Jharkhand High Court
Sunaina Devi vs (A). Anand Kumar Modi on 27 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 928 of 2022
Sunaina Devi, wife of Ajay Sinha, aged about 52 years, resident of
Ranchi-Patna Road, Ward No.14, Near P.W.D. Office, Jhumritelaiya, P.O.
& P.S. Telaiya, District- Koderma ... Petitioner
-Versus-
1(a). Anand Kumar Modi, son of Late Ashok Kumar Modi, resident of C/o
Shree Parwati Clinic, Old Bus Stand, P.O. & P.S. Jhumritelaiya, District-
Koderma
1(b). Anuj Kumar Modi, son of Late Ashok Kumar Modi, resident of C/o
Parwati Clinic, Old Bus Stand, P.O. & P.S. Jhumritelaiya, District-
Koderma
2. Parwati Devi (Deleted)
3. Krishna Pandey, son of Late Mahanand Pandey, resident of Ward No.15,
Gumo, Jhumretelaiya, P.O. Gumo, P.S. Telaiya, District- Koderma
4. Sunil Pandey, son of Late Mahanand Pandey, resident of Ward No.15,
Gumo, Jhumretelaiya, P.O. Gumo, P.S. Telaiya, District-Koderma
5. Neera Sukhani, Wife of Praveen Kumar Sukhani, resident of Ward No.5,
Taratand, Jhumritelaiya, P.O. & P.S. Telaiya, District- Koderma
6. Nikhil Sukhani, Son of Praveen Kumar Sukhani, resident of Ward No.5,
Taratand, Jhumritelaiya, P.O. & P.S. Telaiya, District- Koderma
7. Rattan Kumar Bhadani, Son of Guru Prasad Bhadani, Resident of Ward
No.6, Station Road, Jhumritelaiya, P.O. & P.S. Telaiya, District- Koderma
8. Mandakini Devi, Daughter of Late Dwarika Pandey, Wife of Late Murli
Pandey, Resident of Village Gumo, Jhumritelaiya, P.O. & P.S. Telaiya,
District-Koderma ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Prashant Pallav, Advocate
For O.P. Nos.5 & 6 : Mr. Vishal Kumar Tiwary, Advocate
For O.P. No.8 : Mr. Shresth Gautam, Advocate
Mr. Gaurav Kumar, Advocate
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17/27.01.2025 Heard Mr. Prasant Pallav, learned counsel for the petitioner, Mr. Vishal
Kumar Tiwary, learned counsel for opposite party nos. 5 and 6 and Mr. Shresth
Gautam along with Mr. Gaurav Kumar, learned counsel for opposite party no.8.
2. Office note suggests that notice upon opposite party no.3 has been
received by sister-in-law, notice upon opposite party no.4 has been received
by wife, notice upon opposite partyno.7 is validly served. Thus, notices upon
opposite party nos. 3, 4 and 7 are deemed to be validly served.
3. It has also been pointed out that opposite party nos.1 and 2 have left
for their heavenly abode and I.A. No.6477 of 2023 has been filed for
substitution of opposite party no.1 and for deletion of opposite party no.2.
4. Mr. Pallav, learned counsel for the petitioner submits that opposite
party no.1, namely, Ashok Kumar Modi and opposite party no.2, namely,
Parwati Devi died 2-3 years back, however, the petitioner was unaware of
the death of opposite party nos. 1 and 2. He submits that in this petition,
vide order dated 19.05.2023 notices were issued upon the opposite parties
including opposite party nos. 1 and 2, who have left for their heavenly abode.
He submits that it was not in the knowledge of the petitioner that opposite
party nos. 1 and 2 have left for their heavenly abode. He submits that in view
of that, substitution petition has been filed for substituting the legal
heirs/successors of opposite party no.1, who are sons of Late Ashok Kumar
Modi. He further submits that so far as opposite party no.2 is concerned, her
sons are already on record as opposite party nos. 3 and 4. He submits that
in view of that, this I.A. may kindly be allowed.
