Jignesh Ranjitbhai Patel vs Shantiben D/O Hirabhai Gopalbhai
2023 Latest Caselaw 6829 Guj

                                                                                      NEUTRAL CITATION




      C/SCA/10126/2022                               JUDGMENT DATED: 15/09/2023

                                                                                      undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 10126 of 2022
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 11111 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

==========================================================

1      Whether Reporters of Local Papers may be allowed                    No
       to see the judgment ?

2      To be referred to the Reporter or not ?                            Yes

3      Whether their Lordships wish to see the fair copy                   No
       of the judgment ?

4      Whether this case involves a substantial question                   No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
                             JIGNESH RANJITBHAI PATEL
                                      Versus
                         SHANTIBEN D/O HIRABHAI GOPALBHAI
==========================================================
Appearance:
TURMISH B KANIYA(9428) for the Petitioner(s) No. 1,2,3
VIRAL K SHAH(5210) for the Petitioner(s) No. 1,2,3
 for the Respondent(s) No.
10,11,12,12.1,12.2,12.3,13,14,15,16,16.1,16.2,17,18,19,2,20,20.1,20.2,20.3,2
1,22,23,24,25,25.1,25.2,25.3,25.4,26,27,28,29,3,4,5,5.1,5.2,5.3,5.4,5.5,6,7,8,
9
MR.NANDISH H THACKAR(7008) for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                 Date : 15/09/2023
                                 ORAL JUDGMENT

1. Heard learned Advocate Mr. Viral K. Shah for the petitioners and

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

learned Advocate Mr. Nandish H. Thackar on caveat for the respondent

No.1, in both the petitions.

2. Issue Rule returnable forthwith. Learned Advocate Mr. Thackar

waives service of Rule on behalf of respondent No.1.

3. With consent of learned Advocates for the parties, both the

petitions are taken up for final hearing.

4. At this stage, it would be pertinent to mention here that learned

Advocate Mr. Thackar is appearing for respondent No.1 - original

plaintiff in both the petitions and whereas since it would appear that rest

of the respondents are original defendants No.1 to 5 and 7 to 29, the

petitioners being the legal heirs of the deceased defendant No.6 and since

it appears that other defendants may not have much of interest in the issue

in question, therefore this Court deems it appropriate to take up final

hearing of the petitions without any reference to other respondents.

5. It appears that since the issue raised in both the petitions are inter

connected, and therefore both the petitions are being taken up together.

6. In Special Civil Application No. 10126 of 2022 (hereinafter to be

referred to as "the first petition") the petitioners have inter alia challenged

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

two orders passed by the learned Civil Court being order dated

30.04.2022 passed below Exh.292 and order dated 09.03.2022 below

Exh.282 in Regular Civil Suit No. 241 of 2006. It would appear that vide

order dated 09.03.2022, the petitioners were denied right of the

petitioners to make defence appropriate to their characters, more

particularly by filing reply, and whereas vide order dated 30.04.2022, the

right of the petitioners to cross-examine the plaintiff and the plaintiff's

witnesses was had been denied. Special Civil Application No. 11111 of

2022 (hereinafter to be referred to as "the second petition") is preferred

inter alia challenging order below Exh. 274 dated 30.03.2022 in Regular

Civil Suit No. 241 of 2006 passed by the learned Civil Court, whereby

the petitioners have been joined as legal heirs of original of original

defendant No.6, more particularly in an application preferred by the

original plaintiff.

7. A short question is raised for consideration of this Court namely

whether legal heirs/representatives of a defendant, upon being permitted

to be joined in a suit proceedings under Order 22 Rule 4(2) of the Civil

Procedure Code (for short "the CPC"), would be entitled to file a reply

and seek for permission to cross-examine the plaintiff and witnesses of

the plaintiff, more particularly when in the suit proceedings, stage of

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

filing of reply and stage of cross-examination with regard to the original

party before his demise, had been closed. The issue which further arises

for consideration of this Court is whether the legal heirs of a deceased

defendant ought to have been joined without providing such party an

effective opportunity to representing himself.

