Uttarakhand High Court
Charanjeet Singh (Male) ... vs Pyara Singh on 5 March, 2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No.533 of 2021 (M/S)
Charanjeet Singh (Male) ...Defendant No.1/Petitioner
Vs.
Pyara Singh
S/o Makkhan Singh ...Plaintiff/Respondent
Advocate : Mr. Siddhartha Singh, Advocate for the petitioner.
Hon'ble Sharad Kumar Sharma, J.
Order 22 Rule 6 of the C.P.C. reads as under:-
"6. No abatement by reason of death after
hearing.-Notwithstanding anything contained in the
foregoing rules, whether the cause of action survives
or not, there shall be no abatement by reason of the
death of either party between the conclusion of the
hearing and the pronouncing of the judgment, but
judgment may in such case be pronounced
notwithstanding the death and shall have the same
force and effect as if it had been pronounced before
the death took place."
2. The precise facts, which entails consideration in the
present case is that the petitioner before this Court is a defendant
no.1; in a suit for cancellation of sale deed, which was instituted
by the respondent herein and that to a sale deed, which was
executed by defendant no.2 to the suit; in favour of defendant
no.1 on 01.04.2004.
3. During the pendency of the suit, the defendant no.2,
had met with the sad demise and consequently, the trial court
decided the aspect of abatement of suit by an order of
04.12.2020, holding thereof that after divesting of a right by the
seller i.e. defendant no.2, (now deceased) to the purchaser
defendant 1, petitioner herein, if at all the cause of action survives
or the rights prevailed to be enforced or protected would be qua
the defendant no.1, only, and that is the appellants. Hence, by
drawing its implications from the provisions contained under
Order 22 Rule 6 of C.P.C., the trial court decided the aspect on
04.12.2020, abating the suit qua defendant no.2 only.
4. On the contrary, the argument of the
petitioner/defendant no.1, the purchaser, from defendant no.2,
who died on 21.02.2020; is from the prospective that the
challenge given to the sale deed in the suit in question, he is
interpreting that the challenge to the sale deed it had a joint cause
of action of the plaintiff, qua defendant no.2 and defendant no.1
also, and hence, as a consequence of death of the defendant no.2,
the case of petitioner/defendant no.1 the purchaser, was that the
seller, there cannot be a bifurcation of the cause of action by still
continuing with the suit qua defendant no.1, the
purchaser/petitioner/defendant no.1 herein, since as per the
argument extended by the counsel for the petitioner, the cause of
action, if it fails in its totality and it was an indivisible right and
cause of action. If the simplicitor language of Order 22 Order 6 of
C.P.C. is taken into consideration, if the plaintiff chooses his
defendants in suit, may be a suit for cancellation of sale deed also
and in an eventuality of a death of any one of the defendant, the
suit would only abate qua the deceased/defendant and not as a
whole. The logic behind it is that merely, the interpretation given
that the cause of action was challenged to a sale deed is an
inadvisable rights would in fact be determined after the purchase
made by defendant no.1 from the deceased/defendant no.2, since
all right, title has been vested in defendant no.1/petitioner, the
cause survived against him to continue with the suit.
5. The cause of action would in all logical
interpretation, would be confined to the defendant no.1 i.e. the
petitioner only as the defendant no.2 after having sold the
property and his rights to defendant no.1; would be deemed to
have lost his interest to contest the suit for cancellation of the sale
deed. Thus, the view taken by the courts below of abating the suit
qua the deceased/defendant no.2, only, does not suffer from any
apparent error, which calls for any interference under Article 227
of the Constitution of India. But having said so and since I have
already observed that all rights over the subject matter i.e.
property in question, which was conveyed by the sale deed by
defendant no.2 in favour of defendant no.1, the petitioner, herein,
it goes without saying that he still has got all right of defence to
be agitated in the suit itself, including the stand, which was taken
by defendant no.2, which is still directed to be continued and held
not to have been abated qua defendant no.1, the petitioner. Thus,
reserving the rights of the petitioner/defendant no.1 to raise all
the contentions, which he wants to agitate qua the sale deed,
which has been put to challenge, I decline to exercise my
jurisdiction under Article 227 of the Constitution of India.
6. The writ petition is dismissed.
(Sharad Kumar Sharma, J.)
05.03.2021
Arti/
