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Mahabir Parshad Vs. Des Raj - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 58 of 1978
Judge
Reported inAIR1981HP58
ActsCode of Civil Procedure (CPC) , 1908 - Section 141 - Order 9, Rules 8 and 9 - Order 22, Rule 3
AppellantMahabir Parshad
RespondentDes Raj
Appellant Advocate Om Prakash Sharma, Adv.
Respondent Advocate H.K. Bhardwaj, Adv.
DispositionPetition allowed
Cases ReferredRam Kalap v. Banshi Dhar
Excerpt:
.....is only added for continuation of suit - it does not confer any title which legal representative may be possessing - petitioner allowed to join proceedings under order 9 rule 9. -..........restoration of the suit on 18-12-1976 and as this application under order 9 filed by kodu was a civil proceeding, therefore, in view of section 141, c. p. c, the provisions of civil procedure code are applicable and the present petitioner is competent to file the application and continue the proceedings in the application undes order 9 as well as the suit. on merits it was agreed by both the counsel that the order of the sub-judge, una, requires modification to the effect that in proceedings for being impleaded as a legal representative the title to the property is not to be decided. it was further, agreed that if the preliminary objection raised by the respondent is held to be not . maintainable, then in that case the order of the sub-judge should be set' aside and the present.....
Judgment:
ORDER

V.P. Gupta, J.

1. The petitioner has challenged the order dated 31-3-1978 passed by the Sub-Judge, Una on an application under Order 22, Rule 3 of Code of Civil Procedure (hereinafter called the Code), filed by the present petitioner.

2. The brief facts are that Kodu alias Izzat Rai son of Krishan Dass filed a suit for declaration and injunction and also in the alternative for possession of the land detailed in the plaint in the Court of Sub-Judge, Una on 6-11-1970, against Des Raj respondent The defendant contested the suit and this suit was fixed for 5-12-1976 for defendant's evidence. On 5-12-1976 the plaintiff or his counsel did not appear in Court and as such the suit was dismissed in default by the Sub-Judge, Una.

3. Application foe restoration of the suit was filed by the plaintiff Kodu on 18-12-1976 and it was alleged that on 5-12-1976, due to illness he could not appear in person and also could not bring his counsel from Hoshiarpur for conducting the case. Notice of this application wa' issued to the defendant/respondent. In the meantime the plaintiff Kodu died, with the result the present petitioner claiming himself lo be a legal representative of deceased Kodu filed an application under Order 22, Rule 3, C. P, C. for being impleaded as a party on the allegations that Kodu plaintiff had died on 10-1-1977. This application was filed on 1-2-1977 by the present petitioner. The defendant-respondent contested this application and on the pleadings of the parties the following issues were framed on 18-5-1977:

1. Whether the applicant Mahabir Parshad is the legal representative of the deceased Kodu as alleged?

2. Whether there are other legal representatives of the deceased Kodu also. If so what effect?

3. Relief.

4. After recording the evidence of the parties the learned Sub-Judge dismissed the application. Now the present petitioner has filed this revision petition.

5. I have heard Mr. Om Prakash Sharma counsel for the petitioner and Mr. H. K. Bhardwaj, counsel for the respondent.

6. The learned counsel for the respondent raised a preliminary objection, to the effect that the application under Order 22, Rule 3, Civil P. C. filed by the petitioner is not maintainable, because the original plaintiff Kodu had died on 10-1-1977 and the application was filed by the present petitioner on 1-2-1977, when no suit was pending in the Court. The petitioner's counsel contended that Kodu had himself filed the application for restoration of the suit on 18-12-1976 and as this application under Order 9 filed by Kodu was a civil proceeding, therefore, in view of Section 141, C. P. C, the provisions of Civil Procedure Code are applicable and the present petitioner is competent to file the application and continue the proceedings in the application undes Order 9 as well as the suit. On merits it was agreed by both the counsel that the order of the Sub-Judge, Una, requires modification to the effect that in proceedings for being impleaded as a legal representative the title to the property is not to be decided. It was further, agreed that if the preliminary objection raised by the respondent is held to be not . maintainable, then in that case the order of the Sub-Judge should be set' aside and the present petitioner may be allowed to take part in the proceedings as legal representative of deceased Kodu, for the purpose of the continuance of the application under Order 9 of the suit and that this impleading of the present petitioner as a legal representative shall not in any manner effect the title of the parties on the basis of the Will or the adoption.

