Himachal Pradesh High Court
Sheela Devi (Deceased) Through Her ... vs Kamlesh Kumari And Others on 3 July, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
Neutral Citation No.2024:HHC:4521
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
FAO No. 127 of 2022
Decided on 03rd July, 2024
Sheela Devi (deceased) through her legal heirs.
.
...Appellants
Versus
Kamlesh Kumari and others
...Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes
For the appellants : Mr. Ajay Kumar, Senior
Advocate, with Mr. Sunny
Modgil, Advocate.
For the respondents :
r Mr. Mukul Sood, Advocate,
for respondents No.1,2, 3(i) & 4.
Mr. Dheeraj K. Vashishat,
Advocate, for respondents No.5
and 8.
Mr. George, Advocate, for
respondent No.7.
Name of respondent No.6 is
deleted in terms of order dated
02.08.2022.
Ajay Mohan Goel, Judge (Oral)
By way of this First Appeal Against Order, the
appellants have challenged the judgment passed by the Court
of learned Additional District Judge-1, Una, H.P, in Civil Appeal
No. 150 of 2014, titled Kamlesh Kumari & Ors. Vs. Sheela Devi
1Whether reporters of the local papers may be allowed to see the judgment?
(now deceased) through her Lrs. & Ors, in terms whereof the
appeal filed by the respondents herein was accepted by the
learned Appellate Court and the matter was remanded back to
.
the learned Trial Court with the direction to decide the question
of abatement, if any, or to bring on record the legal heirs of
deceased Surinder Kumar.
2. Learned Senior Counsel appearing for the
appellants argues that the judgment passed by the learned
Appellate Court is not sustainable in the eyes of law for the
reason that Surinder Kumar happened to be the husband of
Late Surindera Kumari, one of the original defendants and legal
representative of Surindera Kumari happened to be Surinder
Kumar and their only daughter Reena Kumari, who was also
brought on record. Learned Senior Counsel submits that as
Reena Kumari was already on record, being the sole legal
heir/legal representative of deceased Surinder Kumar,
therefore, the findings returned by the learned Appellate Court
that the judgment passed by the Trial Court was a nullity, are
bad because the suit had not abated after the death of Surinder
Kumar. Accordingly, he prays that on this short count the
present appeal be allowed and after setting aside the judgment
passed by the learned Appellate Court, it be directed to decide
the appeal on merit.
.
3. Learned Counsel appearing for the respondents
submit that what is being submitted before this Court was not
argued before the learned First Appellate Court and in the
absence of there being any application etc. filed before the
Appellate Court, from which it could be inferred what all is being
contended by the appellant herein, there is no need to interfere
with the judgment passed by the learned Appellate Court.
4. I have heard learned Senior Counsel for the
appellants as also learned Counsel appearing for the
respondents.
5. As per record, civil suit in issue was instituted on
08.03.2001 and it was decided by the learned Trial Court on
09.06.2014. Smt. Surindera Kumari was one of the original
defendants, who died during the pendency of the civil suit and
her legal representatives namely Reena Kumari (daughter) and
Surender Kumar (husband), were brought on record. Surinder
Kumar died during the pendency of the proceedings before the
Trial Court itself on 30.05.2011. Thus, when learned Trial Court
passed the judgment and decree on 09.06.2014, the same was
passed by ignoring the factum of the death of Surinder Kumar.
.
When the matter, thereafter, landed before the learned First
Appellate Court, it set aside the judgment of learned Trial Court
on this count.
6. The contention of the learned Senior Counsel
appearing for the appellants that the sole legal heir/legal
representative of Surinder Kumar was only Reena Kumari,
though has not been refuted by the respondents by submitting
that there were other legal heirs of Surinder Kumar but they
have submitted that there is nothing on record from which this
particular contention being raised by the appellants, can be
substantiated.
7. There is a peculiar situation here wherein there is
neither an admission on the part of the respondents that Reena
Kumari happens to be sole legal heir/legal representative of
deceased Surinder Kumar nor there is a specific denial thereto.
However, the Court has no reason to disbelieve the appellant
8. In this background, it becomes a moot issue as to
whether it could be said that the judgment and decree was
passed by the learned Trial Court, against a dead person.
9. Order 22 of the Code of Civil Procedure Code deals
.
with death, marriage and insolvency of parties. Rule 2 thereof
provides the procedure where one of the several plaintiff or
defendant dies and right to sue survives, whereas, Rule 5
thereof deals with the question of determination of question as
to legal representatives. Proviso to Rule 5 of Order 22 of the
Code of Civil Procedure provides that where such question
arises before an Appellate Court, that Court may before
determining the question direct any sub-ordinate Court to try
and question and to return the records together with evidence,
if any recorded, at such trial, its findings and reasons thereof
and the Appellate Court may take the same into consideration
in determining the questions.
10. Be that as it may, the procedure prescribed in Order
22 of the Code of Civil Procedure, was not taken into
consideration by the learned Appellate Court while passing the
impugned judgment. The Court is making this observation in
the peculiar facts of the case wherein the deceased was
impleaded as a defendant in his capacity as a legal
representative of one of the original defendant along-with his
daughter, as original defendant happened to be the wife of the
.
deceased. Therefore, as the judgment under challenge cannot
stand the test of scrutiny, the same is set aside, i.e., the
judgment passed by the Court of learned Additional District
Judge-1, Una, H.P, in Civil Appeal No. 150 of 2014, titled
Kamlesh Kumari & Ors. Vs. Sheela Devi (now deceased)
through her Lrs. & Ors, is set aside and the matter is remanded
back to the learned Appellate Court with the direction that the
matter be proceeded within the realm of the provisions of
Section 22 of the Code of Civil Procedure. Parties through
Counsel are directed to appear before the learned Appellate
Court/Vacation Judge on 15.07.2024. In the event of any
application being filed under Order 22 of the Code of Civil
Procedure, by the parties concerned, within two weeks as from
the date of listing of the case before the learned Court below,
the same be decided within a period of two months after
hearing all the parties. The appeal be also thereafter taken to
its logical conclusion, as expeditiously as possible.
11. The appeal is allowed in above terms. Registry to
forthwith return the record to the learned Appellate Court, so
that the same is available before the learned Appellate Court on
.
or before the date fixed.
(Ajay Mohan Goel)
Judge
July 03, 2024
(Shivank Thakur)
r to
