Sh. Bidhi Chand vs Bidhi Chand And
2022 Latest Caselaw 8407 HP

                              1


IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

              ON THE 12th OF OCTOBER, 2022




                                                       .
                         BEFORE





          HON'BLE MR. JUSTICE AJAY MOHAN GOEL





               REGULAR SECOND APPEAL No. 212 of 2010

      BETWEEN:-
1.    SH. BIDHI CHAND, S/O LATE





      SH. BHAGWAN DASS.

2.    SMT. SUKHAN DEVI, WIDOW
      OF LATE SH. BHAGWAN DASS.

3.    SMT. MANGLA DEVI, D/O LATE

      SH. BHAGWAN DASS.

4.    SMT. SUMANA DEVI, D/O LATE
      SH. BHAGWAN DASS.



5.    SH. KISHORI LAL, S/O LATE
      SH. CHANGARU.




6.    SH. VIPAN KUMAR, S/O LATE
      SH. CHANGARU.





7.    RUMALA, D/O     LATE    SH.
      CHANGARU.





8.    SUKANAYA, D/O    LATE   SH.
      CHANGARU.

9.    SMT. TULSI DEVI, WIDOW OF
      LATE SH. CHANGARU.

10.   SMT. BRAFO DEVI, WIDOW OF
      LATE SH. DHANU.

11.   SMT. RUSHAMA, D/O LATE SH.
      DHANU.




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12.   SMT. SUBHDRA, D/O LATE SH.
      DHANU.




                                                      .
13.   SH. JIT, S/O LATE SH. DHANU.





      LATE SH. DHANU.





14.   SH. JAGOO, S/O TULSI OF
      LATE SH. CHOTTU RAM.

15.   SH. SUBASH CHAND, S/O LATE
      SH. CHOTTU RAM.

16.


17

      SMT. KESARI DEVI, WIDOW OF
      LATE SH. CHOTTU RAM.

      SH. TEK CHAND, S/O SH. RIKHI
      RAM    (SINCE   DECEASED)

      THROUGH LRS.:

17(A) YASHVINDER, S/O LATE SH.
      TEK CHAND



17(B) SAPNA DEVI, D/O LATE SH.
      TEK CHAND




17(C) SNEH LATA, D/O LATE SH. TEK
      CHAND.





18.   SH. AMAR NAT, S/O LATE
      RALL RAM.





19.   SH. BISHAN DASS, S/O LATE
      RALL RAM.

20.   SH. DEV RAJ, S/O RALLA RAM.

21.   SMT. BHUKRI DEVI, WIDOW OF
      LATE SH. GHIANA.

22.   SH. RAJ KUMAR, S/O LATE SH.
      GHIANA.




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23.   SMT. LAJYA DEVI, D/O LATE
      SH. GHIANA.

24.   SMT. GUDDO DEVI, D/O LATE




                                                      .
      SH. GHIANA.





25.   SMT. KAPOORI DEVI, D/O LATE
      SH. GHIANA.





26.   SH. SHAKTI CHAND, S/O LATE
      SH. JHAPHROO.

27.   SMT. JAIFALLI DEVI, WIDOW





      OF LATE SH. JHAPHROO.

28.   SMT. JOGAN DEVI, WIDOW OF
      DUNI CHAND.

29.   SMT. SAVITIRI DEVI, D/O DUNI

      CHAND.

30.   SMT. CHAMPA DEVI, D/O DUNI
      CHAND.



31.   SH. ROSHAN LAL, S/O LATE
      SH. RAGHU NATH.




32.   SH. SHER SINGH, S/O LATE SH.
      RAGHU NATH.





33.   SH. ROOP CHAND, S/O LATE
      SH. RAGHU NATH.





34.   SMT. SAVITRI DEVI, D/O LATE
      SH. RAGHU NATH.

35.   SMT. BINTA DEVI, D/O LATE
      SH. RAGHU NATH.

36.   SMT. KALAN DEVI, WIDOW OF
      LATE SH. RAGHU NATH.

37.   SH. CHUNI LAL, SON OF SH.
      GHSITU.




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38.      SH. MANI LAL, SON OF SH.
         GHSITU.




                                                                        .
39.      SH. RANI RAM, SON OF SH.





         GHSITU





                                                               ...APPELLANT
         (BY SHRI   R.K. GAUTAM, SENIOR
         ADVOCATE, WITH SHRI SAHIL DIXIT,
         ADVOCATE)
         AND

1.

2.
         SH. HARI SINGH.

         SH. SARUP CHAND.
                             r            to

3.       SH. HANS RAJ.

4.       SH. BASSI RAM.
         ALL SONS OF PARTAP CHAND,


         RESIDENTS OF MAHAL TRINDI,
         MAUZA NAGROTA BAGWAN, TEHSIL
         AND DISTRICT KANGRA, HIMACHAL
         PRADESH.




