Punjab-Haryana High Court
Dera Santgarh , Harkhowal And Ors vs Manjit Singh And Anr on 17 February, 2023
Author: Vikas Suri
Bench: Vikas Suri
Neutral Citation No:=2023:PHHC:030644
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
107 CR No.1054 of 2023
Date of Decision : 17.02.2023
Dera Santgarh, Harkhowal, Tehsil & District
Hoshiarpur and others .....Petitioners
Versus
Manjit Singh and another .....Respondents
CORAM: HON'BLE MR JUSTICE VIKAS SURI
Present: Mr. Ajay Kalra, Advocate and
Mr. Pritpaljit Singh Sangha, Advocate for the petitioners.
*****
VIKAS SURI, J.
Challenge in the present revision petition preferred under Article 227 of the Constitution of India is to order dated 07.07.2022 (Annexure P-6) and order dated 18.10.2022 (Annexure P-7), whereby it was held that the proceedings against respondent No.1 (defendant No.1) stand abated due to death of said defendant, and that the civil suit filed by the petitioners against defendant-respondents stands abated in terms of Order XXII Rule 4 CPC, due to failure of the plaintiff-petitioners to file an application for impleading legal heirs of deceased defendants within the prescribed time.
The facts in brief, as culled out from the paper-book are that petitioner No.1 is the Dera and petitioner No.3 is its Mohatmim, whereas petitioner No.2 is a Gurudwara established within the precincts of petitioner No.1 and is controlled and managed by petitioner No.3. Petitioner No.3 was 1 of 9 ::: Downloaded on - 31-05-2023 23:39:08 ::: Neutral Citation No:=2023:PHHC:030644 CR-1054-2023 2 the Garwai/Chief Sevadar of one Sant Baba Didar Singh, predecessor-in- interest, who vide registered Will dated 28.04.2014 had bequeathed the suit property to petitioner No.3. Sant Baba Didar Singh is stated to have died on 11.01.2019.
Baba Jalwa Singh had established the Dera at Village Harkhowal by the name of Dera Sant Garh and was the first Mohatmim of the Dera. After his demise on 13.11.1957, his Garwai Baba Mahinder Singh inherited the headman-ship of the Dera and all the properties of the Dera vested in him. Inheritance mutation No.1482 dated 20.07.1976 was entered in the revenue record. At that point of time, a Sewadar of the Dera viz. Mohinder Singh vide registered Will dated 14.10.1976 bequeathed the entire estate in favour of petitioner No.2-Loh Langar Gurudwara. After the death of Mohinder Singh on 23.12.1992, an area of 51K-13M was mutated in favour of petitioner No.2 vide mutation No.1894 dated 08.04.1995. After the demise of Baba Mahinder Singh on 12.03.1984, Sant Baba Didar Singh was appointed his legatee and became Mohatmim of the Dera Sant Garh by Dastarbandhi. Baba Didar Singh, during his lifetime had appointed his Garwai Sant Baba Bhagwan Singh-petitioner No.3, as his sole legatee vide registered Will dated 28.04.2014. As noticed above, Baba Didar Singh breathed his last on 11.01.2019.
The defendants filed a civil suit bearing No. CS/124/2020 seeking a declaration that defendant no.1 is the Mohatmim of Dera Santgarh, Harkhowal. Prior thereto the defendants and their associates had made attempts to encroach upon the property of the plaintiff-petitioners and in that context FIR No.68 dated 31.05.2020 under Sections 447, 448, 506, 511, 148, 2 of 9 ::: Downloaded on - 31-05-2023 23:39:09 ::: Neutral Citation No:=2023:PHHC:030644 CR-1054-2023 3 149,120-B IPC was registered at P.S. Sri Anandpur Sahib. Thereafter, another attempt was made and FIR No.147 dated 11.09.2020 under Sections 447, 448, 511 IPC was registered at P.S. Sri Anandpur Sahib.
The present suit was filed by the petitioners for permanent injunction, restraining the defendants, their agents, servants, representatives etc. from interfering in the management and control of Dera Santgarh, Harkhowal and from interfering in the lawful and peaceful possession of the plaintiffs and from making any attempt to encroach upon the suit property.
On notice, defendants appeared in the said suit and filed written statement dated 04.08.2021 inter alia denying the existence of the registered Will dated 28.04.2021 as well as possession of the petitioners over the suit property. However, no document was filed along with the written statement to substantiate the averments made. An application was filed by the petitioners for directing the defendants to place on record the original documents alleged and relied upon in written statement. The said application was pending consideration till passing of the order dated 18.10.2022 (Annexure P-7).
