No.4267 of 2014 [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.4267 of 2014
Date of decision:03.09.2014
Smt. Anguri Devi and others ...Petitioners
Versus
Vikas Bajaj ...Respondent
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Pawan Kumar, Senior Advocate, with
Mr. Anshuman Mandhar, Advocate, for the petitioners.
Mr. Sanjay Vij, Advocate,
for the respondent.
*****
RAKESH KUMAR JAIN, J.
This petition is filed against the order dated 24.03.2014 by which an application filed by the plaintiff under Order 1 Rule 10 and Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (here- in-after referred to as the "CPC") for impleading the petitioners as legal representatives of defendant no.1 Basti Ram, has been allowed.
The plaintiff filed a suit for specific performance of the agreement dated 30.12.2004 against defendants no.1 to 25 who alleged to have sold the land in dispute for a total sale consideration of `32,00,000/- and received the entire sale consideration, but they became dishonest as the plaintiff came to know that in collusion with defendant no.26, they have executed bogus documents of the sale of the part of the suit land in favour vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4267 of 2014 [2] ***** of defendant no.26 by way of sale deed bearing Vasika Nos.7198 and 7239 dated 29.06.2006 and 7430 dated 03.07.2006. The defendants tried to dispossess the plaintiff from the suit property, but failed. It is alleged that the plaintiff has always been ready and willing to perform his part of the contract to bear all expenses on account of execution and registration of the sale deed, but defendants no.1 to 25, having mala fide intentions, are delaying the execution of the sale deed on one pretext or the other. It is further alleged that the cause of action for filing the suit arose firstly when defendant no.26 got executed and registered the aforesaid bogus sale deed in its favour in collusion with defendant nos.1 to 25 and 10 days before filing of the suit when the defendants tried to dispossess the plaintiff and finally on 18.07.2006 when the defendants flatly refused to accept the just and legal request of the plaintiff. In the aforesaid circumstances, the plaintiff has prayed for performance of the agreement by execution and registration of the sale deed and also to restrain the defendants from interfering in his possession.
In the written statement filed by defendants no.2, 4, 6, 7 and 14, it was alleged that defendant no.1 Basti Ram had died on 25.12.2004, hence the suit against a dead person was not maintainable and defendant no.26, in its written statement, has alleged that it had paid full and final payment to defendants no.1 to 25 who had delivered possession to it at the spot, therefore, the only remedy is of seeking declaration and not specific performance.
During the pendency of the suit, the plaintiff filed the vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4267 of 2014 [3] ***** application under Order 1 Rule 10, Order 6 Rule 17 read with Section 151 of the CPC when the case was fixed for replication of the written statement of defendants except defendants no.1 and 3 on the ground that the plaintiff has come to know that defendant no.1 had expired and thus the application was filed to implead his legal representatives. It was also alleged that defendant no.1 had signed the agreement to sell on 20.12.2004 and died on 25.12.2004. However, in reply to the application, it was alleged that Basti Ram had already died on 25.12.2004, whereas the agreement is alleged to have been executed on 30.12.2004, which is a bogus and fictitious document.
The learned Trial Court, vide its impugned order, allowed the application observing that as to whether the plaintiff was aware of the death of defendant no.1 on the day of the filing of the suit is such a question which can be proved only after the parties would lead their evidence, but since the plaintiff has already moved an application for brining the legal representatives of deceased Basti Ram, no prejudice would be caused to the defendants if the application in hand is allowed.
Consequently, the present petition has been filed by the legal heirs of Basti Ram against their impleadment vide the impugned order in which counsel for the petitioners has argued that the consistent case of the plaintiff is that the agreement was entered into on 30.12.2004, whereas admittedly, Basti Ram died on 25.12.2004, therefore, he had not entered into the agreement and signatures of Basti Ram on the agreement is an act of forgery. Besides this, the main grievance of the petitioners is that since vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4267 of 2014 [4] ***** the suit has been filed on 26.07.2006, whereas Basti Ram had already died on 25.12.2004, therefore, the suit is bad in law as it would be a nullity and the legal representatives of the deceased Basti Ram cannot be substituted in terms of Order 22 Rule 4 of the CPC. In support of his submission, he has relied upon a judgment of the Mysore High Court in the case of C. Muttu v. Bharath Match Works, Sivakasi, AIR 1964 Mysore 293, a Division Bench judgment of the Jammu and Kashmir High Court in the case of Ali Mohd. Khan v. Vijay Tulsi, AIR 1986 J&K 26, a judgment in the case of Partap Mehta v. Krishna Devi, 1987 Rajdhani Law Reporter 596, Joginder Singh and others v. Krishan Lal and others, AIR 1977 Punjab & Haryana 180 and a judgment of the Rajasthan High Court in the case of Bhagesh Chandra v. Laxman Das (deceased) through Mahesh and Smt. Vidya, 1998 AIHC 727.
