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2025 Supreme(HP) 77
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
BIPIN CHANDER NEGI, J.
Sanjay Sood - Petitioner
Versus
Iqbal Sandhu & Ors. - Respondents
Civil Revision No. 47 of 2022
Decided On : 09-04-2025
For the Petitioner:Mr. G.C. Gupta, Sr. Advocate with Mr. Deepak Gupta.
For the Respondents:Mr. Sudhir Thakur, Sr. Advocate with Mr. Karun Negi.
IMPORTANT POINT
A proforma defendant against whom no relief is claimed is an unnecessary party, and their death does not result in abatement of the suit.
Headnote:
(A) Civil Procedure Code, 1908 - Order 22 Rule 4 - Quashing of order - Application for dismissal of suit due to abatement after death of proforma defendant dismissed - Court allowed exemption from bringing on record legal representatives of deceased proforma defendant, as no relief claimed against him - Death of proforma party does not result in abatement when no relief is claimed against them. (Paras 1 - 12 )
(B) Proforma defendants - Status of proforma defendants in a suit - A proforma defendant against whom no relief is claimed is considered an unnecessary party, and their death does not affect the suit's continuation. (Paras 6 , 12 )
(C) Legal representatives - Requirement to bring legal representatives on record - Exemption from this requirement can be granted if the deceased party is not a necessary party to the suit. (Paras 6 , 12 )
Facts of the case:
The petition was filed to quash an order dismissing an application for suit dismissal due to the death of a proforma defendant, who was not a necessary party as no relief was claimed against him. The trial court allowed exemption for the plaintiffs from bringing the legal representatives of the deceased on record.
Findings of Court:
The trial court's reasoning was upheld, confirming that the death of a proforma defendant does not lead to abatement of the suit when no relief is claimed against them.
Issues: The main issues addressed were whether the death of a proforma defendant leads to abatement of the suit and the necessity of bringing legal representatives on record.
Ratio Decidendi: The court found that a proforma defendant, against whom no relief is claimed, is an unnecessary party, and their death does not affect the suit's continuation.
Result: Petition dismissed.
JUDGMENT :
Bipin Chander Negi, J.
The present petition has been filed, seeking quashing of order dated 05.03.2022 passed by the Court of Civil Judge (Sr. Division), Solan in CMA No.1878 of 2021, whereby an application filed under Order 22 Rule 4 CPC by the present petitioner (defendant No.1) for dismissing the suit on account of abatement after the death of proforma defendant No.3 (Gurbax Singh) before the trial Court, has been dismissed and an application filed under Order 22 Rule 4 CPC for exempting respondents No.1 and 2 (plaintiffs) from bringing on record the LRs of deceased proforma defendant No.3(Gurbax Singh), has been allowed.
2. Heard counsel for the parties and perused the pleadings.
3. That respondents No.1 and 2 are the plaintiffs before the trial Court. They had filed a suit for permanent prohibitory and mandatory injunction. The relief therein was only claimed against the present petitioner i.e. defendant No.1. No relief was claimed against proforma defendants No.2 and 3 before the trial Court.
4. The suit, in the case at hand, was filed on 06.04.2009. Notice in the suit was served on the present petitioner (defendant No.1) and proforma defendants No.2 and 3 before the trial Court for 20.08.2009. No written statement was filed on behalf of proforma defendants No.2 and 3. They had not contested the present suit, as no relief was claimed against them.
5. Proforma defendant No.3 had died on 29.04.2010. An application for exemption from substituting the legal heirs of deceased proforma defendant No.3 (Gurbax Singh) was filed in March 2021. Per contra, an application for dismissing the suit on account of abatement having taken place as a result of death of proforma defendant No.3 (Gurbax Singh) was filed under Order 22 Rule 4 of the Civil Procedure Code by the present petitioner (Defendant No.1).
6. In the aforesaid facts and attending circumstances, the trial Court had allowed the application under Order 22 Rule 4(4) CPC for exempting the present respondents No.1 and 2 (plaintiffs) from bringing on record the LRs of deceased proforma defendant No.3 (Gurbax Singh). As according to the trial Court, the said proforma defendant was a proper party, no specific relief was being claimed against the said proforma defendant.
7. Exemption being granted by the Court in terms of Order 22 Rule 4(4) CPC is to be obtained before judgment is delivered and not after it. In this regard, reference can be made to Civil Appeal No.1259 of 2009, titled T. Ganavel Vs. T.S. Kanagaraj & Ors.
8. Other than the aforesaid, no fault can be found with the reasoning given by the trial Court insofar as it holds that the death of a proforma party against whom no relief was being claimed would not result in any abatement. In this respect, reference can be made to case reported as Mangal Singh v. Rattno, (1967) 3 SCR 454 : AIR 1967 SC 1786, wherein the plaintiff, Smt. Harnam Kaur, had come forward with the allegation that she had been dispossessed by all the four Defendants 1 to 4, Ishar Singh, Defendant 4, in his written statement, repudiated this claim. He put forward the plea that he had not dispossessed the plaintiff and, further, supported the claim of the plaintiff by pleading that there had been no karewa marriage between them. The suit was dismissed by the trial court. It was decreed by the first appellate Court only against Defendants 1 to 3, treating Ishar Singh as a proforma defendant.
9. An application to bring on record legal representatives of Ishar Singh, Defendant 4 was dismissed by the order of the Apex Court dated 14th September, 1965 in Civil Miscellaneous Petition No. 1589 of 1965. In view of this order, a preliminary objection was raised at the time of hearing of the appeal by learned counsel for the respondents, who had been impleaded as legal representatives of Smt. Rattno, that the appeal had abated on account of the failure of the appellants to implead the legal representatives of Ishar Singh respondent. The question raised was negative