In February 2022, it was informed that defendant No.1-Manjit Singh has died and accordingly, counsel for the petitioners sought time for impleading legal representatives, as noticed in the interlocutory order dated 24.02.2022. On the following date, death certificate of Manjit Singh was filed and thereafter on 04.05.2022, counsel representing the defendants suffered a statement that after the death of defendant No.1 on 17.01.2022, defendant No.2 is no longer the attorney of the first defendant. Vide order dated 17.05.2022, defendant No.1 was proceeded against ex parte. On the 3 of 9 ::: Downloaded on - 31-05-2023 23:39:09 ::: Neutral Citation No:=2023:PHHC:030644 CR-1054-2023 4 following date i.e. 07.07.2022, the impugned order Annexure P-6 was passed, followed by the impugned order Annexure P-7.
Learned counsel for the petitioners emphatically contends that the trial Court, while passing the impugned orders, has not taken into consideration the amendments made by this Court to the provisions of the First Schedule to the Code of Civil Procedure, 1908 (for short, the 'CPC'), in exercise of powers vested in it under Section 122 CPC. It is further submitted that the trial Court has failed to take into consideration sub-rule (3) to Rule 4 of Order XXII CPC, as substituted by the notification bearing No. GSR. 39C.A.5/1908/S.12257 dated 17.03.1975, published in the Punjab Government Gazette on 11.04.1975.
Learned counsel for the petitioners would submit that the impugned orders are patently contrary to the mandate of Rule 2-B of Order XXII CPC (as inserted vide local amendment) and the explicit language of Rule 4(3) of Order XXII CPC (as substituted vide local amendment).
Heard learned counsel for the petitioners and perused the pleadings and other documents appended with the present petition.
Sections 122 and 127 CPC, read as thus:-
"122. Power of certain High Courts to make rules.--High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subjects to their superintendence, and may be such rules annul, alter or add to all or any of the rules in the First Schedule.
127. Publication of rules.--Rules so made and approved shall be published in the Official Gazette, and shall from the date of publication or from such other date as may
4 of 9 ::: Downloaded on - 31-05-2023 23:39:09 ::: Neutral Citation No:=2023:PHHC:030644 CR-1054-2023 5 be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule." The notification issued by the Punjab and Haryana High Court in exercise of the aforesaid substantive provisions, bearing No. GSR. 39C.A.5/1908/S.12257 dated 17.03.1975, was published in the Punjab Government Gazette on 11.04.1975. The relevant part of the said notification, inasmuch as it pertains to amendments made in the provisions contained under Order XXII CPC, reads as under:-
"ORDER XXII
7. The following shall be inserted as Rules 2-A and 2-B after the existing Rule 2 of Order XXII :--
"2-A. Every Advocate appearing in a case who becomes aware of the death of a party to the litigation (whether he appeared for him or not) must give intimation about the death of that party to the Court and to the person who is dominus litis."
"2-B The duty to bring on record the legal representatives of the deceased-defendant shall be of the heirs of the deceased and not of the person who is dominus litis."
8. The following shall be substituted for the existing sub-rule (3) to Rule 4 of Order XXII :--
"Where within the time limited by law no application is made under sub-rule (i) the suit shall not abate as against the deceased-defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as it had been pronounced before the death took place."
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9. The following shall be inserted as sub-rules (4), (5) and (6) to Rule 4 of Order XXII:--
"(4) If a decree has been passed against a deceased-
defendant a person claiming to be his legal representative may apply for setting aside the decree qua him if it is proved that he was not aware of the suit or that he had not intentionally failed to make an application to bring himself on the record, the Court shall set aside the decree upon such terms as to costs or otherwise as it thinks fit."
"(5) Before setting aside the decree under sub-rule (4) of the Court must be satisfied prima facie that the legal representative been on the record a different result might have been reached in the suit."
"(6) The provisions of section 5 of the Indian Limitation Act 36 of 1963 shall apply to applications under sub-rule (4)."
Rule 1 of Order XXII CPC provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Rule 2 provides for the procedure where one of several plaintiffs or defendants dies and right to sue survives. Rule 2-B of Order XXII CPC, as inserted by the local amendment made in exercise of powers under Section 122 CPC, provides that the duty to bring on record the legal representatives of the deceased-defendant shall be of the heirs of the deceased and not of the person who is dominus litis.