8. Brief facts leading to filing of these petitions being that the

respondent No.1 herein was plaintiff of Regular Civil Suit No. 241 of

2006, which was preferred inter alia praying for partition, declaration and

permanent injunction with respect to the suit property. It would appear

that the defendants, more particularly defendants No. 1 to 6 had appeared

through Advocate before the Civil Court and whereas no written

statement had been filed on behalf of the defendant No.6. It would appear

that vide an order below Exh.90 dated 30.06.2011, learned Civil Court

had framed issues. It appears that even before the issues were framed, the

learned Civil Court had closed the right of the defendant No.6 to file a

written statement and whereas vide an order dated 16.04.2019 the right of

the defendant No.6 to cross-examine the plaintiff's witnesses was also

closed.

8.1 It appears that the defendant No.6 had expired on 16.12.2020 and

whereas the suit proceedings had continued and whereas plaintiff side had

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

concluded their arguments on 20.07.2021. It would appear that thereafter

on 22.02.2022, the plaintiff had filed an application for joining the legal

heirs of defendant No.6 in the suit proceedings and whereas the learned

Civil Court had issued notice to the petitioners herein, which had been

received by the petitioners herein on 04.03.2022. It would appear that the

petitioners on 09.03.2022 had filed an application Exh. 282 for seeking

time for making defence appropriate to their character as legal

representatives of deceased defendant No.6 and whereas the same had

been rejected by the learned Civil Court vide order dated 09.03.2022,

inter alia on the ground that the suit proceedings were kept for judgement

at which stage the petitioners have appeared and whereas since the stage

of filing reply has been closed much earlier, therefore the said application

was rejected. It would appear that vide an order dated 30.03.2022,

learned Civil Court had joined the petitioners as legal heirs of original

defendant No.6. It further appears that vide an application below Exh.

292, the applicants - petitioners herein had sought for an opportunity to

cross-examine the plaintiff and the plaintiff's witnesses and whereas the

said application had been rejected by the learned Civil Court inter alia on

the ground that the stage of filing of reply and the stage of cross-

examining the plaintiff and witnesses of plaintiff had been closed in case

of the defendant No.6 and whereas since the defendant No.6 had not

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

availed of the opportunity at the relevant point of time, no opportunity

could be granted and whereas learned Civil Court had further held that

the application appears to have been filed only to delay the proceedings.

8.2 As stated hereinabove, the orders dated 09.03.2022 and 30.04.2022

are assailed in Special Civil Application No. 10126 of 2022 and order

dated 30.03.2022 is assailed in Special Civil Application No. 11111 of

2022.

9. Heard learned Advocate Mr. Viral Shah on behalf of the

petitioners, who would submit that the petitioners having been joined in

exercise of Order 22 Rule 4 of the CPC, more particularly whereby, upon

the right to sue surviving, a legal representative of the deceased defendant

could be made a party to the proceedings and whereas upon such a person

being made a party, he would be entitled to make any defence appropriate

to his character as legal representative of the deceased defendant. Learned

Advocate would submit that if the legal heirs/representatives of the

deceased are joined, without permitting them to raise a defence

appropriate to their character, then purpose of the statute would be

rendered otiose and whereas it would be nothing but an empty formality.

Learned Advocate would submit that undoubtedly the original defendant

No.6 had not prosecuted the suit as diligently as it had ought to be, yet

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

that by itself would not preclude the right of the petitioners, upon being

joined as legal heirs of the deceased defendant to file a reply or to cross-

examine the plaintiff and his witnesses. Learned Advocate would submit

that granting of such an opportunity is as per the requirement of the

statute and whereas non-grant of such opportunity would be rendering the

joinder of parties nothing but an empty formality. Learned Advocate

would further in support of his submissions rely upon the decisions of the

Hon'ble Apex Court viz. (i) Jagdish Chandra Chatterjee Vs. Sri

Kishan, reported in (1972) 2 SCC 461, (ii) Bal Kishan Vs. Om

Prakash, reported in (1986) 4 SCC 155, (iii) Vidyawati Vs. Man

Mohan and Others, reported in (1995) 5 SCC 431, and (iv) Sumtibai

and Others Vs. Paras Finance Co. REGD Partnership Firm, Beawer

(Raj.) through Smt. Mankanwar (Smt) W/o Parasmal Chordia

(Dead) and others, reported in (2007) 10 SCC 82.

10. These petitions are vehemently objected to by learned Advocate

Mr. Nandish Thackar on behalf of the respondent No.1- original plaintiff.

