Punjab-Haryana High Court
Dera Baba Thandi Ram vs Ruldu Signh (D) Thr Lrs & Ors on 25 September, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:128428
CR-7589-2016 (O&M) and 1
other connected cases
109
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision : 25th of September, 2024
CR-7589-2016 (O&M)
DERA BABA THANDI RAM ....Petitioner
Versus
RULDU SIGNH (D) THR LRS & ORS ...Respondents
CR-7590-2016
DERA BABA THANDI RAM ....Petitioner
Versus
JAGRUP SINGH & ANR ...Respondents
CR-7591-2016
DERA BABA THANDI RAM ....Petitioner
Versus
JASBIR SINGH & ORS ...Respondents
CR-7640-2016
DERA BABA THANDI RAM ....Petitioner
Versus
NACHHATTAR SINGH & ANR ...Respondents
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. Amit Jain, Senior Advocate with
Mr. Anupam Mathur, Advocate for the petitioner(s).
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Neutral Citation No:=2024:PHHC:128428
CR-7589-2016 (O&M) and 2
other connected cases
Mr. Manish K. Singla, Advocate and
Mr. Gagandeep Singh Gill, Advocate
for respondent No.3 in CR-7589-2016
for respondent No.2 in CR-7590-2016
for respondent No.7 in CR-7591-2016
for respondent No.2 in CR-7640-2016.
PANKAJ JAIN, J. (ORAL)
These revisions petitions are directed against order passed by
the Additional District Judge, Patiala whereby the applications filed at the
behest of two persons claiming themselves to be the legal representatives of
late Mahant Nirmal Dass, who died during the pendency of the appeal on
19th of January, 2015, have been disposed off allowing both of them to
participate in the present proceedings as the legal representatives of the
deceased without adjudicating their rival claims.
2. Counsel for both the parties do not dispute that in terms of
Order XXII Rule 5 Code of Civil Procedure, Court was under obligation to
first decide the issue of legal representatives and, thereafter, proceed.
However, both of them want to claim themselves to be the Mahant.
3. Mr. Jain Ld. Senior Counsel relies upon order Annexure P-10
dated 25th of November, 2016 (in CR-7589-2016) passed by Additional
District Judge, Patiala in Civil Appeal No.4/28.01.2014 to submit that
Mahatmim Raman Kanta has been declared as the legal representative and
the order has attained finality.
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4. Per contra, Mr. Singla even objects to mentioning of the
petitioner as Mahant even in the memo of parties and further submits that
Raman Kanta cannot claim title of Mahant.
5. The issue before this Court is not as to who is the legal
representative of late Mahant Nirmal Dass but the issue is whether lower
Appellate Court erred in allowing both the rival parties to represent the
estate of late Mahant Nirmal Dass as his legal representatives?
6. Order XXII of the Code of Civil Procedure, 1908 deals with
death, marriage and insolvency of parties. Order XXII Rules 3 & 4
prescribe procedure in case of death of one of several plaintiffs or of sole
plaintiff and one of several defendants or of sole defendant, respectively.
The provisions prescribe that on an application made w.r.t. survival of right
to sue, the Court shall appoint legal representatives of the deceased-
plaintiff(s)/defendant(s) and shall proceed with the suit. Rule 5 relates to
determination of question as to legal representatives. Rule 11 provides
application of Order to appeals where it has been specifically provided that
the word 'plaintiff' shall be held to include an appellant, the word 'defendant'
a respondent and the word 'suit' an appeal. The provisions read as under :
"3. Procedure in case of death of one of several plaintiffs
or of sole plaintiff.-- (1) Where one of two or more plaintiffs dies
and the right to sue does not survive to the surviving plaintiff or
plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies
and the right to the sue survives, the Court, on an application made
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in that behalf, shall cause the legal representative of the deceased
plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made
under sub-rule (1), the suit shall abate so far as the deceased
plaintiff is concerned, and, on the application of the defendant, the
Court may award to him the costs which he may have incurred in
defending the suit, to be recovered from the estate of the deceased
plaintiff.
4. Procedure in case of death of one of several
defendants or of sole defendant.--(1) Where one of two or more
defendants dies and the right to sue does not survive against the
surviving defendant or defendants alone or a sole defendant or sole
surviving defendant dies and the right to sue survives, the Court,
on an application made in that behalf, shall cause the legal
representative of the deceased defendants to be made a party and
shall proceed with the suit.
(2) Any person so made a party may make any defence
appropriate to his character as legal representative of the deceased
defendant.
(3) Where within the time limited by law no application is
made under sub-rule (1), the suit shall abate as against the
deceased defendant.
