Punjab-Haryana High Court
Gurdial Singh vs . Kulwant Kaur And Others on 12 October, 2009
Author: Permod Kohli
Bench: Permod Kohli
CR No.4906 of 2004 :1 :
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 12.10.2009
Gurdial Singh Vs. Kulwant Kaur and others
CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI
Present: Mr.Sharad Aggarwal, Advocate.
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PERMOD KOHLI, J. (Oral):
The petitioner was defendant in the suit filed by Balwinder Singh son of Jai Singh, the predecessor-in-interest of the respondents herein. The civil suit bearing No.417-1 of 23.08.1985 filed by Balwinder Singh was dismissed by the learned trial Court vide its judgment and decree dated 14.11.1990 by the Sub Judge First Class, Moga. The plaintiff filed an appeal in the Court of learned Additional District Judge, Faridkot. The appellate Court set aside the judgment and decree of the learned trial Court. Resultantly, the suit filed by Balwinder Singh was decreed vide judgment and decree dated 29.10.1997.
After passing of the aforesaid judgment and decree, the present petitioner filed an application under Order 23 Rules 3 and 11 of the Code of Civil Procedure for recalling the order dated 29.10.1997 on the ground that the Appellate Court passed the judgment and decree on CR No.4906 of 2004 :2 : 29.10.1997, the sole plaintiff-appellant in the case had died on 30.08.1993 and the Legal Representatives of the deceased have not been brought on record. This application filed by the petitioner has been decided vide the impugned order dated 11.2.2004 by the learned Additional District Judge, Faridkot, wherein it has been held that in view of the amendment to Rules 2 and 3 of Order 22 of the Code of Civil Procedure, the suit does not abate and the decree passed by the Appellate Court is valid.
I have gone through the provisions of Rules 2 and 3 of Order 22 of the Code of Civil Procedure as amended by the Punjab and Haryana, which reads as under:-
"High Court Amendment- (Punjab, Haryana and Chandigarh)-For existing sub-rule (2) of rule 3, substitute the following" "Where within the time limited by law no application is made under sub-rule (1), the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place, and the contract between the deceased and the pleader in that event shall continue to subsist. Notification No.GSR 14/C.A.5/1908/S.122/92 , CR No.4906 of 2004 :3 : dated 21-2-1992)"
In view of the above amendment, the suit does not abate on the death of plaintiff even if no application for bringing L.Rs of deceased plaintiff are not brought on record. the learned Court below has rightly rejected the application. There is no merit in the present petition and the same is hereby dismissed with no order as to costs.
12.10.2009 (PERMOD KOHLI) BLS JUDGE