Learned Advocate would submit that the legal heirs of a deceased person

would not be entitled to a better right than the deceased. Learned

Advocate would submit that when the deceased original defendant No.6

during his life time did not contest the suit proceedings diligently and had

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

not even filed reply and the stage of filing of reply and stage of cross-

examination having been closed much prior to his demise, the petitioners,

as his legal heirs would not be entitled to any better right than the original

defendant No.6 had. Learned Advocate would further submit that the

law envisages joining legal heirs/representatives of a deceased defendant,

if right to sue survives, but the same cannot be used as an excuse to turn

the clock back and whereas the statute does not intend the provisions to

be used as such. Learned Advocate would in support of his submissions

rely upon decision of the High Court of Rajasthan in case of Prem

Singh (Deceased through his LRs) Vs. Smt. Savitri Devi and Others,

reported in AIR 2007 (Raj.) 64; decision of the High Court of

Karnataka in case of Ansar Pasha and Ors. Vs. Sri Babu and

Another, [RFA No. 621 of 2007]; decision of the Bombay High Court

in case of Shakilabee Bashirkhan Pathan and Others Vs. Gopal

Harikishan Zanvar and Others. [Writ Petition No. 3522 of 2017];

decision of the Punjab and Haryana High Court in case of Hakam

Singh Vs. Isham Singh and Others, reported in 2009 SCC Online

P&H 4823; and decision of the Delhi High Court in case of Vigro

Grozen Food P. Ltd. Vs. S.K. Gandhi and Anr. [IA No. 4139 of 2010

in CS (OS) No. 1239 of 2002].

                                                                                            NEUTRAL CITATION




      C/SCA/10126/2022                                    JUDGMENT DATED: 15/09/2023

                                                                                           undefined

10.1 Learned Advocate Mr. Thackar would further submit that Article

227 of the Constitution of India empowers the High Court to interfere

only in case any grave miscarriage of justice or flagrant violation of law

and mere error of fact or law would not justify exercise of the said power.

Learned Advocate would submit that the present is not a case where

either grave miscarriage of justice has happened or there has been

flagrant violation of law, hence this Court may not interfere in the present

petition. Learned Advocate refers to decisions of the Hon'ble Apex Court

in case of Waryam Singh Vs. Amarnath, reported in AIR 1954 SC

2015 and in case of Shalini Shyam Shetty Vs. Rejendra Shankar Patil

reported in 2010 (8) SCC 329. Thus submitting learned Advocate Mr.

Thackar would request this Court not to entertain this petition.

11. Heard learned Advocates for the respective parties and perused the

documents on record.

12. As noted hereinabove, the question which arises for consideration

of this Court being that when a legal heir/representative of a deceased

defendant is joined in suit proceedings, should the legal

heir/representative be allowed to make a defence appropriate to his

character or should the legal heir/representative be relegated to the same

position, as the deceased defendant had stood prior to his demise.

                                                                                        NEUTRAL CITATION




      C/SCA/10126/2022                                JUDGMENT DATED: 15/09/2023

                                                                                       undefined

13. In the considered opinion of this Court, since the above question is

a question of law, it would appropriate that before undertaking any

discussion on the same, the law on this aspect as laid down by the

Hon'ble Apex Court in case of Jagdish Chandra Chatterjee (supra)

would be required to be stated; Para Nos. 9 and 10 being relevant for the

present purpose are reproduced herein-below for benefit.

"9. It is obvious that the appellant landlord's right to proceed with the appeal with a view to obtain possession of his premises did survive under Order XXII Rule 4 read with Rule 11 Civil Procedure Code. Where the right to sue and prosecute the appeal survives, the appellant is bound to cause the legal representatives of the deceased-respondent to be made a party and proceed with the appeal. Therefore, the heirs and legal representatives of the aforesaid B. N. Chatterji were rightly brought on record and the appeal had to proceed.

10. Under sub-clause (ii) of Rule 4 of Order XXII, Civil Procedure Code any person so made a party as a legal representative of the deceased, respondent was entitled to make any defence appropriate his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding. thereby a separate suit for a decision on the independent title."

