Himachal Pradesh High Court
Sh. Om Prakash And Others vs State Of H.P And Others on 18 July, 2019
Bench: Dharam Chand Chaudhary, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. 61 of 2008
Decided on: 18.07.2019
.
Sh. Om Prakash and others .......Appellants.
Versus
State of H.P and others. ......Respondents
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mrs. Justice Jyotsna Rewal Dua, Judge
Whether approved for reporting?1No.
For the appellants: Mr. K.D. Sood, Sr. Advocate with
Mr. Shubham Sood, Advocate.
For the respondents: Mr. Ashok Sharma, A.G. with Mr.
Adarsh Sharma, Addl. A.G for
respondents No. 1 to 4.
Mr. Ajeet Jaswal, Advocate vice
counsel for respondents No. 8
and 11.
Dharam Chand Chaudhary, J. (Oral)
CMP No. 8441 of 2018 in LPA No. 61 of 2008.
The application is wrongly registered as CMP, whereas, being under Section 5 of the Limitation Act should have been registered as CMP(Main). The Registry is now directed to do the needful and correct the registration of this application in its books accordingly.
2. Appellant No.4 Joginder Singh has already expired on 7th December, 2007 i.e. well before the decision of the writ petition, he filed along with other appellants 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/09/2019 00:56:29 :::HCHPtherein on 3rd April, 2008. The writ petition was, however, dismissed without taking note of his death and taking steps .
for substitution of his legal representatives. In the nature of the dispute involved, the right to sue survives in favour of the proposed legal representatives. In appeal also, he came to be impleaded as appellant No.4. Now, this application has been filed with a prayer to substitute his legal representatives named in para 3 of the application on condonation of delay. The application is supported by the death certificate, Annexure A-1 which reveals that Joginder Singh aforesaid has expired on 7th December, 2007 at PGI Chandigarh.
3. Being so, the judgment passed by learned Single Judge is nullity having been passed in the absence of legal representatives of deceased appellant No.4 and without deciding the question of abatement. In view of the law laid down by this Court, as and when the question of abatement of the suit or appeal arises, the same can only be gone into and decided by the Court where the suit or appeal was pending at the time of death of a party. It has been held so by this Court in Jaswant Singh v. State of Himachal Pradesh and others, 2015(2) Shim.L.C. 674 while placing reliance on the judgments rendered by Co-
ordinate Benches of this Court in Jagan Nath and others ::: Downloaded on - 29/09/2019 00:56:29 :::HCHP v. Ishwari Devi, 1988(2) Shim.L.C. 273 and Karam Chand and others v. Bakshi Ram and others, 2002(1) .
Shim.L.C. 9.
4. Not only this, but the apex Court in Gurnam Singh (dead) by legal representatives and others versus Gurbachan Kaur (dead) by legal representatives (2017) 13 SCC 414, has reiterated the legal principles already settled further by holding that a decision in favour and/or against a dead person renders the same as nullity. The Apex Court has went one step further by holding that the decree passed without taking note of the death of a party to the lis or deciding the question of abatement and substitution of legal representatives could have been challenged at any time including at its execution stage.
This judgment reads as follows:
15) The question, therefore, is whether the impugned judgment/order is a nullity because it was passed by the High Court in favour of and also against the dead persons. In our considered opinion, it is a nullity. The reasons are not far to seek.
16) It is not in dispute that the appellant and the two respondents expired during the pendency of the second appeal. It is also not in dispute that no steps were taken by any of the legal representatives representing the dead persons and on whom the right to sue had devolved to file an application under Order 22 ::: Downloaded on - 29/09/2019 00:56:29 :::HCHP Rules 3 and 4 of the Code of Civil Procedure,1908 (for short, 'the Code') for bringing their names on record in place of the .
dead persons to enable them to continue the lis.
17) The law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "dismissed as abated".
18) Order 22 Rule 3(2) which applies in the case of the death of plaintiff/appellant and Order 22 Rule 4(3) which applies in the case of defendant/respondent provides the consequences for not filing the application for substitution of legal 6 representatives by the parties concerned within the time prescribed. These provisions read as under:-
Order 22 Rule 3(2) "Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."
Order 22 Rule 4(3) ::: Downloaded on - 29/09/2019 00:56:29 :::HCHP "Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant."
.
xxx xxx xxx
xxx xxx xxx
21) It is a fundamental principle of law laid
down by this court in Kiran Singh case, 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 r affects the very authority of the Court in passing such decree and goes to the root of the case. The principle, in our considered opinion, squarely applied 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'."
5. On the death of a party to the suit or appeal and for want of consequential steps, suit/appeal abates because abatement is automatic after the expiry of the period prescribed for filing an application to set aside the same or substitution of legal representatives of deceased party. In the case in hand, appellant No. 4 had expired on 7th December, 2007 i.e. during the pendency of the writ petition before learned Single Judge. The limitation prescribed for taking consequential steps and setting aside the abatement stands expired long back.::: Downloaded on - 29/09/2019 00:56:29 :::HCHP
6. In view of the legal as well as factual position discussed supra, this Court is left with no option except to .
hold that the judgment being against a dead person is nullity, hence not legally sustainable.
7. Consequently, the judgment under challenge in this appeal, being against a dead person is nullity and as such quashed and set aside. The case is remanded to learned Single Judge to decide the question of substitution of legal representatives and also the question of abatement of the writ petition, if any, after affording the parties due opportunity of being heard. The parties through learned Counsel representing them are directed to appear before learned Single Judge on 20th August, 2019.
8. The application as well as appeal stand disposed of accordingly.
(Dharam Chand Chaudhary)
Judge
July 18, 2019 (Jyotsna Rewal Dua)
(naveen) Judge
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