                                                          ...RESPONDENTS





         (NONE FOR THE RESPONDENTS)
         Whether approved for reporting? No.
__________________________________________________________





               This Regular Second Appeal is coming on for orders this day, the Court
passed the following:-


                                     JUDGMENT

Despite repeated calls, as none appeared on behalf of the

respondents, accordingly, they are ordered to be proceeded against ex

parte.

2. By way of this appeal, the appellants have challenged

judgment and decree dated 01.03.2004, passed by the Court of learned

.

Civil Judge (Junior Division)-II, Kangra, District Kangra, H.P., passed in

Civil Suit No. 70/91/88, titled as Hari Singh and others Vs. Bidhi Chand and

and others, in terms whereof, the suit for declaration and injunction and in

the alternative for possession was decreed by the learned Trial Court partly

by restraining the defendants from interfering in the possession of the

plaintiffs until they were dispossessed from the land mentioned in Para-23

of the judgment, in accordance with the final order passed by the revenue

authorities, as also judgment and decree dated 27.11.2009, passed by the

Court of learned Additional District Judge-II, Kangra at Dharamshala in Civil

Appeal No. 40/K/XII/04, in terms whereof, the appeal filed by the present

appellants against the judgment and decree dated 01.03.2004, passed by

the learned Trial Court was dismissed.

3. This appeal was admitted on 17th August, 2010 on the following

substantial question of law:-

"Whether the judgment and decree passed by the lower Appellate Court is not legally tenable because a ground in appeal was taken that one of the defendants namely Sh. Bhagwan Dass (defendant No. 2) had expired during the pendency of the suit before the Trial Court, therefore, the Trial Court's judgment and decree suffered with material irregularity but the lower Appellate Court has not

given any findings on this pint and has decided the matter finally, therefore, the impugned judgments and decrees being passed against the dead person

.

deserves to be set aside on this very ground alone?"

4. Learned Senior Counsel appearing for the appellants has

submitted that contesting defendant No. 2 died on 01.12.1997 during the

pendency of the Civil Suit. The Civil Suit was filed on 25.07.1988 and

decreed on 01.03.2004. Learned Senior Counsel thus submitted that here

is a case where the Civil Suit was decided by the learned Trial Court against

a dead person and despite this fact having been urged by way of an appeal

before the learned First Appellate Court, as is evident from Para-12 of the

grounds of appeal, the first appeal was dismissed, which constrained the

appellants to approach this Court by way of present appeal. Learned Senior

Counsel by placing reliance upon the judgment of the Hon'ble Supreme

Court in Gurnam Singh (dead) through legal representatives and others Vs.

Gurbachan Kaur (dead) by legal representatives (2017) 13 Supreme Court

cases 414 has submitted that the law is crystal clear that the judgment and

decree which is passed by a Court ignoring the factum of death of a party

before it is a nullity, de hors the fact that the judgment is in favour or against

a dead person. Accordingly, he submitted that in this view of the matter, the

appeal deserves to be allowed and the judgments and decrees passed by

both the learned Courts below are liable to be set aside.

5. Having heard learned counsel for the parties and having gone

through the substantial question of law, this Court is of the considered view

.

that there is merit in the submissions made by learned counsel for the

appellants. It is not in dispute that defendant No. 2 died during the pendency

of the Civil Suit on 01.12.1997 and the legal representatives of deceased

defendant were not brought on record. The suit was decreed against the

dead person by the learned Trial Court on 01.03.2004. When the appeal

was preferred by the aggrieved parties, in Para-12 thereof, a specific stand

was taken that the judgment and decree passed by the learned Trial Court

was bad, inter alia, for the reason that the judgment and decree was passed

against the dead person, as defendant No. 2-Bhagwan Dass had expired

during the pendency of the Civil Suit, but his legal representatives were not

brought on record by the plaintiffs. Yet, this point was not discussed by the

learned First Appellate Court and the effect of the death of defendant No. 2

was not taken into account at the time when the appeal was dismissed.

6. Hon'ble Supreme Court in Gurnam Singh's case (supra) has

been pleased to hold that the judgment and decree or order passed by the

Court in favour or against a dead person is a nullity. On account of the law

as now stands settled by the Hon'ble Supreme Court, this Court need not

to dwell any further on the issue and this appeal is accordingly allowed on

the ground that the judgment and decree was passed by the learned Trial

Court, ignoring the factum of the death of one of the defendants before it

and on the same ground, the judgment and decree passed by the learned

First Appellate Court is also liable to be set aside. Ordered accordingly.

.

Substantial question of law is answered accordingly. However, as the

judgments and decrees passed by both the learned Courts below have

been set aside on technicalities, therefore, the matter is remanded back to

the learned Trial Court with the direction to proceed with the matter as from

the stage when death of defendant No. 2 took place. In the event of any

application being filed by the plaintiffs to bring on record the legal

representatives of deceased defendant, appropriate order be passed

thereupon, on merits of the application as well as after taking into

consideration the response, if any, filed by the other parties. The appeal

stands allowed in above terms, so also pending miscellaneous applications,

if any.

(Ajay Mohan Goel) Judge

October 12, 2022 (bhupender)