14. In the case of Bal Kishan (supra), the Hon'ble Apex as observed at

Para No.3 as thus :

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

"3. Order XXII Rule 4 of the Code of Civil Procedure, 1908 provides that where one of two or more defendants dies and the right 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. Since the action in this case related to property, the right to sue did survive and the Rent Controller was right in bringing the legal representative of the deceased Musadi Lal on record. Sub-rule (2) of rule 4 Order XXII authorises any person who is brought on record as the legal representative of a defendant to make any defence appropriate to his character as legal representative of the deceased defendant. The said sub-rule authorises the legal representative of a deceased defendant or respondent to file an additional written statement or statement of objections raising all pleas which the deceased tenant had or could have raised except those which were personal to the deceased defendant or respondent. In the instant case Bal Kishan, the appellant could not have, therefore, in the capacity of the legal representative of the deceased respondent Musadi Lal who was admittedly a tenant, raised the plea that he was in possession of the building as a trespasser and the petition for eviction was not maintainable. It is true that it is possible for the Court in an appropriate case to implead the heirs of a deceased defendant in their personal capacity also in addition to bringing them on record as legal representatives of the deceased defendant avoiding thereby a separate suit for a decision on the independent title as observed in Jagdish Chander Chatterjee v. Sri Kishan. The relevant part of that decision at page 854 reads thus:

"Under sub-clause (ii) of Rule 4 of Order XXII, Civil Procedure Code any person so made a part as a legal representative of the deceased, respondent was entitled to make any defence appropriate to his character as legal representative of the deceased-respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title."" (Emphasis by this Court)

15. Observations of the Hon'ble Apex Court in the case of Sumtibai

and Others (supra) at Para Nos. 6, 8 and 15 being relevant for the present

purpose, are quoted hereinbelow for benefit.

"6. Learned counsel for the respondent submitted that in view of Order 22 Rule 4(2) a person who has been made a party can only take such pleas which are appropriate to his character of legal representative of the deceased. Learned counsel also submitted that two of the applicants/legal representatives of deceased Kapoor Chand, i.e. Narainlal and Devilal, had applied to the court under Order 1 Rule 10 to be impleaded, but their applications were rejected. An application was also filed by late Kapoor Chand praying that his sons be impleaded in the suit but that application was also rejected. Hence, the learned counsel submitted that the appellants cannot be permitted to file an additional written statement in this suit.

XXX XXX XXX

8. Every party in a case has a right to file a written statement. This is in accordance with natural justice. The Civil Procedure Code is really the rules of natural justice which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing. The appellants in the present case have already been made parties in the suit, but it would be strange if they are not allowed to take a defence. In our opinion, Order 22 Rule 4(2) CPC cannot be construed in the manner suggested by learned counsel for the respondent.

XXX XXX XXX

15. Also, merely because some applications have been rejected

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

earlier it does not mean that the legal representatives of late Kapoor Chand should not be allowed to file an additional written statement. In fact, no useful purpose would be served by merely allowing these legal representatives to be impleaded but not allowing them to file an additional written statement. In our opinion, this will clearly violate natural justice." (Emphasis by this Court)

16. Considering the law laid down by the Hon'ble Apex Court, more

particularly in case of Jagdish Chandra Chatterjee (supra) which is

reiterated in the later decisions, it would appear that under the provisions

of Order 22 Rule 4(2), a heir or the legal representative who is joined

could urge all contentions which the deceased could have urged except

those which were personal to the character of the deceased. It further

appears that the said proposition has been further explained by the

Hon'ble Apex Court in case of Bal Kishan (supra), wherein the Hon'ble

Apex Court has inter alia observed that the said sub-rule i.e. Order 22

Rule 4(2) authorises the legal representative of a deceased defendant to

file an additional written statement or statement of objections raising all

pleas which the deceased had or could have raised except those which

were personal to the deceased. In case of Sumtibai and Others (supra),

the Hon'ble Apex Court has clearly observed that in complying with the

principles of natural justice, a party who is joined under Order 22 Rule

4(2) of the CPC ought to be permitted to get an appropriate and

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

reasonable opportunity and whereas according the Hon'ble Apex Court, it

would be a strange situation if the parties are not allowed to take a

defence after being joined. The Hon'ble Apex Court further reiterates that

merely joining a party without affording him an opportunity, would not

serve any useful purpose and on the contrary such a proposition would be

in violation of the principles of natural justice.

