Punjab-Haryana High Court
Jinder Kaur And Ors. vs Sarabjit Singh Bajaj And Ors. on 11 December, 2002
Equivalent citations: (2003)134PLR255
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The present petition is by the legal representatives of Jasbir Singh, who was impieaded as a tenant in an ejectment petition filed by Sarabjit Singh Bajaj to seek his eviction, inter-alia, on the ground that he has sublet the premises.
2. The brief facts leading to the present petition are that one Sarabjit Singh Bajaj filed an ejectment petition against Jasbir Singh and two other respondents in March, 1995 alleging therein that the tenant is in arrears of rent and Jasbir Singh has sublet the shop in dispute to respondents No. 2 and 3 without written consent. It was mentioned that respondents No. 2 and 3 are running wine shop in the tenanted premises and every year new contract for sale of wine is allotted. Last year, respondent No. 1 sublet the shop to respondents No. 2 and 3 after taking heavy 'Pagdi' and now in the month of April 1995 new contract would be allotted and respondent No. 5 would sublet this shop to another contractor after taking Pagdi amount.
3. Jasbir Singh filed written statement on 18.9.1997 and contested the averments of the landlords. It may be noticed that the tenant filed written statement after a considerable time, although, he was served with the process of the court on 22.09.1995, when Mr. R.K. Sharma, advocate appeared for him before the trial court. However, soon after the written statement was filed, the landlord moved an application dated 28.10.1997 for amendment of the petition, so as to include the sub-tenants who has been sublet the premises subsequent to the filing of the ejectment petition. Such application was allowed on 24.8.1998. The sub-tenants were served through substituted service and have not put in appearance before the court of Rent Controller. On 09.04.1999, the counsel for the tenant informed the court that Jasbir Singh has died. His request to move an application for impleading the legal representatives was allowed and the case was adjourned to 20.4.1999. Again on 20.04.1999 request was made by the counsel for the tenant to move an application for impleading legal representatives. Since legal representatives were not impleaded, the trial court proceeded to frame issues on 29.4.1999. The proxy counsel for the respondents appeared on 23.07.1999, 06.09.1999, 13.10.1999 and it was only on 21.12.1999 when counsel for the respondents choose to abstain from the proceedings. The remaining respondents were already proceeded exparte. Though, on the basis of exparte evidence, the Rent Controller allowed the ejectment petition on 12.3.2001.
4. The present petitioners moved an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure to set aside an exparte order of ejectment, inter alia, alleging that Jasbir Singh had died on 21.03.1999 and that the petitioners had no knowledge about the pendency of the proceedings and, thus, exparte proceedings against them should be set aside. The petitioners have alleged that they came to know about the exparte order of ejectment from Vinod Puri on 31.5.2001 when he told them about the pendency of the ejectment proceedings and soon after they moved an application for setting aside the exparte order, In reply to such application, the landlord submitted that Jasbir Singh moved frivolous applications to prolong the litigation. One application was withdrawn on 21.03.1996 and numerous opportunities were taken for the purposes of filing of the written statement. The issues were framed on the basis of the written statement filed on behalf of the tenant and the landlord examined his witness on 23.07.1999 and the case was adjourned for cross-examination of the witness produced by the landlord. It was, thus, said that the tenants are delaying the disposal of the ejectment petition by way of unfair means only to harass the landlord. It was also mentioned that it was the duty of the legal representatives to come forward to be impleaded as legal heirs.
5. On the basis of the pleadings of the parties, the trial court framed issue to the effect whether there exists reasonable ground to set aside the exparte order. The petitioners herein produced Gurpreet Singh one of the applicants as AW1 and the evidence was closed by order on 19.04.2002. However, the landlord examined Pardeep Kumar as RW1 and produced many other documents, particularly, the proceedings of the court. It is pertinent to mention that the petitioner has not produced Vinod Puri, who informed the petitioner about the pendency of the ejectment petition to complete the chain of events as he is the person from whom knowledge of the pendency of the proceedings is attributed. The learned Rent Controller after examining the record and going through the evidence declined to set aside the exparte ejectment order passed against the petitioner. Normally, the exparte orders are not appreciated and it is always the desire of the courts that the parties should contest the litigation on merits. However, where the process of the courts is sought to be misused and exploited with the idea to delay the proceedings and to scuttle the due process of law, then the courts are not to grant indulgence to such a party.
6. I find that the present petitioners were fully aware of the ejectment proceedings and have intentionally not moved an application to bring themselves on record and wilfully kept away from the ejectment proceedings so as to further delay the final decision of the ejectment petition. Therefore, the courts will not give premium on such mis-conduct by a party to the proceedings.