It is to be noticed that by inserting sub-rule (4), (5) and (6) to Rule 4 of Order XXII CPC, provisions have also been made for the legal heirs of the deceased-defendant against whom a decree had been passed. If a decree has been passed against the deceased-defendant, then a person 6 of 9 ::: Downloaded on - 31-05-2023 23:39:09 ::: Neutral Citation No:=2023:PHHC:030644 CR-1054-2023 7 claiming himself to be his legal representative could apply for setting-aside the decree qua him, if it is proved that he was not aware of the suit or that he had not intentionally failed to make an application to bring himself on record.
It is urged on behalf of the petitioners that it was the duty of the heirs of deceased-defendant No.1 to bring on record legal representatives. It is pleaded that in the suit instituted by the defendants, i.e. civil suit No. CS/124/2020, pursuant to the death of Manjit Singh-defendant No.1 in the present suit, an application was moved on 12.05.2022 by one Amarjit Singh under Order 1 Rule 10 read with Order 22 Rule 1, 2, 3 CPC, stating therein that the respondent No.1-Manjit Singh has died on 17.01.2022. In the said application, it was stated that after the death of Manjit Singh, on 29.01.2022, on the day of bhog of Sri Akhand Path Sahib and bhog of Sri Sehj Path Sahib, applicant-Amarjit Singh was appointed the new Mahant/Mohitmim of Loh Langar Dera Santgarh Harkhowal, Hoshiarpur to manage the affairs of the Dera including the movable and immovable properties. The Pagri Rasam regarding appointment of Amarjit Singh was performed in the assembly and resolution was written in the assembly of the Nirmal Bhekh on that day. It is submitted that on that basis, Mahant Amarjit Singh alleged himself to be the successor of alleged erstwhile head Manjit Singh. It is submitted that as to who are the legal representatives of defendant No.1, would thus, also be a contested issue between the parties.
It is inter alia contended by counsel for the petitioners that even the date of death of defendant No.2 is not forthcoming on record and thus, the Court below has erred in law to hold that no application for impleading 7 of 9 ::: Downloaded on - 31-05-2023 23:39:09 ::: Neutral Citation No:=2023:PHHC:030644 CR-1054-2023 8 legal heirs of the deceased defendant No.2 was filed within the prescribed time and as such is not sustainable. In the absence of the relevant date being before the Court, the period of limitation could not have been determined.
Be that as it may, as the impugned orders have been passed not taking into consideration the amendments made by this Court in the provisions of First Schedule to the Code of Civil Procedure, the matter requires to be decided afresh by the Court of first instance. Thus, this Court refrains itself from discussing or delving into the merits of the issues raised before the trial Court, in the present proceedings.
The present petition is being disposed of without issuing notice, as the suit is held to have abated on the death of both the defendants and no application having been moved for impleading legal heirs within the prescribed time, as such there is no party opposite, as yet.
A perusal of Rule 4 (3) of Order XXII CPC, as substituted vide notification noticed above, shows that the said provision categorically stipulates that the suit shall not abate against the deceased-defendant, where within the time limited by law no application is made and the judgment be pronounced notwithstanding the death and shall have the same force and effect as it had been pronounced before the death took place.
In view of the provisions of procedural law, as applicable within the local limits of the jurisdiction of this Court, which have apparently not been taken into consideration by the trial Court, the impugned orders dated 07.07.2022 (Annexure P-6) and 18.10.2022 (Annexure P-7) are set-aside and the suit bearing CIS No. CS/1081/2020 is restored to its original docket. The trial Court would continue proceedings from the stage 8 of 9 ::: Downloaded on - 31-05-2023 23:39:09 ::: Neutral Citation No:=2023:PHHC:030644 CR-1054-2023 9 they existed on the date of passing the impugned order(s) and after taking into consideration the provisions applicable, shall proceed to pass appropriate orders afresh, in accordance with law.
The petitioners would be at liberty to move an appropriate application before the trial Court, to bring on record legal representatives of the deceased defendants, if so advised.
All pending miscellaneous applications, if any, are also disposed of.
This revision petition is disposed of in the aforesaid terms.
(VIKAS SURI)
JUDGE
February 17, 2023
Ajay
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
Neutral Citation No:=2023:PHHC:030644
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