5. Mr. Tiwary, learned counsel for opposite party nos. 5 and 6 submits
that Civil Miscellaneous Case being No.6 of 2018 was filed challenging the
withdrawal of the suit and the learned Court has rejected the same and that
is under challenge in this petition. He opposed the petition on the ground
that the order has been passed against the dead persons on 11.11.2022 and
in view of that, the said order has become a nullity. To buttress this argument,
he relied upon the judgment passed by the Hon'ble Supreme Court in the
case of Kishun @ Ram Kishun (Dead) through LRS v. Behari (Dead)
by LRS, reported in (2005) 6 SCC 300. He refers paragraph 6 of the said
judgment, which reads as under:
"6. As rightly pointed out by learned counsel for the
appellants and fairly agreed to by learned senior counsel for
the respondent, the decree passed by the High Court in favour
of a party who was dead and against a party who was dead,
is obviously a nullity. It is conceded that the legal
representatives of neither of the parties were brought on
record in the second appeal and the second appeal stood
abated. On this short ground this appeal is liable to be allowed
and the decision of the High Court set aside."
Relying on the above judgment, he submits that the said order itself is
a nullity.
6. Mr. Gautam, learned counsel for opposite party no.8 adopts the
argument of Mr. Tiwary, learned counsel for opposite party nos. 5 and 6.
7. It is an admitted position that the suit was instituted for cancellation
of the sale deed and that was withdrawn and, thereafter, the said civil
miscellaneous case was filed by the petitioner on behalf of the original
plaintiff no.2 alleging that the compromise is forged one and the same is
obtained by fraud, however, the learned Court has passed the order against
the dead persons. If such a situation is there, the Court finds force in the
argument of Mr. Tiwary, learned counsel for opposite party nos. 5 and 6 that
the order is passed against the dead persons and that is a nullity.
8. Paragraph 9 of the judgment relied by Mr. Tiwary, learned counsel for
opposite party nos. 5 and 6 in the case of Kishun @ Ram Kishun (Dead)
through LRS (supra) reads as under:
"9. In this situation, we think that interests of justice would
be sub- served if the orders and decrees passed in the suit, in
the appeals and in the second appeal, are set aside and the
suit remanded to the trial court for making a proper enquiry
into the question whether there was a compromise of the
disputes between Behari on the one hand and Kishun and Ram
Charan on the other and to record a finding thereon in terms
of the proviso to Order XXIII Rule 3 of the Code. Now that the
legal representatives are before us, the trial court will direct
the formal correction of the cause title in the plaint, giving an
opportunity to the supplemental plaintiff to bring on record
other legal representatives of the parties to the suit, if any.
The trial court will thereafter proceed to decide the question
of the existence or otherwise of a compromise or an
adjustment of the dispute. If it comes to the conclusion that
there was a compromise of the dispute, it will consider
whether the compromise is lawful and could be accepted by
the court. In case it is found to be lawful, a decree would be
passed in terms of the compromise. But if it is found that no
compromise, as asserted has been proved, or an adjustment
of the dispute is proved, the trial court will proceed to decide
the suit on merits after giving the parties before it, the
necessary opportunity to establish their respective cases. If
sought for by the parties, the trial court will permit the parties
to amend their respective pleadings. Considering that the suit
is by now a vintage one, the trial court will expedite the fresh
trial and disposal of the suit."
9. In view of the above, if the order is a nullity and the suit was alleged
to be withdrawn by maneuvering the facts, as alleged by the petitioner and
in light of paragraph 9 of the said judgment, this matter can be remanded
back to the learned Court to allow all the parties to adduce the evidence and
for deciding the petition. Further, the said civil miscellaneous case has been
decided against the dead persons. Thus, the said order is a nullity.
10. If a legal representative adopts that alternative or course of action, it
cannot possibly be said that his option to be governed by the decree is
against the law or any concept of public policy or purpose, or the public
morality. It is thus a matter entirely at the discretion of the legal
representative of a deceased respondent against whom a decree has been
passed after his death to decide whether he will raise the question that the
decree has become a nullity, at the appropriate time, namely, during the
course of the hearing of any appeal that may be filed by the other party, or
to abandon that obvious technical objection and fight the appeal on the
merits. A reference may be made to the judgment passed in the case of
Kavarampeta Venkataiah and others v. Gayatri Educational Society
and others, reported in (2023) 12 SCC 555, wherein, paragraph 6 of the
judgment passed in the case of N. Jayaram Reddy v. LAO, reported in
(1979) 3 SCC 578 was considered by the Hon'ble Supreme Court.