7. Gurpreet Singh son of Jasbir Singh, the tenant has appeared as AW1 and has stated that this father was proceeded ex parte on 21.12.1999 and they came to know about the pendency of the case on 31.05.2001 from Vinod Puri, the friend of his father. It may be noticed that Gurpreet Singh is not an illiterate villager, but a partner in a wine shop in the city of Amritsar. The counsel for Jasbir Singh was aware of the death of Jasbir Singh and has informed the court in April, 1999 itself. He had sought adjournment for moving an application for impleading the legal representatives. He was present even during the course of proceedings after framing of the issues. Even AW1 Gurpreet Singh has admitted in the cross-examination that he came to know about the pendency of the case hardly after one or two days of the death of his father, who expired on 01.03.1999. Vinod Puri, the persons who is purported to have given the news of the pendency of the proceedings has not been produced. Thus I do not find any illegality in the finding recorded by the learned Rent Controller that the petitioners were aware of the ejectment proceedings and have not taken any steps to impleaded themselves as legal representatives and, thus, by virtue of the amended provisions of Order 22 Rule 4 of the Code of Civil Procedure as applicable in the State of Punjab, the petitioners are bound by the order passed by the Court.However, the counsel for the petitioners submitted that the provisions of Order 22 Rule 4, Sub-rule (3) of the Code of Civil Procedure contemplates that the judgment be pronounced notwithstanding death. However, it will not take into ambit the completion of pleadings and that of evidence. Such provisions have been enacted to enable the court to pronounce judgment when the proceedings are complete in all other respects. To appreciate the said argument, it will be beneficial to note some of the provisions of Order 22, of the Code of Civil Procedure as amended by Punjab and Haryana High Court from time to time.
"Order 22 Rule 2. Procedure where one of several plaintiffs or defendants dies and right to sue survives. - Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants."
2A.- 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 of the Court and to the person who is dominus litis.
2B. 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." (Rules 2A and AB as inserted on 11.04.1975)
3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.-(1) Where one or two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or sole plaintiff or sole-surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
2. Where within the time limited by law no application made under Sub-rule (1), the suit shall not abate 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. (Sub-rule (2) as substituted on 04.02.1992).
Rule 4 Procedure in case of death of one of several defendants or of sole defendant;- (1) Where one or two or more defendants dies and the fight to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under Sub-rule (1) 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.
(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 and 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) the Court must be satisfied prima facie that had 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 Limitation Act, 1963 shall apply to applications under Sub-rule (4). (Sub-Rule (3) substituted and Rule s 4, 5 and 6 inserted on 11.04.1975)"
8. A reading of the above provisions would show that provisions of Order 22 Rule 4 of the Code of Civil Procedure have been amended by the Punjab and Haryana High Court to facilitate the decisions in the suit and to avoid the malady to abatement. The rules contemplate continuation of proceedings and pronouncement of the judgment as if the proceedings have culminated before the death took place. The said amendments are deeming provisions and have to be interpreted keeping in view the intention for amending such rule. Such rules were amended in view of the fact that large number of appeals were dismissed as abatted in view of the fact that the plaintiffs or defendants were not brought on record, may be either due to lack of knowledge about the death or of the requirement that legal representatives are required to be impleaded. The consequences were grave and serious which frustrated the claim of the parties. In this view of the matter, the rules were amended.
However, the petitioner cannot be granted benefit of such amendment and restrictive meaning sought to be put on the interpretation is wholly unwarranted. After the defendant is served in the suit and before the filing of the written statement or before recording of evidence, the defendant dies the legal representatives by virtue of the Rule 4 are competent to continue with the proceedings and file written statement and to lead evidence, which will result, in ultimate pronouncement of the judgment. The legal representatives have the same right as that of the deceased defendant, The above provision has been interpreted by this court in Suresh Rai and Ors. v. Smt. Ganga Devi and Ors., (1991-1)99 P.L.R. 447, wherein, it was held that the principles on which a decree was passed against deceased-defendant could be explained. The observation of the court reads as undcr;-
"From the reading of Sub-rule(4) of Order XXII Rule 4 read with the Sub-rule (5) it is discernible that a decree passed against the deceased defendant can be set aside on the payer of the legal representatives qua them. However, it would be incumbent for them to prove: (1) that they were not aware of the suit i.e. they had not any knowledge of the suit, (ii) there was no intentional failure on their part to make an application to bring themselves on record. It was further made incumbent in view of Sub-rule (4) that before a decree is set aside the Court should satisfy itself that the result would have been different, then the one in the decree, had the legal representatives been brought on record. It is only on the satisfaction has been conferred on the Court to set aside a decree on such terms as to costs or otherwise, which the Court many think fit in the interest of justice."
Similarly, in Jaswant Singh and Anr. v. Ajit Singh and Ors., (1992-1)101 P.L.R. 550, this court has held that the legal representatives of the deceased can only object to the decree passed against the deceased and they have to satisfy that they have not intentionally failed to move an application for impleading them as legal representatives within time.
9. In view of the principles laid down above, F am of the opinion that the petitioners were aware of the ejectment proceedings and have intentionally not moved an application to bring themselves on record with the idea to delay and prolong the proceedings. As per the allegations of the landlord, the petitioner are subletting the premises to the wine contractors every year and, thus, delay of each year gives them substantial financial benefits. In fact, during the course of hearing, it was offered to the tenant to deposit current market rent to the premises and to contest the petition on merits. However, the counsel for the petitioner stated that he has on instruction in this respect.
10. In view of the facts and circumstances as discussed above, it is apparent that the application for setting aside of exparte ejectment order was moved only with a view to delay the proceedings so as to continue with the possession. Petitioner knew that the ejectment proceedings are continuing, but still did not move an application within reasonable time. Thus, I do not find any material illegality or irregularity in the order passed by the Rent Controller and, thus the present revision petition is dismissed with costs of Rs. 3000/-.