7. In view of the above contentions of the learned counsel for the parties, the only point which requires adjudication in the present revision petition is 'whether the application for impleading the petitioner as a legal representative of deceased Kodu, in an application under Order 9 is maintainable or not'.

7 A. Section 141 of C. P. C. reads as follows :

'141. Miscellaneous proceedings -

'The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction.' (Explanation : In this section, the expression 'proceedings' includes proceedings under Order 9 but does not include any proceeding under Art. 226 of the Constitution.)'

8. It may be mentioned that the Explanation in Section 141 was inserted by the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976) (hereinafter called as Act of 1976) which came into force from 1-2-1977. Prior to the Act No. 104 of 1976, the Explanation was not available in the original Section 141, C P. C.

Order 22, Rule 3, C. P. C. reads as follows :

'Rule 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 sue survives, the Court, on an application made 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.' It is clear from the provisions of Order 22, Rule 3 that the provisions of this rule are applicable in the case of a death of plaintiff/plaintiffs which is only possible during the pendency of the suit.

9. Under the provisions of Section 141, Civil P. C. mentioned above, the provisions of C. P. C. in regard to suits have to be followed as far as they can be made applicable in all proceedings in any Court of Civil Jurisdiction.

10. Now the only point for consideration is as to whether the proceedings under Order 9, Rule 9 started by Kodu deceased can be termed as 'proceedings' in a Court of Civil Jurisdiction. If the application under Order 9 filed by Kodu deceased can be treated to be a 'proceeding' in Court of Civil Jurisdiction then the procedure of Order 22 can be made applicable. The provisions of Section 141 even prior to the Act of 1976 were very wide and the same were to be made applicable to all proceedings in a Court of Civil! Jurisdiction. An application under Order 9, Rule 9 filed by the original plaintiff after the dismissal of his suit under Order 9, Rule 8 of the C. P. C. is an application which lies in a Court of Civil Jurisdiction and is provided by the Code. Such an application under Order 9 cannot be termed to be a suit, but as it arises out of the dismissal of a civil suit in a Civil Court, therefore, this application will be deemed to be a civil proceeding in the suit. If this is the position, then the provisions of Order 22, C. P. C. for impleading the legal representatives can be made applicable, even before the amendment in Section 141, C. P. C. by Act of 1976. The contention of the learned counsel for the defendant-respondent that if the provisions were applicable then the explanation would not have been added by Act of 1976, has no substance in view of the fact that by the insertion of the Explanation in Section 141 by the Legislature has only explained the word 'proceedings'. By addition of this Explanation the matter is made further clear that after applicability of Act of 1976, the provisions of Order 9 have been specifically included in the meaning of the words 'civil proceedings'. Prior to this amendment there might have been some doubts and the Legislature thought it fit to clarify this doubt, by adding the explanation. It does not, howerer, appeal to reason that if explanation had not been inserted then an application under Order 9, C. P. C. could not be treated as a civil proceeding. No such restriction is indicated in the phraseology of Section 141 of the Code. For these reasons the other contention of the respondent's counsel that the provisions of amended Section 141 are prospective and not retrospective is also without any force. It is correct that under Section 97 of Act of 1976 the provisions of Section 47 of Act of 1976, by which the Explanation was added in Section 141, C. P. C. have not been made retrospective and it is specifically provided that this amendment shall not effect the proceedings which were pending immediately before the commencement of Section 47 of Act of 1976. I am of the view that even if Explanation had not been added still under Section 141, C. P. C. the proceedings under Order 9 could be considered as 'civil proceedings'. In Ram Chandra Aggarwal v. State of U. P., AIR 1966 SC 1888, it has been held by their Lordships in para 6 :

