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2022 Supreme(Raj) 2679
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
Rekha Borana, J.
Raju Ram & Ors. – Appellant
Versus
Jetharam & Ors. – Respondent
S.B. Civil First Appeal No. 423 of 2022
Decided On : 13-12-2022
Amit Mehta, Advocate
The provisions of Order XXII Rule 4, CPC do not apply to a person who has expired 14 years prior to the filing of the suit.
Headnote:
Order XXII Rule 4, CPC - Suit against Dead Person - The court dismissed the suit filed against a dead person on the ground that the provisions of Order XXII Rule 4, CPC would not be applicable to a person who has expired 14 years prior to the filing of the suit.
Fact of the Case:
The trial court dismissed the suit filed against a dead person, and the appeal against this decision was also dismissed.
Finding of the Court:
The court found that the suit was filed against a dead person, and therefore, the provisions of Order XXII Rule 4, CPC could not have applied. The appeal was dismissed, but the appellants were allowed to file a fresh suit for the relief sought in the present suit.
Issues: Dismissal of suit filed against a dead person, applicability of Order XXII Rule 4, CPC, and the right to file a fresh suit.
Ratio Decidendi: The court held that the provisions of Order XXII Rule 4, CPC would not be applicable to a person who has expired 14 years prior to the filing of the suit, and therefore, the dismissal of the suit was justified.
Final Decision: The appeal against the dismissal of the suit was also dismissed, but the appellants were allowed to file a fresh suit for the relief sought.
JUDGMENT
Rekha Borana, J. - The present regular first appeal has been filed against the impugned order dated 27.07.2022 whereby the suit of the plaintiffs itself was dismissed on the ground that the same was filed against a dead person and therefore, the provisions of Order XXII Rule 4, CPC would not be applicable to the person who has expired 14 years prior to the filing of the suit itself. While deciding the application under Order XXII Rule 4, CPC, the trial Court rejected the application and simultaneously, dismissed the suit itself. Aggrieved against the same, the present appeal has been filed.
2. Learned counsel for the appellants submitted that the rejection of the suit itself by the trial Court is bad as the counsel could have been accorded an opportunity to withdraw the suit in the said circumstances. The same having not been done and the suit itself been dismissed on the same date while deciding the application under Order XXII Rule 4, CPC cannot be held to be tenable.
3. It is clear and admitted on record that the suit was filed against a dead person and therefore, the provisions of Order XXII Rule 4, CPC could not have applied.
4. In view of the fact that there is no illegality in the order dated 27.07.2022, the present appeal is also dismissed. However, the dismissal of the suit in question and the present appeal at the first stage itself would not come in the way of the appellants-plaintiffs of filing a fresh suit for the relief as prayed for in the present suit.
5. The stay petition also stands dismissed.