[(4) The Court whenever it thinks fit, may exempt the
plaintiff from the necessity of substituting the legal representatives
of any such defendant who has failed to file a written statement or
who, having filed it, has failed to appear and contest the suit at the
hearing; and judgment may, in such case, be pronounced against
the said defendant notwithstanding the death of such defendant and
shall have the same force and effect as if it has been pronounced
before death took place.
(5) Where--
(a) the plaintiff was ignorant of the death of a defendant,
and could not, for that reason, make an application for the
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substitution of the legal representative of the defendant under this
rule within the period specified in the Limitation Act, 1963 (36 of
1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period
specified therefore in the Limitation Act, 1963 (36 of 1963), for
setting aside the abatement and also for the admission of that
application under section 5 of that Act on the ground that he had,
by reason of such ignorance, sufficient cause for not making the
application with the period specified in the said Act,
the Court shall, in considering the application under the said
section 5, have due regard to the fact of such ignorance, if proved.]
5. Determination of question as to legal representative.
-- Where a question arises as to whether any person is or is not the
legal representative of a deceased plaintiff or a deceased defendant,
such question shall be determined by the Court:
[Provided that where such question arises before an
Appellate Court, that Court may, before determining the question,
direct any subordinate Court to try the question and to return the
records together with evidence, if any, recorded at such trial, its
findings and reasons therefor, and the Appellate Court may take the
same into consideration in determining the question.]
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."
7. The issue w.r.t. decision by the Court regarding rival claims of
the parties claiming themselves to be legal representative of the deceased is
no more re integra. Interpreting Order XXII Rule 5 CPC, Supreme Court in
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the case of Jaladi Suguna (Dead) through L.R. vs. Satya Sai Central
Trust and others, (2008) 8 SCC 521 held as under :
"11. The provisions of Rules 4 and 5 of Order 22 are mandatory.
When a respondent in an appeal dies, the Court cannot simply say
that it will hear all rival claimants to the estate of the deceased
respondent and proceed to dispose of the appeal. Nor can it
implead all persons claiming to be legal representatives, as parties
to the appeal without deciding who will represent the estate of the
deceased, and proceed to hear the appeal on merits. The court
cannot also postpone the decision as to who is the legal
representative of the deceased respondent, for being decided along
with the appeal on merits. The Code clearly provides that where a
question arises as to whether any person is or is not the legal
representative of a deceased respondent, such question shall be
determined by the court. The Code also provides that where one
of the respondents dies and the right to sue does not survive
against the surviving respondents, the court shall, on an
application made in that behalf, cause the legal representatives of
the deceased respondent to be made parties, and then proceed with
the case. Though Rule 5 does not specifically provide that
determination of legal representative should precede the hearing
of the appeal on merits, Rule 4 read with Rule 11 make it clear
that the appeal can be heard only after the legal representatives are
brought on record."
8. The aforesaid dictum has been further followed by Apex Court
in the case of Mahanth Satyanand @ Ramjee Singh vs. Shyam Lal
Chaudhan and others, (2018) 18 SCC 485 holding as under :
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"11. It is indisputable that the procedural laws are meant to
advance justice. A procedure contemplated under the code which is
mandatory in nature shall not be skipped or ignored by the Courts.
Whereas, in the instant case, the High Court's approach has diluted
the purport of Order 22 Rule 5 of the CPCand is contrary to the
law laid down by this Court in Jaladi Suguna (supra). Such an
approach of the High Court cannot be sustained.
12. Although we are apprised of the fact that alleged legal
representatives relying on certain customs to prove whether a
Grihastya could be a Guru under the relevant sampradaya. We need
not concern our self with the aforesaid findings on merit given by
the trial court at this stage. It is for the High Court to consider the
aforesaid report of the trial Court and determine the disputed
question of fact. It may not be out of context to note that the
determination under Order XXII Rule 5 of CPC is summary in
nature and for limited purpose. Order passed on the impleadment
applications, determining a particular person as legal representative
has no effect of final decision or operates as res-judicata between
the legal representatives as to the question of who should ascend as
Guru. At the cost of repetition, we may note that the determination
by the High Court would be limited to the question, as to who
should be brought on record in the place of deceased for the
purposes of continuing the suit alone, and nothing beyond that."
9. In view of above, the impugned orders are set aside. The
Appellate Court is directed to decide the claim w.r.t. legal representatives of
late Mahant Nirmal Dass within a period of six months.
10. Mr. Singla points out that the matter is now fixed for 29th of
October, 2024.
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11. On the said date, the parties shall appear before the Appellate
Court.
12. Petitions stand disposed off accordingly.
13. Pending application(s), if any, shall also stand disposed off.
14. A copy of this order be kept on the files of other connected
cases.
September 25, 2024 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes
Whether reportable : Yes
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