17. Viewed from the perspective of the law laid down by the Hon'ble

Apex Court, it would clearly appear that a legal heir/representative of the

deceased, upon being joined, under Order 22 Rule 4(2), is entitled to avail

of all the defences which the deceased had taken or could have taken. In

the considered opinion of this Court, reiterating the law laid down by the

Hon'ble Apex Court, it would appear that merely joining of a party as a

legal heir or representative, without such party being afforded an

opportunity to raise defence, would be nothing but an empty formality

and an exercise in futility, since except for facilitating a smooth execution

of the decree, if the same were to be passed against the newly joined

defendants, no other fruitful purpose would have been served. Again,

when the statute does not lay down any embargo as regards only such

rights which were available to the deceased at the time of his demise,

being transferred to the legal heir/representative upon being joined as a

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

party to the suit proceedings, the same, could not have been read into the

statute, more particularly since the same would be clearly in violation of

the principles of natural justice.

17.1 Again, the statute i.e. Order 22 Rule 4(2), clearly lays down a

positive intent of the statute that is to ensure that a person who is joined

as a legal representative of a deceased, being entitled to make any

defence appropriate to his character, then merely on account of the fact

that stage of deceased litigant had been closed as regards filing of reply or

as regards cross-examining the plaintiff and his witnesses, the legal

representative could not be denied such opportunity. In the considered

opinion of this Court, the law laid down by the Hon'ble Apex Court, as

above, clearly lays down the dictum that upon being joined, the legal heir/

representative is entitled to raise defence which had been raised or could

have been raised by the deceased defendant and whereas in the

considered opinion of this Court, the said terminology, encompasses in its

ambit the situations like the present. Under such circumstances, in the

considered opinion of this Court, the impugned order dated 30.04.2022

passed below Exh.292 and the impugned order dated 09.03.2022 below

Exh.282 in Regular Civil Suit No. 241 of 2006, by the learned Civil

Court corresponding with Special Civil Application No. 10126 of 2022,

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

requires interference.

18. Insofar as the submissions made by learned Advocate Mr. Thackar

for the respondent No.1 - original plaintiff, in the considered opinion of

this Court, the above discussion, meets with the said arguments, and

whereas insofar as the decisions relied upon by the learned Advocate Mr.

Thackar, all the decisions are of the other learned High Courts and

whereas no decision of the Hon'ble Apex Court taking a contrary view to

the law laid down as noticed hereinabove has been submitted. Under such

circumstances, the decisions relied upon by the learned Advocate for the

respondent No.1, would not advance the cause of the respondent.

19. Furthermore, it requires to be noted that vide the orders impugned,

while the petitioners have been joined in the suit proceedings as legal

heirs of the original defendant No.6, yet the petitioners have neither been

afforded any opportunity to file a reply appropriate to their character nor

have the petitioners been given an opportunity to cross-examine the

plaintiff and his witness. In the considered opinion of this Court, denial of

such opportunities in addition to being in violation of the principles of

natural justice, would also be in flagrant violation of the provisions of

Order 22 Rule 4(2) of the CPC. Under such circumstances, the law laid

down by the Hon'ble Apex Court in case of Waryam Singh (supra) and

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

in case of Shalini Shyam Shetty (supra) would not advance the cause of

the respondent-original plaintiff, rather the same would support the case

of the petitioners herein.

20. Having regard to the above, the impugned order dated 30.04.2022

passed below Exh.292 and the impugned order dated 09.03.2022 below

Exh.282 in Regular Civil Suit No. 241 of 2006, by the learned Civil

Court, corresponding with Special Civil Application No. 10126 of 2022,

are hereby quashed and set aside. Rule is made absolute.

21. In view of the setting aside of the impugned orders corresponding

with Special Civil Application No. 10126 of 2022, in the considered

opinion of this Court, Special Civil Application No. 11111 of 2022, is not

required to be adjudicated, more particularly since it would appear that

the said petition had been preferred only with a limited submission that in

case the legal heirs/representatives are permitted to be joined, then they

should be afforded an appropriate opportunity, failing which, the legal

heirs/representatives ought not to be joined at all. Hence, the Special

Civil Application No. 11111 of 2022 is hereby disposed of as rejected.

Rule is discharged.

22. Considering that the civil suit is of the year 2006, the learned Civil

NEUTRAL CITATION

C/SCA/10126/2022 JUDGMENT DATED: 15/09/2023

undefined

Court is directed to appropriately lay down a timeline for filing of reply

by the petitioners herein as well as for affording an opportunity of cross-

examination of the plaintiff and his witnesses by the petitioners herein,

and whereas thereafter the learned Civil Court shall decide the civil suit

as expeditiously as possible.

(NIKHIL S. KARIEL,J) BDSONGARA