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Brij Lal and ors. Vs. Vijay Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 253 of 1978
Judge
Reported inAIR1979P& H192
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 4
AppellantBrij Lal and ors.
RespondentVijay Kumar and ors.
Cases ReferredKeso Ram v. Gopal Singh
Excerpt:
.....lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 10, 1972, that the suit was bad for multifariousness and all the causes of action joined in the single suit could not be conveniently tried. in jowala singh prem singh's case (supra), the suit of the plaintiffs was dismissed on the ground that the civil court had no jurisdiction and their appeal to the district judge also failed. the plea of the petitioner regarding the abatement of the suit of vijay kumar cannot succeed for this reason as well......in the suit. ram chander died on nov. 20, 1974, and dalip singh on july 30, 1976. their legal representatives were not impleaded in revisional proceedings. after the revision had been accepted and the file returned to the trial court with a direction to proceed with the suit, vijay kumar moved an application on july 26, 1977, for impleading their legal representatives in the suit. the proposed legal representatives of the deceased as also the remaining defendants opposed the application alleging that the suit had abated and it may be dismissed as such. the trial court vide order dated oct. 31, 1977, has held that the suit has not abated and for this reliance has been placed on jowala singh prem singh v. malkan nasirpur, air 1958 pun 171. it has also been held that in view of.....
Judgment:
ORDER

1. Vijay Kumar respondent No. 1 filed a suit in forma pauperis for possession of three sets of properties Comprising agricultural land and two double storey shops alleging that they belonged to the joint Hindu family of 'Which he and his father (Maman Chand) were members and the latter had made the alienations thereof without consideration and legal necessity and the same were not binding on him. On a preliminary Objection raised, the trial court held vide order dated Nov. 10, 1972, that the Suit was bad for multifariousness and all the causes of action joined in the single suit could not be conveniently tried. Vijay Kumar was directed to amend the plaint and to continue the suit only in respect of any one of the three sets of properties. Vijay Kumar preferred a revision against the order of the trial court which was admitted and the Proceedings in the trial court were stayed. The revision was allowed on Feb. 24,1977. The order of the trial court dated Oct. 10, 1972, was set aside and a direction was issued to proceed with the suit.

2. Ram Chander and Dalip Singh were impleaded as defendants Nos. 3 and 14 respectively in the suit. Ram Chander died on Nov. 20, 1974, and Dalip Singh on July 30, 1976. Their legal representatives were not impleaded in revisional proceedings. After the revision had been accepted and the file returned to the trial court with a direction to proceed with the suit, Vijay Kumar moved an application on July 26, 1977, for impleading their legal representatives in the suit. The proposed legal representatives of the deceased as also the remaining defendants opposed the application alleging that the suit had abated and it may be dismissed as such. The trial court vide Order dated Oct. 31, 1977, has held that the suit has not abated and for this reliance has been placed on Jowala Singh Prem Singh v. Malkan Nasirpur, AIR 1958 Pun 171. It has also been held that in view of the fact that more than one cause of action are being tried in the suit, the question of abatement of the suit in entirety does not arise. The legal representatives of the deceased defendants were accordingly ordered to be impleaded as defendants, it is against this order that the present revision is directed.

3. The contention of the learned counsel for the petitioners is that the ratio of Jowala Singh Prem Singh's case (supra), has been wrongly made applicable to the instant case. In Jowala Singh Prem Singh's case (supra), the suit of the plaintiffs was dismissed on the ground that the Civil Court had no jurisdiction and their appeal to the District Judge also failed. The plaintiffs preferred a revision which was accepted by the High Court and the case was remanded to the trial court for disposal. One of the defendants died in the meantime. This fact was not brought to the notice of the High Court when the revision was argued. On remand it was contended before the trial court on behalf of the defendants that there had been an abatement of the revision petition. The trial court did not agree. It was held that there, was no question of abatement in case of a revision. The son of the deceased defendant was allowed to be added as a defendant. The defendants preferred a revision against the order of the trial court. It was held that ordinarily the provisions of Order 22 govern the case of abatement during the pendency of the suit. This principle has been extended expressly by R. 11 of Order 22 to the case of appeals but there is no mention of its applicability to the revisions. This is a case in which the maxim inclusio unius est exclusio alterius should apply and by restricting the application of the rule of abatement expressly to suits and appeals, the intention of the legislature was to exclude from its purview cases arising from proceedings in revision.