'The next contention--and it was the one pressed strenuously by him--was that a proceeding upon a reference under Section 146 (1) entertained by a Civil Court not being an original proceeding the provisions of Section 141, C. P. C. are not attracted and that, therefore, those provisions of the Civil Procedure Code which relate to suits are not applicable to a proceeding undertaken by a Civil Court upon a reference to it under Section 146(1) of the Code of Criminal Procedure. A number of cases dealing with this point were brought to our notice either by him or by Mr. Goyal. It seems to us, however, that those cases are not relevant for deciding the point which is before us. In passing, however, we may mention the fact that a Full Bench of the Allahabad High Court has held in Maha Ram v. Harbans, ILR (1941) All 193 : (AIR 1941 All 101) (FB), that the Civil Court to which an issue on the question of proprietary rights has been submitted by a Revenue Court under Section 271 of the Agra Tenancy Act, 1926 has jurisdiction to refer the issue to arbitration under para 1 of Sch. II of the C. P. C. This decision is based upon the view that by virtue of Section 141, C. P. C. the provisions relating to arbitration contained in the second Schedule to the Code of Civil Procedure, before the repeal of that schedule, applied to a proceeding of this kind. Similarly recently this Court has held in Munshi Ram v. Banwari Lal, AIR 1962 SC 903, that under Section 41 of the Arbitration Act and also under Section 141, C. P. C. it was competent to the Court before which an award made by an Arbitration Tribunal is filed for passing a decree in terms thereof to permit parties to compromise their dispute under Order 23, Rule 3, C. P, C. Though there is no discussion, this Court had acted upon the view that the expression 'civil proceeding' in Section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian etc., but that it applies also to a proceeding which is not an original proceeding. Thus, though we say that it is not necessary to consider in this case whether the proceeding before the Civil Court is a civil proceeding as contemplated by Section 141 or not, there is good authority for saying that it is a civil proceeding.'

In Nathu Prasad v. Singhai Kapurchand, AIR 1976 Madh Pra 136, a Full Bench of Madhya Pradesh held that the proceedings under Order 9, Rule 9 are 'civil proceedings'. In para 8 of the Judgment it was held as follows :

'Now, an application under Order 9, Rule 9, Civil P. C. is a proceeding in a Court of Civil Jurisdiction. We see no reason why the procedure provided in regard to suih cannot be made applicable to a proceeding under Order 9, Rule 9. There is no justification to read any such restrictive words in Section 141. The section is in general terms and the expression 'as far as it can be made applicable' provides for the extent to which ths section can be applied to a civil proceeding other than a suit. The expression 'all proceedings' is of a very wide connotation and to restrict it to a proceeding, which is original in nature and wholly independent of a suit will be doing violence to the language of the section.

When a suit, which is dismissed for non-appearance of the plaintiff can be restored on satisfying the Court that the plaintiff was prevented by some sufficient cause from appearing before the Court, there is no reason why, when an application under Order 9, Rule 9, is likewise dismissed for non-appearance of the applicant, the latter should be denied an opportunity to satisfy the Court that he was prevented by reason of sufficient cause from appearing before the Court, when his application was called on for hearing. The object and purpose of Section 141 is that for economy of words, it was unnecessary to repeat the whole of the procedure in providing for procedure for an application or any other proceeding original or ancillary. An application under Order 9, Rule 9, Civil P. C., is not an interlocutory application. It is different from an application made in a pending suit. By its nature, an application under Order 9, Rule 9, is an independent application and is registered as ' an independent misc. judicial case.' In Bhajan Singh v. Ganeshi Devi, AIR 1978 Punj & Har 257, an application under Order 9, Rule 9 wai also held to be a 'civil proceeding'. While interpreting Section 141 of the Code, it was held (at p. 258) :