On the other hand, learned counsel for the respondent has argued that the agreement was entered into by defendants no.1 to 25 and if Basti Ram had already died, the suit would not be declared to be a nullity. It is further submitted that the plaintiff was not aware of the death of Basti Ram when the suit was filed and, therefore, his legal representatives could be impleaded. In support of his submission, he has relied upon a judgment of this Court in the case of Dhan Singh v. Gurdev Kaur and others, 2006(1) PLR 276.
I have heard learned counsel for the parties and perused the record with their able assistance.
From the facts and circumstances of this case, various questions vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4267 of 2014 [5] ***** have cropped up which are required to be decided. The first question is whether a suit brought against a person, lateron discovered to have died before the filing of the suit, can be substituted by another person as a defendant?
This question is answered by the Division Bench of the Mysore High Court in C. Muttu's case (supra) in which the plaintiff filed suit against one P.K.Periaswamy, Proprietor, Bharath Match Works, Sivakasi, on 31.07.1958, for recovery of the sum of `974.49/- with future interest. Lateron, it was found that the defendant had already died on 01.06.1958 long prior to the date of filing of the suit. The plaintiff in that case made an application under Order 22 Rule 4 read with Section 151 of the CPC and prayed for permission to amend the plaint by deleting the name of the defendant and substituting the name of the other person in the cause title of the plaint and to amend the second paragraph of the plaint suitably as a consequence of the amendment. That application was allowed by the Subordinate Judge against which the revision petition was filed before the High Court wherein it was held that a suit against a dead person is a nullity and no amendment can be allowed for substitution of another person. To reach to this conclusion, the Court had referred to the decision of the Supreme Court in the case of Hira Lal Patni v. Sri Kali Nath, AIR 1962 Supreme Court 199.
The decision in C. Muttu's case (supra) was followed by the Jammu and Kashmir High Court in Ali Mohd. Khan's case (supra) because in that case also, the plaintiff had filed the suit against Mohd. Sadie vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4267 of 2014 [6] ***** Khan, but lateron it was discovered that he had already expired 5 years before the institution of the suit and his legal representatives were sought to be brought on record. In that case also, it was held that substitution under Order 22 Rule 4 of the CPC in a suit against the dead person is not permissible and the suit is nullity.
Similar view has been expressed in Partap Mehta's case (supra) and Joginder Singh's case (supra).
However, learned counsel for the respondent has referred to a decision in Dhan Singh's case (supra) in which it was held that if the suit is filed also against the other persons besides the dead person, it would survive and the legal representatives of the dead person can be allowed to be brought on record. In that case, the suit was filed by the plaintiff not only against Hardial Kaur, but also against Gurdev Kaur and Hamir Kaur. Hardial Kaur died on 28.10.1998, whereas the suit was filed in the year 2004 and thus it was claimed that the suit was a nullity. It was held that even if it is presumed that the suit against Hardial Kaur was a nullity and her legal heirs have no right to be impleaded as party, the suit still survives and it was necessary for the Trial Court to allow the petitioner to bring on record the legal heirs of deceased Hardial Kaur. In that case, the Court relied upon a decision of this Court in the case of Karam Kaur (died) v. Dalip Singh (dead) through LRs, (2001-1) 127 PLR 514.
Thus, from the above discussion, this issue is settled that wherever a suit is filed against a dead person who is the sole defendant in the suit, the suit would be a nullity and the legal representatives of the said vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4267 of 2014 [7] ***** defendant cannot be substituted with the help of Order 22 Rule 4 read with Section 151 of the CPC.
The next question would be that if there are more than one defendants in the suit the present one, then whether the legal representatives of the deceased defendant, who died before the institution of the suit, can be substituted?
Learned counsel for the respondent has argued that as per the case set up by the plaintiff, the suit land was sold to him by defendants no.1 to 25 together after receiving the entire sale consideration while delivering the possession. The only thing left out on the part of the defendants was execution and registration of the sale deed which they had not performed rather sold the suit land to defendant no.26. Thus, when the suit was filed, there were more than one defendants and the plaintiff being unaware of the death of defendant no.1, impleaded him as a party.
