Jammu & Kashmir High Court
Surinder Pal And Ors vs Krishna Devi on 29 October, 2022
Sr.No. 14
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CSA No. 25/2012
IA No. 37/2012
CM nos. 5171/2022 and
5172/2022
Surinder Pal and ors. ....Petitioner/Appellant(s)
Through :- Mr V.R. Wazir, Sr. Advocate with
Mr. Abhishek Wazir, Advocate.
V/s
Krishna Devi ....Respondent(s)
Through :- None.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
29.10.2022
1. This civil second appeal in terms of its adjudication has come to be in
a Catch-22 situation on account of death of respondent-Mst. Krishna
Devi who, as being the plaintiff, came to file a civil suit for eviction
against the defendant onePuran Chand-the predecessor-in-interest of
the appellants herein, from a suit house situated in ward no. 1,
Basohli. The situation in the case was as to whom to implead as the
legal representative of the deceased Mst. Krishna Devi who had died
issueless, and the decree of eviction being there the appellants cannot
afford to abandon their cause in the civil second appeal.
2. Said suit of the respondent-Mst. Krishna Devi for eviction came to be
decreed by the Court of Munsiff, Basohli vide its judgment and
decree dated 29.04.2006 against which the appellants herein, as being
the successors-in-interest of the judgment debtor-Puran Chand, came
to file a civil first appeal before the Court of learned Principal District
Judge, Kathua which vide his judgment and decree dated 03.08.2012
came to uphold the original decree of eviction so passed by the Court
of Munsiff, Basohli and dismissed the civil first appeal of the
appellants.
3. The present civil second appeal of the appellants is addressed against
the said two judgments/decrees of the Courts below. In this civil
second appeal, the respondent-Mst. Krishna Devi was being
represented by the counsel as it is borne out from the interim orders
passed on the file. The learned counsel representing the respondent-
Mst. Krishna Devi came to disclose the fact regarding the demise of
said respondent-Mst. Krishna Devi which came to be taken on record
by this Court in its order dated 10.09.2021 and as such required the
appellants to take necessary steps for bringing on record the legal
representatives of the deceased-Mst. Krishna Devi. Date of death of
the respondent-Mst. Krishna Devi is unknown and undisclosed, but
the fact remains that she has demised.
4. The appellants have come forward with two applications, one for
bringing on record one Sh. Narinder Khajuria S/o Sh. Om Parkash
Khajuria R/o W. No. 1, Kathua as legal representative of the
deceased-Mst. Krishna Devi and the other application is for seeking
condonation of delay in filing the application for bringing on record
the legal representative of the deceased-Mst Krishna Devi. The
condonation of delay application is on the premise that the appellants
were unaware of the demise of the respondent-Mst. Krishna Devi
given the fact that she was residing outside the Union Territory of
Jammu and Kashmir and is reported to have expired in Delhi. As per
the appellants, respondent-Mst. Krishna Devi died issueless leaving
no legal heirs to succeed to her estate whereas said Sh. Narinder
Khajuria emerged in the scene in relation to the execution
proceedings qua the decree of eviction before the Court of Munsiff,
Basohli wherefrom the appellants came to know about the alleged
claim of Sh. Narinder Khajuria as being an alleged successor of the
respondent-Mst. Krishna Devi on account of some Will alleged to
have been executed by the respondent-Mst. Krishna Devi in favour of
said Sh. Narinder Khajuria which Will as per the learned counsel for
the appellants has come to be questioned by the appellants in a civil
suit pending trial before the Court of Munsiff, Basohli.
5. In the face of the aforesaid facts and circumstances of the case and
considering the spirit of Rule 4-A of Order 22 of the Jammu and
Kashmir Code of Civil Procedure Svt., 1977 where the onus is resting
upon the Court to see that any party dying during the pendency of the
civil suit/appeal, with right to sue surviving for or against, does not
get unrepresented in terms of his/her estateand for that an appropriate
order is to be passed by the Court concerned.
6. This Court,thus, deems it fit to have said Mr. Narinder Khajuria as
legal representative of the deceased-Mst. Krishna Devi for the sake of
the present civil appeal. Both the applications bearing CM nos.
5171/2022 and 5172/2022 are allowed. Sh. Narinder Khajuria S/o
Sh. Om Parkash Khajuria R/o Ward No. 1, Kathua is impleaded as
respondent in place of deceased/respondent-Mst. Krishna Devi.
7. Issue notice to the newly impleaded respondent-Sh. Narinder
Khajuria to be served through the Tamilat section of district Court
Kathua. The appellants to furnish talbana with respect to service of
the newly impleaded respondent-Sh. Narinder Khajuria before the
Registrar Judicial, Jammu.
8. List the matter on 13.12.2022.Interim direction in terms of
17.11.2012 shall become absolute and to last till final disposal of the
civil second appeal.
(Rahul Bharti)
Judge
JAMMU
29.10.2022
NARESH
