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2016 Supreme(J&K) 36
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mohammad Yaqoob Mir, J.
Anil Sharma and Ors. – Petitioners
Vs.
Darshan Lal and Ors. – Respondents
C. Rev. No. 100, 101 of 2009, MP No. 104, 105 of 2009
Decided On : 4-3-2016
For the Petitioners:Mr. Dinesh Verma, Advocate.
For the Respondents:Mr. Subhash Makhnotra, Advocate.
The main legal point established in the judgment is the importance of adhering to the provisions of Order 22 Rule 4 CPC and the Limitation Act in cases involving abatement and substitution of legal heirs.
Headnote:
Abatement - Substitution of Legal Heirs - Order 22 Rule 4 CPC - Sections 3, 4, and 5 of the Limitation Act, 1963
Fact of the Case:
The suits involved the issue of abatement due to the death of a defendant and the subsequent substitution of legal heirs. The plaintiff sought to declare a gift deed as null and void and claimed a right of prior purchase.
Finding of the Court:
The court found that the trial court had erred in not considering the provisions of Order 22 Rule 4 CPC and the Limitation Act, and had dismissed the applications for abatement without proper examination.
Issues: The main issue was the abatement of the suits due to the death of a defendant and the subsequent substitution of legal heirs. The court also highlighted the lack of application of mind by the trial court, leading to unnecessary delay in the proceedings.
Ratio Decidendi: The court held that the trial court failed to properly apply the provisions of Order 22 Rule 4 CPC and the Limitation Act, and emphasized the need for complete control over the proceedings to avoid unnecessary delays.
Final Decision: The revision petitions were allowed, and the orders of the trial court were set aside. The trial court was directed to decide the applications for abatement afresh after hearing both parties and to ensure the presence of the parties before the court.
Mohammad Yaqoob Mir, J.
These Revision petitions are directed against the orders dated 05.06.2009 passed by the trail court (Munsiff, Akhnoor) in two suits captioned:
(i) Durga Dass v. Anil Sharma.
(ii) Durga Dass v. Krishan Lal.
2. Two separate applications filed in the said two suits seeking dismissal of the suits on the count of having abated for want of substitution of legal heirs of deceased (defendant No. 4 therein).
3. For appreciating the controversy in its right perspective, it shall be advantageous to notice precisely the factual background which has given rise to the Lis and to the consequential orders impugned.
4. One-Parkasho Devi (defendant No. 4 in both the two suits) had sold land measuring 3 kanal and 14 marlas covered by Survey No. 915 min situated at Village Gurha Brahmana, Tehsil Akhnoor vide Sale Deed dated 28.03.2005 in favour of Anil Sharma and Sushil Sharma (defendants No. 1 and 2 in Suit No. 1) who in turn on 01.07.2005 executed a Gift Deed for the same land in favour of their mother Smt. Vishno Devi (defendant No. 3).
5. Same deceased Parkasho Devi (defendant No. 4) in Suit No. 2 had sold land measuring 4 kanal covered by Survey No. 915 min, khata No. 160 min situated at Village Gurha Brahmana vide Sale Deed executed on 23.03.2005 in favour of Shri Krishan Lal who in turn gifted the same to his two sons Shri Anil Verma and Shri Sushil Sharma (defendants 1 and 2).
6. Plaintiff (Durga Dass who is now deceased) claimed that Parkasho Devi deceased (defendant No. 4) is the co-owner, therefore, he has a right of prior purchase. On such basis has instituted two suits seeking Gift deed to be declared as ‘null and void’ and also right of prior purchase.
7. During pendency of the said two suits, defendant No. 4-Parkasho Devi died. Death certificate has been placed on record as is clear from the interim orders recorded by the trial Court on 23.05.2007 in both the two suits.
8. Shri Shiv Kumar S/o Durga Dass-plaintiff claimed to be an adopted son of Parkasho Devi and has filed written statement. Issues had been framed. When preliminary issue was to be argued, the defendants 1 to 3 filed two separate applications in both the two suits praying for dismissal of the suits as having abated. But learned trial Court has rejected the applications on the ground that Shri Shiv Kumar had filed written statement in both the two suits and has been contesting. No one has raised objection. Dis-satisfied with the order passed separately in both the suits dated 05.06.2009, instant revision petitions have been filed.
9. The contention of the petitioners-revisionists is that fact of death of defendant No. 4-Parkasho Devi was brought to the notice of the court on 23.05.2007 when death certificate was placed on record revealing that the defendant No. 4 has died on 26.02.2007
10. Plaintiff was required to file an application for substitution under Order 22 Rule 4 within a period of six months the period prescribed under Limitation Act. Default in filing any such application attracts Order 22 Rule 4 (Sub Rule 3) CPC which provides that, where within the time limit by law, no application is made under Sub Rule 1, the suit shall abate as against the deceased defendant if interests are divisible and in case indivisible then as a whole.
11. Learned Trial Court without looking into the Sub Rule 4 of Order 22 CPC and ignoring non-filing of application for substitution observed that Shri Shiv Kumar as legal representative has filed the written statement.
12. Perusal of the trial Court record reveals that on behalf of Shri Shiv Kumar, power of attorney has been filed by the advocate on 10.01.2008 Same has been entertained even though Shri Shiv Kumar was not substituted as party in place of defendant No. 4 then he has filed written statement on 16.02.2008 The trial Court record further reveals that a photo-copy of the adoption deed, ‘alleged to have been executed by defendant No. 4-Parkasho Devi showing Shri Shiv Kumar to have been adopted by her i