'The provisions of the section are very wide in their amplitude and there is no reason why any restricted meaning should be attached to them in the absence of any indication to that effect in the language employed. An application under Order 9, Rule 9 of the Code is certainly being a proceeding in a Court of Civil Jurisdiction find, therefore, the procedure provided in the Code in regard to suits has to be followed in respect thereof. In other words, if an application of that type is dismissed for default, the procedure available to the aggrieved party would be the same as is open to a plaintiff when nil suit is dismissed for default,'

11. In view of the above discussion the preliminary objection of the defendant-respondent is overruled and it is held that an application of the petitioner for being mi-pleaded ai legal representative is maintainable.

12. On merits of the application, the lower Court has given very elaborate decision on the two issues which had been framed and after discussion it has been held that the present petitioner is not entitled to be impleaded as legal representative because petitioner has not been validly adopted by Kodu and that Kodu was incapable of adopting petitioner. This discussion of (he Trial Court is not warranted. It is held in Suraj Mani v. Kishori Lal, AIR 1976 Him Pra 74 (at p. 75) that :

'The definition of 'legal representative' in Section 2 (11) of the Code of Civil Procedure is very wide. It will certainly include a person who seeks to represent the estate of a deceased person on the basis of a Will said to be executed by the deceased in his favour. The estate will be sufficiently repre-sented by such a person. The learned Senior Subordinate Judge acted within his jurisdiction in substituting the respondent as the legal representative of the deceased. The substitution does not make the legal representative heir to the property of the deceased. It was pointed out by the Lahore High Court in Daulat Ram v. Mt Meero, AIR 1941 Lah 142, in a case where the legal representative of a deceased plaintiff was brought on the record, that a decision to do so under Order 22, Rule 5 must be limited to the purpose of carrying on the suit and cannot have the effect of conferring any right to heirship or to the property. Even if the learned Senior Subordinate Judge has held that the Will relied on by the respondent is a valid Will, that finding had been rendered merely for the purpose of enabling the prosecution of the suit to go on. It cannot be construed as a decision on the merits of the suit. The finding that the Will is valid cannot operate as res judicata where that very question needs to be decided in order to resolve the controversy in the suit on its merits. I am supported in this view by Parsotam Rao v. Jankibai, (1906) ILR 28 All 109; Antu Rai v. Ram Kinkar Rai, ILR 58 All 734 : (AIR 1936 All 412) and Chiragh Din v. Dilwar Khan, AIR 1934 Lah 465. It was held by the Allahabad High Court in Ram Kalap v. Banshi Dhar, AIR 1958 All 573, that an order under Order 22, Rule 5 involves a summary enquiry as to who should be substituted in place of the deceased party in the pending proceeding and that such a decision does not operate as res judicata. It is still open to the petitioner in the present case, during the trial of the suii, to establish that the Win is incompetent and confers no right, title and interest on the respondent and that, therefore, the respondent is not entitled to any relief in the suit.'

Thus a legal representative is only to be added for continuation of the suit and it does not confer any title or decide any title which the said legal representative may be possessing. The parties counsel have frankly conceded that the decision with respect to the factum of adoption or the Will is not to be given and the present order of the trial Court is liable to be set aside. It was agreed by the parties that the present petitioner be allowed to join as legal representative of the deceased Kodu in the proceedings under Order 9, Rule 9, C. P. C.

13. In view of the above discussion the present revision petition is accepted and the order of the Sub-Judge is set aside. The petitioner is ordered to be impleaded as legal representative of deceased Kodu in the application under Order 9, Rule 9, C. P. C. which should be decided on merits. The parties are directed to appear in the Court of Sub-Judge on 26th May, 1981.


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