4. The argument of the learned counsel for the petitioners is that in Jowala Singh Prem Singh's case (AIR 1958 Punj 171) (supra), the suit of the plaintiffs had been dismissed by the trial court and this order was upheld by the appellate court with the result that no suit was pending in the trial court or the appellate court during the pendency of the revision before the High Court. In the present case, the suit of Vijay Kumar was not dismissed by the trial court vide Order dated Nov. 10, 1972. He was directed to amend the plaint and to continue the suit only in respect of any one of the three sets of properties. The suit of Vijay Kumar was, therefore, pending during the pendency of the revision before the High Court against the order of the trial court dated Nov. 10, 1972. The distinction sought to be made by the learned counsel for the petitioners hardly advances their case. In Jowala Singh Prem Singh's case (supra), it has been found that the provisions of O. 22 govern the case of abatement during the pendency of the suit. The point for consideration is whether the suit of Vijay Kumar could be taken as pending during the period the revision was pending in the High Court and further proceedings in the trial court had been stayed. In Venkat Narsimhan Reddy v. Konda Reddy, AIR 1951 Hyd 55, a similar situation arose. It was held that the provisions of law contained in O. 22, Rr. 4 and 11 which require a substitution of legal representative of deceased party within a limited period of time, contemplate pending proceedings. Where the defendants in the suit go in revision against interlocutory orders in the suit, the suit cannot be said to be pending in the original court and, therefore, no question of substitution of legal representatives of the deceased would arise in the original court. Where, therefore, one of the applicants in revision dies during the pendency of the revision and his name is struck off and the revision allowed in respect of the remaining applicants, and the case gent back to the original Court for trial on merits, an application for substitution of the legal representatives of the deceased is maintainable in the original Court within reasonable time. In such a case, no question of limitation entailing abatement can arise. Venkat Narsimhan Reddy's case (supra), was followed in Keso Ram v. Gopal Singh, (1967) 69 Pun LR 454. In this case, the suit filed by the plaintiff for recovery of money on the basis of pronotes was stayed to enable the plaintiff money lender to obtain a licence under the Pepsu Money Lenders Act. During the period the suit was stayed, the sole defendant. the debtor died. The creditor obtained the requisite licence some time later, and made an application for restoration of the suit along with an application for impleading the legal representatives of the deceased debtor. It was held that O. 22 of the Civil P. C. contemplates an application in a pending proceeding. When no proceedings are pending, there is no paint of making an application. The need for an application to implead the legal representatives of the defendant would arise when the suit could be revived.

5. In View Of the ratio of the authorities cited above, it is evident that the suit of Vijay Kumar shall not be taken as pending in the context of O. 22, R. 4, Civil P. C. during the pendency of revision in the High Court against the order of the trial court dated Nov. 10, 1972, wherein the proceedings in the trial court, had been stayed. The question of abatement of the suit, therefore, does not arise.

6. Order 22, Rule 4 of the Civil P. C. has been amended by this High Court vide Notification dated April 11, 1975. The effect of the amendment is that the legal representatives, of a deceased defendant have been made responsible for getting themselves impleaded as defendants. The revision against the order of the trial court dated Nov. 10, 1972, was accepted on Feb. 24, 1977. The proceedings in the suit shall, therefore, be deemed to have been revived with effect from that date. In view of the amended Order 22, R. 4 it was the duty of the legal representatives of the deceased defendants Nos. 3 and 14 to get themselves impleaded as defendants. The plea of the petitioner regarding the abatement of the suit of Vijay Kumar cannot succeed for this reason as well.

In the result, the revision fails and is dismissed with no order as to costs.

7. Revision dismissed.


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