Paragraph 8 of the judgment passed in the case of Kavarampeta
Venkataiah and others (supra) reads as under:
"8. Reliance was placed on the decision of this Court in
N. Jayaram Reddy v. LAO, to submit that if an order was
passed against a dead person, the representatives of such
deceased person could either treat the order or decree to be
a nullity or choose to challenge the order on merits. The
relevant observations of this Court in said decision were:-
"6. The basic fact remains that a decree against a
dead person is treated as a nullity because it cannot be
allowed to operate against his legal representative
when he was never brought on the record to defend
the case. Any other view would not be possible or
permissible for it would fasten on him a liability for
which he did not have any hearing. So while the law
treats such a decree as a nullity qua the legal
representative of the deceased defendant or
respondent, there is nothing to prevent him from
deciding that he will not treat the decree as a nullity,
but will abide by it as it stands, or as it may be mollified
thereafter on appeal. If a legal representative adopts
that alternative or course of action, it cannot possibly
be said that his option to be governed by the decree is
against the law or any concept of public policy or
purpose, or the public morality. It is thus a matter
entirely at the discretion of the legal representative of
a deceased respondent against whom a decree has
been passed after his death to decide whether he will
raise the question that the decree has become a nullity,
at the appropriate time, namely, during the course of
the hearing of any appeal that may be filed by the other
party, or to abandon that obvious technical objection
and fight the appeal on the merits. He may do so either
because of his faith in the strength of his case on the
merits, or because of incorrect legal advice, or for the
reason that he may not like to rely on a mere technical
plea, or because in the case of cross-appeals, he may
have the impression that bringing the legal
representative of the deceased respondent on record in
an appeal by a co-appellant will enure for the benefit of
or be sufficient for purposes of the cross- appeal. An
abandonment of a technical plea of abatement and the
consequential dismissal of the appeal, is therefore a
matter at the discretion of the legal representative of
the deceased respondent and there is no justification
for the argument to the contrary. It is equally futile to
argue that an appellate court is denuded of its
jurisdiction to hear an appeal in which one of the
respondents has died and the right to sue does not
survive against the surviving defendant or defendants
alone merely because no application has been made to
bring his legal representative on the record when no
objection to that effect is raised by anyone."
11. In view of the above, legal heirs/successors cannot be allowed to be
remediless and the said order is a nullity as the same has been passed against
the dead persons, who are opposite party nos. 1 and 2.
12. In view of the above proposition of law, the prayer made in the I.A.
is allowed.
13. Accordingly, I.A. No.6477 of 2023 is disposed of.
14. Learned counsel for the petitioner will substitute the names of legal
heirs/successors of deceased opposite party no.1 as disclosed in the said
I.A., in course of the day. It has been pointed out that the legal
heirs/successors of opposite party no.2 are already on the record as opposite
party nos. 3 and 4. Learned counsel for the petitioner will delete the name
of opposite party no.2 from the array of the opposite parties, in course of the
day.
15. In view of the above judgment relied by Mr. Tiwary, learned counsel
for opposite party nos. 5 and 6 in the case of Kishun @ Ram Kishun (Dead)
through LRS (supra), the said order passed by the learned Court against
the dead persons in the said civil miscellaneous case is a nullity and in view
of that, the order dated 11.11.2022 passed by the learned Civil Judge (Sr.
Division)-I, Koderma in Civil Miscellaneous Case No.6 of 2018 arising out of
Title Suit No.8 of 2010 is, hereby, set aside. The Civil Miscellaneous Case
No.6 of 2018 is restored to the file of the learned Court of Civil Judge (Sr.
Division)-I, Koderma, who will decide the same after providing opportunity
of hearing to all the sides and substitute the name of opposite party no.1,
namely, Late Ashok Kumar Modi.
16. Accordingly, this petition is allowed in above terms and disposed of.
17. Pending I.A., if any, is disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
