2016 Supreme(Raj) 1583
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Banwari Lal Sharma, J.
Bhanwar Devendra Singh - Appellant
Versus
M/s. Meenakshi Projects Ltd. and Ors. - Respondent
S.B. Civil Revision Petition Nos. 59-60 of 2011.
Decided On : 11-07-2016
Advocates:
For the Petitioner:Mr. Kamalkar Sharma, Senior Advocate with Mr. Asad Ali, Advocate.
For the Respondent/Plaintiff:Mr. Sudhanshu Kasliwal, Senior Counsel with Ms. S. Kasliwal, Advocate.
The step-mother and brother of a deceased defendant can be considered legal representatives under Section 2(11) of the C.P.C. if they are inter-meddlers with the estate of the deceased, and a suit does not abate if the legal representatives are already on record.
Headnote:
ABATEMENT OF SUIT - LEGAL REPRESENTATIVE - INTER-MEDDLER - STEP-MOTHER AND BROTHER OF DECEASED - ORDER 22, RULE 4 C.P.C. - SUIT DOES NOT ABATE IF LEGAL REPRESENTATIVE IS ALREADY ON RECORD.
Fact of the Case:
Petitioners challenged the dismissal of their applications under Order 22, Rule 4 (3) C.P.C., seeking to abate a suit for specific performance of contract on the ground that the legal representatives of a deceased defendant were not brought on record. The deceased defendant's step-mother and brother, who were co-sharers of the suit property, were already on record as defendants.
Finding of the Court:
The court held that the step-mother and brother of the deceased defendant were legal representatives as defined under Section 2(11) of the C.P.C., as they were inter-meddlers with the estate of the deceased. The court further held that the suit could not abate as the right to sue survived against the remaining defendants, who were the step-mother and brother of the deceased defendant.
Issues: 1. Whether the step-mother and brother of the deceased defendant were legal representatives as defined under Section 2(11) of the C.P.C.? 2. Whether the suit could abate if the legal representatives of the deceased defendant were already on record?
Ratio Decidendi: 1. The court interpreted the definition of "legal representative" under Section 2(11) of the C.P.C., which includes persons who inter-meddle with the estate of the deceased. The court held that the step-mother and brother of the deceased defendant, who were co-sharers of the suit property, were inter-meddlers with the estate and therefore legal representatives. 2. The court referred to Order 22, Rule 4(1) of the C.P.C., which provides that a suit can abate only when the right to sue does not survive against the remaining defendants. The court held that in the present case, the right to sue survived against the remaining defendants, who were the step-mother and brother of the deceased defendant, and therefore the suit could not abate.
Final Decision: The court dismissed the revision petitions, upholding the dismissal of the applications under Order 22, Rule 4 (3) C.P.C., and holding that the suit did not abate as the legal representatives of the deceased defendant were already on record.
JUDGMENT
1. - Petitioner/defendant Bhanwar Devendra Singh and petitioner/substituted defendant Smt. Kusum Kumari assailed the impugned order dated 21.12.2009 passed by learned Additional District Judge No. 4, Jaipur city Jaipur in Civil Regular Suit No. 152/2006 (241/1992) whereby learned Court below dismissed the applications submitted by petitioners Bhanwar Devendra and Smt. Kusum Kumari under Order 22, Rule 4 (3) C.P.C. dated 8.9.2009 and 15.9.2009 respectively.
2. Since the applications of petitioners dated 8.9.2009 and 15.9.2009 decided by common impugned order dated 21.12.2009 and revisions were filed separately by petitioners Bhanwar Devendra Singh and Smt. Kusum Kumari, therefore both revisions are heard today and are being decided by this common order.
3. The brief facts of the case are that a suit for specific performance of contract is pending against the petitioners along with other defendants. During pendency of suit defendant No. (3) Surya Vijay Singh expired on 8.11.2003. Petitioner Bhanwar Devendra Singh filed an application under Order 22, Rule 4 (3) C.P.C. and petitioner/substituted defendant No. 1/1 Smt. Kusum Kumari filed another application under Order 22, Rule 4 (3) C.P.C. on 15.9.2009 stating therein that defendant No. (3) Suiya Vijay Singh expired on 8.11.2003 but no steps were taken for bringing on record his legal representatives.
4. It is further stated that defendant No. (3) Surya Vijay Singh was son of divorced wife of Shri Sangram Singh and Smt. Daulat Kumari. Therefore, Daulat Kumari natural mother is only Class I heir of Surya Vijay Singh as per Hindu Succession Act.
5. Smt. Daulat Kumari is alive but no steps were taken for bringing her on record. Therefore, the whole suit has been abated, therefore, same may be dismissed.
6. While filing reply to the applications plaintiffs stated that after death of defendant No. (1) Sangram Singh, his legal representative Smt. Kusum Kumari has already been taken on record as defendant No. 1/1 and amended cause title has already been filed in this regard on 25.3.1995.
7. Since, the LR of defendant No. (3) Surya Vijay Singh is already thereon record, therefore, suit cannot be abated. This Court in the matter of S.B. Civil Misc. Appeal No. 279/1998 called for the record of the suit wherein defendant No. 2 filed an application on 4.11.2004 stating therein that defendant No. 3 Surya Vijay Singh has expired on 8.11.2003. Therefore, the appeal is abated.
8. The application was replied by the defendants wherein it was stated that mother of defendant No. (3) Smt. Kusum Kumari is already there on record as respondent No. 1/1. Therefore, appeal cannot be abated.
9. After hearing the application dated 27.11.2004 was dismissed by the Co-ordinate Bench of this Court vide order dated 13.5.2005. In view of its also the application may be dismissed.
10. Learned Trial Court after hearing both the parties dismissed the application of petitioners vide impugned order dated 21.12.2009 hence these revision petitions.
11. Shri Kamalkar Sharma learned Senior Counsel appearing on behalf of petitioners submits that Ms. Kusum Kumari is step mother of deceased Surya Vijay Singh and Smt. Daulat Kumari is natural mother of Surya Vijay Singh. Smt. Daulat Kumari was divorced by the father of Surya Vijay Singh long back and is residing separately who is alive and is Class I heir of deceased Surya Vijay Singh. No steps were taken for bringing her on record as legal representative of deceased Surya Vijay Singh, therefore, the whole suit is abated. Learned Court below without considering this fact wrongly rejected the applications, therefore impugned order may be quashed and set aside.
12. Per contra Shri Sudhanshu Kasliwal learned Senior Advocate appearing on behalf of respondent plaintiffs submits that legal representative is defined in Section 2(11) of C.P.C. that means the person who in law represents the estate of a deceased person, and includes person, who inter-meddles with the estate of deceased.
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