Punjab-Haryana High Court
Darbara Singh Deceased Through ... vs Som Nath on 6 November, 2023
Neutral Citation No:=2023:PHHC:139900
2023:PHHC:139900
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-6203-2023
Reserved on 02.11.2023
Pronounced on: 06.11.2023
Darbara Singh, deceased through his LR Gurdeep Singh .... Petitioner
Versus
Som Nath .... Respondent
CORAM: HON'BLE MR. JUSTICE GURBIR SINGH
Present: Mr. N.C. Kinra, Advocate and
Ms. Apoorva Kinra, Advocate for the petitioner.
Mr. Som Nath, respondent/caveator in person.
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GURBIR SINGH, J.
1. Challenge in this revision petition filed under Article 227 of the
Constitution of India is for setting aside the order dated 06.07.2023
(Annexure P-1) passed by learned Additional District Judge, Chandigarh in
Civil Appeal No.34 of 30.01.2018, titled as Darbara Singh Versus Som Nath,
whereby the application moved by the petitioner for bringing him on record
as legal representative of the deceased father has been dismissed and
consequently, the appeal also stood dismissed.
2. Brief facts as culled out from the petition are that the
respondent-Som Nath filed a suit for specific performance of agreement to
sell dated 19.04.2013 against Darbara Singh (since deceased) with regard to
land as mentioned in the plaint. The suit was contested and on the basis of
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evidence led, the trial Court decreed the suit in favour of the respondent-
plaintiff vide judgment and decree dated 22.11.2017. The defendant-Darbara
Singh preferred an appeal against the said judgment and decree. However,
during the pendency of appeal, Darbara Singh expired on 15.12.2018.
Gurdeep Singh, being son of deceased Darbara Singh, moved an application
dated 09.05.2022 (Annexure P-4), for bringing him on record as his legal
representative. The said application was contested by the respondent-plaintiff
and filed the reply (Annexure P-5). The applicant-Gurdeep Singh also
subsequently filed an application for condonation of delay in filing the
application for bringing him on record as legal representative of the deceased
Darbara Singh (Annexure P-6), which was also contested by the respondent-
plaintiff by filing reply (Annexure P-7).
3. Learned counsel for the petitioner has submitted that the
application was mainly dismissed on the ground of delay as the limitation to
move such application was only 90 days and it cannot be expected that the
applicant-Gurdeep Singh (petitioner herein) was not having any knowledge
regarding the pendency of the appeal especially when he was residing with
his father Darbara Singh (since deceased) at the same address. The petitioner
was required to explain delay of each and every day. It is contended that
there was no limitation prescribed for filing application for bringing on
record the legal representative of deceased. In case Ram Phal and others
Versus Harbans Lal and others, 2014(69) R.C.R. (Civil) 798, it has been
held by this Court that there is no limitation for bringing on record the legal
representatives of the deceased and the suit would not abate.
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4. The respondent has appeared in person. He has submitted that
the petitioner intentionally did not move an application for bringing him on
record as legal representative of the deceased, the appellant before the First
Appellate Court, and limitation to implead legal heir of deceased party runs
from date of his death. He has placed reliance on the case Sadassiva Rauji
Gaitonde and others Versus Jose Joaquim Fonseca, 1976 AIR (Goa) 11.
5. I have heard the submissions of learned counsel for the
petitioner, respondent in person and have gone through the file.
6. As per provisions of Order 22 Rule 10-A CPC, it is the duty of
the pleader to communicate to a Court of death of party. The said Order 22
Rule 10-A CPC reads as under:-
"10-A. Duty of pleader to communicate to Court death of a
party.- Wherever a pleader appearing for a party to the suit
comes to know of the death of that party, he shall inform the
Court about it, and the Court shall thereupon give notice of
such death to the other party, and, for this purpose, the contract
between the pleader and the deceased party shall be deemed to
subsist."
7. In the case in hand, there is nothing on record that the Advocate
representing the appellant (since deceased) ever communicated the death of
appellant to the Court. Order 22 Rule 11 CPC reads as under:-
"11. Application of Order to appeals. - In the application of this
order to appeals, so far as may be, the word "plaintiff" shall be
held to include an appellant, the word "defendant" a
respondent, and the word "suit" an appeal."
So, the Rule with regard to bringing on record the legal representative of the
plaintiff which includes appellant as per Order 22 Rule 11 of CPC would be
applicable.
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8. In Order 22 Rule 3(2), this Court has made the following
amendment:-
"High Court Amendment-(Punjab, Haryana and
Chandigarh). -For existing sub-rule (2) of rule 3, substitute
the following:-
Where within the time limited by law no application is made
under sub-rule (1), the suit shall not abate as against the
deceased plaintiff and the judgment may be pronounced
notwithstanding his death which shall have the same effect as if
it has been pronounced before the death took place, and the
contract between the deceased and the pleader in that event
shall continue to subsist."
9. In case Ram Phal and others' case (supra), it has been held
that since there is an amendment made to Order 22 Rule 3 CPC, limitation
period of 90 days would not be applicable. So, the learned appellate Court
has wrongly held that the applicant was required to explain delay of each and
every day for bringing him on record. The authority in Sadassiva Rauji
Gaitonde and others' case (supra), as relied on by the respondent, is not
applicable in view of the amendment made by this Court.
10. Keeping in view the amendment made and settled principles of
law, the learned appellate Court was not justified in dismissing the
application for bringing the petitioner on record as legal representative of the
deceased appellant-Darbara Singh.
11. Accordingly, the revision petition is allowed. The order dated
06.07.2023 (Annexure P-1) passed by learned Additional District Judge,
Chandigarh, is hereby set aside and the petitioner is ordered to be impleaded
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as legal representative of the appellant-Darbara Singh (since deceased). The
learned appellate Court shall get amended memo and shall proceed with the
appeal for its disposal in accordance with law.
12. Parties are directed to appear before the concerned learned
Appellate Court on 16.11.2023.
(GURBIR SINGH)
JUDGE
06th November, 2023
sanjeev
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
Neutral Citation No:=2023:PHHC:139900
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