The answer to this question is in the judgment in Joginder Singh's case (supra). In the said case, Krishan Lal filed an application for redemption of the land in dispute before the Collector which was dismissed by him and Krishan Lal challenged that order by way of a suit for declaration. Defendants no.1 to 9 in the suit as originally filed were the mortgagees and defendants no.10 to 13 were co-mortgagors of the plaintiff. Defendant no.5 Sant Singh and defendant no.9 Kushal Singh were amongst the mortgagees. During the pendency of the suit, it transpired that Kushal Singh and Sant Singh had died even prior to the filing of the application before the Collector. Faced with this situation, the plaintiff filed an vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4267 of 2014 [8] ***** application under Order 6 Rule 17 of the CPC before the Trial Court for substituting the names of the legal representatives of the aforesaid two defendants on the record of the suit. Since the application was contested, the Trial Court framed an issue to the effect that "whether the deaths of Sant Singh and Kushal Singh were not known to the plaintiff at the time of filing of the suit, if not to what effect?" The finding of fact recorded on the above issue by the Trial Court was that the plaintiff had no knowledge about the death of either of the two deceased defendants before the filing of the suit. Having come to that finding, the Trial Court had held that in case a suit has been filed against several defendants, one or more of whom were dead before the institution of the suit, the legal representatives of such defendants can be brought on record by seeking amendment of the plaint. As regards issue no.2 (relief), Joginder Singh etc. came to the Court and contended that notwithstanding the finding of fact recorded by the trial Court on issue no.1 (which was not even contested in revision before the High Court), the trial Court could not have permitted the amendment of the plaint and the operative part of the order under revision is liable to be set aside.
After hearing the counsel, the Court agreed with the first contention of the counsel for the petitioner holding that only such amendments can be allowed as are necessary for the purpose of determining the real question in controversy "between the parties" which would imply only such persons who are arrayed before the Court and were alive at the date of the institution of the suit, or have subsequently been substituted in place of persons who were alive on such a date and the provision of Order 6 vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4267 of 2014 [9] ***** Rule 17 of the CPC cannot be invoked by a litigant for deleting the name of a person from the array of parties to a suit who was dead before the institution of the suit and for substituting in the place of such person the name of somebody else.
Thus, it is hereby held that the provisions of Order 6 Rule 17 of the CPC cannot be invoked to delete the name of a dead person who was dead before the institution of the suit or for the purpose of substituting any other person in his place.
In Joginder Singh's case (supra) as well as in Dhan Singh's case (supra), this Court has held that if there are more than one defendants and the suit is filed against one of the defendants who was already dead, the legal heirs of the deceased defendant can be brought on record, subject to any question of limitation that may be raised by the legal representative of the deceased person who were brought on record as the suit had been validly presented in so far as the living defendants are concerned.
The next question would be whether the question of limitation of the suit against the newly added parties (legal representatives of the deceased defendant) should be decided with the main suit or at the time of trial.
This question is also answered in Joginder Singh's case (supra) wherein it has been held that "I am of the view that in a case of this type the trial Court must decide the question of limitation before or at the time of directing the impleading of the legal representatives of the persons who were dead before the institution of the suit, and also decide the vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4267 of 2014 [ 10 ] ***** question arising under the proviso if the same is invoked by any party before actually impleading any such legal representative". It was also held that "in the instant case, however, the trial Court has left over the question of limitation to be decided with the main suit. That course is in my opinion, not permitted by law."
The question again would be whether the legal representatives of deceased Basti Ram, if impleaded, would be deemed to have been arrayed in the suit from the initial stage or from the date of their impleadment. If it is from the date of initial stage, then the matter is altogether different and if it is from the date on which the application is allowed on 24.03.2014, whether the suit for specific performance against them would be within limitation would be another question because the cause of action is stated to have arisen for filing the suit on 18.07.2006, whereas the suit for specific performance could be filed within 3 years thereafter.
Thus, keeping in view the aforesaid facts and circumstances, the present revision petition is hereby disposed of and the matter is remanded back to the Trial Court to first decide the question as to whether the suit against the added defendants (legal representatives of Basti Ram/petitioners) is now within limitation or not because this question cannot be left by the Trial Court to be decided with the main case.
September 03, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE