Topkhanadesh Grah Nirman ... vs Kalu S/O Gopal
2022 Latest Caselaw 6224 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 8740/2022
Topkhanadesh Grah Nirman Sahakari Samiti Limited, Address- 2,
Hathroi,     Ajmer     Road,       Jaipur       (Rajasthan)Through        Mantri
Bhagwanchandra        Sharma         (Since      Deceased)Through         Deepak
Sharma S/o Shri Ramesh Chand Sharma, Aged About 56 Years,
(Present President Of Topkhanadesh Grah Nirman Sahakari
Samiti     Limited,   Address-       2,    Hathroi,       Ajmer   Road,    Jaipur
(Rajasthan).
                                                                  ----Petitioner
                                     Versus
1.       Kalu S/o Gopal, Aged About 58 Years, R/o Gajsinghpura,
         Tehsil And District Jaipur.
2.       Jodharam S/o Manglaram, R/o Gajsinghpura, Tehsil And
         District Jaipur Through Will- Holder And Legal Heir Of Late
         Shri Ramnarayan Saini S/o Late Kalyan Sahay Saini(Since
         Deceased)Through Legal Heirs-
3.       Smt. Laddu Devi Wife Of Late Ramnarayan Saini, Resident
         Of Plot No.11, Nand Colony, Tonk Road, Jaipur.
4.       Ashok Saini S/o Late Ramnarayan Saini, Resident Of Plot
         No.11, Nand Colony, Tonk Road, Jaipur.
5.       Nikhil Saini S/o Late Ramnarayan Saini, Resident Of Plot
         No.11, Nand Colony, Tonk Road, Jaipur.
6.       Asha Saini D/o Late Ramnarayan Saini, Resident Of Plot
         No.11, Nand Colony, Tonk Road, Jaipur.
7.       Smt. Santosh D/o Late Ramnarayan Saini, Resident Of
         Plot No.11, Nand Colony, Tonk Road, Jaipur.
8.       Smt. Meena Saini D/o Late Ramnarayan Saini, Resident
         Of Plot No.11, Nand Colony, Tonk Road, Jaipur.
9.       Smt. Sunita D/o Late Ramnarayan Saini, Resident Of Plot
         No.11, Nand Colony, Tonk Road, Jaipur.
10.      Smt. Kavita D/o Late Ramnarayan Saini, Resident Of Plot
         No.11, Nand Colony, Tonk Road, Jaipur.
11.      Smt. Sarita D/o Late Ramnarayan Saini, Resident Of Plot
         No.11, Nand Colony, Tonk Road, Jaipur.
12.      Teeja Wife Of Late Ramsahay, Resident Of Jaton Ki Dhani,
         Gajsinghpura, Gopalpura Byepass, Jaipur
13.      Babulal S/o Late Ramsahay, Resident Of Jaton Ki Dhani,

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          Gajsinghpura, Gopalpura Byepass, Jaipur
14.       Madan S/o Late Ramsahay, Resident Of Jaton Ki Dhani,
          Gajsinghpura, Gopalpura Byepass, Jaipur
15.       Shaitan S/o Late Ramsahay, Resident Of Jaton Ki Dhani,
          Gajsinghpura, Gopalpura Byepass, Jaipur
16.       Ratan S/o Late Ramsahay, Resident Of Jaton Ki Dhani,
          Gajsinghpura, Gopalpura Byepass, Jaipur
17.       Rajkumar S/o Late Ramsahay, Resident Of Jaton Ki Dhani,
          Gajsinghpura, Gopalpura Byepass, Jaipur
18.       Bhuri D/o Late Ramsahay, Resident Of Chalbaron Ki
          Dhani, Dahamikalan, Bagru, Jaipur
19.       Sunita Devi D/o Late Ramsahay Wife Of Vinod, Resident
          Of Puniya Ki Dhani, Nakya Road, Jaipur.
                                                                 ----Respondents

For Petitioner(s)          :    Mr. Kapil Gupta
                                Ms. Suruchi Kasliwal
                                Mr. Vikram Singh
                                Mr. Prayansh Jain
For Respondent(s)          :    Mr. Saransh Saini with Mr. Sanjeev
                                Kumar
                                Mr. Yash Sharma

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

16/09/2022

This writ petition under Article 227 of the Constitution of

India is directed against the order dated 28.05.2018 passed by

the learned District Judge, Jaipur Metropolitan in Civil Misc.

Application No.13222/2014 whereby, an application filed by the

respondents no.2/1 to 2/9 under Order 22 Rule 3 read with

Section 151 CPC for taking on record them as legal

representatives of deceased Ram Naraian Saini, the power of

attorney holder and legatee of the deceased applicant no.2, has

been allowed.

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The relevant facts of the case are that the respondent no.1

Shri Kaluram and the deceased respondent no.2, Shri Jodharam

Saini filed an application under Order 9 Rule 13 CPC dated

17.05.2014 for setting aside an ex parte judgement and decree

dated 07.12.1993 passed against them and late Shri Sheoram in

a suit for specific performance filed by the petitioner herein.

During its pendency, stating that not only the original applicant

no.2 has expired, but, his power of attorney holder Shri Ram

Narain Saini has also expired in whose favour, a Will dated

05.04.2014 was also executed by the applicant no.2 conferring

upon him right to contest the litigation and they being the legal

representatives of deceased Shri Ram Narain Saini, be impleaded

as such, the respondent no.2/1 to 2/9 filed an application as

stated herein above. The application has been allowed by the

learned Trial court vide its order dated 28.05.2018, the subject

matter of challenge in the instant writ petition.

Assailing the order, Ms. Suruchi Kasliwal, learned counsel for

the petitioner contended that the application filed by the

respondent no.2/1 to 2/9 was bereft of the requisite averments so

as to maintain it under Order 22 Rule 3 CPC in as much as even

the date of death of the applicant no.2, Shri Jodha Ram was not

mentioned therein.

She submits that indisputably, the applicant no.2, Shri Jodha

Ram had expired on 24.12.2015 and the application under Order 9

Rule 13 CPC automatically stood abated after the expiry the period

of 90 days and therefore, in absence of an application to set aside

the abatement along with an application seeking condonation of

delay, the application filed under Order 22 Rule 3 read with

Section 151 CPC, even otherwise also, could not have been

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allowed. Learned counsel further submitted that since the main

application itself stood abated, the subject application could not

have been allowed without issuing notice to the petitioner/non

applicant.

Learned counsel submits that a copy of the power of

attorney allegedly executed by late Shri Jodha Ram in favour of

late Shri Ram Narain Saini was not placed on record. However, she

would submit that in view of settled law that on expiry of the

principal, agency, i.e., the power of attorney comes to an end.

Therefore, the power of attorney , if any, issued by late Shri Jodha

Ram in favour of late Shri Ram Narain Saini also came to an end

on 24.12.2015, the date on which Shri Jodha Ram expired. With

regard to the right of Shri Ram Narain Saini in the subject

property or for that matter, right of the respondents no.2/1 to 2/9

based on the will dated 05.04.2014 allegedly executed by late hri

Jodha Ram, learned counsel submitted that its copy was not

placed on record by the applicants respondents in absence

whereof, the averments made in this regard could not have been

relied upon. She submitted that even otherwise also, as per the

contents of the application, only right to contest the litigation was

conferred vide Will dated 05.04.2014 in favour of late shri Ram

Narain Saini, which, not being transferable or inheritable, did not

confer any right on the applicants respondents no.2/1 to 2/9 to

contest the litigation as legal representatives of deceased Shri

Ram Narain Saini.

Learned counsel submitted that the learned Trial court has

erred in allowing the application without appreciating all these

important aspects of the matter and hence, the order dated

25.05.2018 cannot be sustained in the eye of law. She, therefore,

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prays that the writ petition be allowed, the impugned order dated

28.05.2018 be quashed and set aside and the application filed by

the respondents no.2/1 to 2/9 be dismissed. She, in support of

her submissions, relied upon a judgment of the Hon'ble Apex

Court of India in case of Balwant Singh Vs. Jagdish Singh and

Ors., (2010) 8 SCC 685 and a judgement of Hon'ble High Court

of Bombay in case of Mafatlal Engineering Industries

Employees Union Vs. Mumbai Mazdoor Sabha in Civil Revision

Application No.175 of 2006 decided on 13.06.2011.

Per contra, learned counsel for the respondents no.2/1 to

2/9 submitted that the order dated 28.05.2018 has been passed

by the learned trial Court appreciating that they represented

estate of the deceased. He, therefore, prays that the writ petition

be dismissed.

No submission was made by the learend counsel for the

respondent no.1.

Heard. Considered.

A perusal of the application dated 11.08.2017 filed by the

respondents no.2/1 to 2/9 seeking their impleadment as legal

representatives of the deceased Ram Narain Saini, reveals that it

lacks the bare requisite information. Although, date of death of

the applicant no.2, Shri Jodha Ram is not mentioned therein,

however, learned counsel for the respondents did not dispute that

Shri Jodha Ram had expired on 24.12.2015. In view thereof, the

application under Order 9 Rule 13 CPC stood abated qua the

applicant no.2 after the expiry of the period of 90 days thereafter.

Indisputably, neither an application for setting aside of abatement

nor, an application seeking condonation of delay was moved along

with application filed under Order 22 rule 3 read with Section 151

(6 of 8) [CW-8740/2022]

CPC nor, any such prayer was made in the application. It is also

borne out from the record that neither a copy of the power of

attorney nor, a copy of the Will was produced on record to lend

credentials to the averments made in the application. Therefore,

in absence of supportive material, the bald averments in the

application could not have been relied upon. The application also

reflects that allegedly only right to contest the litigation was

conferred on the deceased Ram Narain Saini vide Will dated

05.04.2014 and the learned counsel for respondents could not

satisfy this Court that such right was a bequeathable right and

even if it was so, it was transferable or inheritable on death of Shri

Ram Narain Saini. At this stage, learned counsel for the

respondents no.2/1 to 2/9 submits that the averments in the

application are factually incorrect and as a matter of fact, the Will

dated 05.14.2014 bequeathed rights in the subject property in

favour of the deceased Ram Narain Saini. However, this court is

not convinced as a copy of the Will was not placed on record

along with the application. In these circumstances, this court is

satisfied that the order impugned was passed by the learned trial

Court without verifying the veracity of the averments made in the

application, which otherwise also, was bereft of basic requirement

such as date of death of the original applicant no.2.

Their Lordships of the Hon'ble Apex Court in Balwant Singh

(Supra) and Others held as under:-

"16. Once the proceedings have abated, the suit essentially has to come to an end, except when the abatement is set aside and the legal representatives are ordered to be brought on record by the court of competent jurisdiction in terms of Order 22 Rule 9(3) CPC. Order 22 Rule (3) CPC contemplates that the provisions of Section 5 of the Limitation Act, 1963 shall apply to an application filed under

(7 of 8) [CW-8740/2022]

sub-rule(2) of Rule 9 of Order 22 CPC. In other words, an application for setting aside the abatement has to be treated on a par and the principles enunciated for condonation of delay under Section 5 of the Limitation Act are to apply in pari materia."

The Hon'ble High Court of Bombay in case of Mafatlal

Engineering Industries Employees union (Supra) held as

under:-

"4. In the meanwhile, on 6th October 2005 the original Defendant died. It appears that the order dated 28th October 2005 allowing amendment was passed in ignorance of the death of the original Defendant. Be that as it may, though the application for amendment was allowed, the amendment was not actually carried out in the plaint. On 3rd July 2006, advocate for the original Defendant filed a pursis at Exhibit-31 pointing out that the Defendant had died on 6th December 2005. He also filed a copy of the death certificate to show that the Defendant had died. Thereupon, by an order dated 3rd July 2006, the Court dismissed the suit as abated. It appears that in the afternoon of 3rd July 2006 the advocate for the Plaintiff appeared in the matter and by filing an application at Exhibit-32 prayed for setting aside of the order passed earlier in the morning dismissing the suit as abated. It appears that he further prayed that the Plaintiff may be allowed to amend the plaint as per the Court's previous order dated 28th October 2005. The Court, without notice to the present revision applicant who was proposed to be added by the amendment, allowed the application and permitted the Plaintiff to carry out the amendment. That order is challenged by the revision applicant (who has been added as Defendant No. 2 in the suit) by this revision application.

6. It is settled principle of law that if the heirs of a deceased Defendant are not brought on record within the statutory period of 90 days from the date of death, the suit abates automatically and no order of the Court is necessary. The Court may pass a formal order noting abatement on the death but that is in law not necessary and the suit abates automatically on expiry of statutory period of limitation. Since the Defendant died on 6th

(8 of 8) [CW-8740/2022]

October 2005, the suit automatically abated on or about 4th January 2006 on completion of the period of 90 days of the death. The first order passed by the Court below Exhibit-1 (plaint) in the morning on 3rd July 2006 was only a formal order recording the fact that the suit had abated. The original Plaintiff thereafter could have made an application for setting aside of the abatement within 60 days as provided under Article 121 of the Limitation Act. The period of limitation prescribed for making an application for setting aside of the abatement also expired on or about 3rd March 2006. Therefore, the Court could not have passed the order on 3rd July 2006 for setting aside the abatement without there being any application for condonation of delay. In any event, the Court could not have passed the order restoring the suit to file without notice to the present revision applicant who was proposed to be joined as a party under the order of amendment dated 28th October 2005 because the order certainly affects the revision applicant who claims to be in possession of the suit property."

In the aforesaid facts and in the backdrop of the law laid

down by the Hon'ble Apex Court and the Hon'ble High Court of

Bombay, the order impugned dated 25.08.2018 deserves to be

quashed and set aside and is accordingly quashed and set aside.

The writ petition is allowed accordingly.

(MAHENDAR KUMAR GOYAL),J

Chhaya Awasthi/220-223

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