Trial court cannot dismiss application under Order XXII Rule 4 CPC hyper-technically for omitted date of death or incomplete legal representatives list; must ascertain facts, implead missing parties and allow curing defects for justice.

Judgment :

Ajay Mohan Goel, J.

As despite service, none has put in appearance on behalf of respondent No.1(h), accordingly, said respondent is ordered to be proceeded against exparte.

2. By way of this petition, the petitioner has assailed order dated 13.12.2016, passed by learned Civil Judge (Jr. Divn.), in Civil Suit No. 276/2013, titled Chain Singh & anr. Vs. Dharm Singh & Ors., in terms whereof, the application filed under Order XXII, Rule 4 of the CIVIL PROCEDURE CODE (hereinafter referred to as ‘CPC’) by the present petitioners/plaintiffs to bring on record the legal representatives of deceased defendant No.1, was dismissed. The impugned order reads as under:-

“Today, reply to application U/O 22, Rule-4 of CPC also filed by ld. Counsel for defendant No.5.

Heard. Record perused.

This order shall disposed off an application U/O 22, Rule-4 of CPC for impleading the Lrs of deceased defendant No.1(Dharam Singh) in the present case. From the perusal of Para No. 3 of reply filed by Ld. Counsel Sh. H.S. Katoch on behalf of Lrs of deceased defendant No.1 and also on behalf of defendant No.4, it appears that Savitri Devi is also the Legal Heir of deceased defendant No.1(Dharam Singh), but this fact is not disclosed by the plaintiffs in their application nor prayed for impleading name of Savitri Devi as LR of deceased defendant No.1(Dharam Singh). Even this fact has not been rebutted by the plaintiffs by filing rejoinder of reply. Therefore, it appears that list of Lrs mentioned in application is defective and all Lrs are not shown in the application. Moreover, neither any date of death of defendant No.1(Dharam Singh) has been mentioned defendants/that in the application nor any death certificate has been attached and the stated application is time barred. Time of death is also disputed by the replying defendants and onus to prove that defendant No.1(Dharam Singh) has been died within 90 days prior to the date of filing of this application was upon the plaintiffs. But as stated above neither death certificate has been attached nor any date of death has been mentioned in the present application. Even no till date reason/explanation for non disclosing date of death is shown by the plaintiffs, whereas the present application was filed in the year-2013. Hence, aforesaid observations shows that plaintiffs have intentionally concealed material facts from this Court in the present application and has not approached this Court with clean hands. No relief can be granted to the plaintiffs in these circumstances. Aforesaid conduct of the plaintiffs also shows that plaintiffs have failed to prove that defendant No.1(Dharam Singh) was died within 90 days prior to filing of this application and hence, application is time barred also.

In view of this, present application filed by the applicant U/O 22, Rule-4 of PC is dismissed, which be tagged with main case file, after its due completion/registration.”

3. Learned counsel for the petitioner submitted that the application was filed to bring on record the legal representatives of deceased defendant No.1, within 90 days as from the date of death of Sh. Dharam Singh. He submitted that though the date of death of Sh. Dharam Singh was not mentioned in the application, but it was mentioned therein that Sh. Dharam Singh had died two months prior to the filing of the application. He has also drawn the attention of the Court to Annexure P-6, appended with this petition, which is the death certificate of Sh. Dharam Singh, in terms whereof, the date of death of Sh. Dharam Singh is 21.05.2013. The application filed under Order XXII, Rule 4 of the CPC is on record as Annexure P-2 and the same is