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2017 Supreme(Jhk) 1460
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Aparesh Kr. Singh, J.
Rawel Kaur and Others – Appellants
Versus
Sardar Manjeet Singh Bagga and Others – Respondents
F.A. No. 117 of 1986 with Misc. Appeal No. 81 of 1986
Decided On : 07-12-2017
For the Appellants : M/s Rahul Kr. Gupta, Shailendra Kr. Singh.
For the Respondents: M/s V. Shivnath, Kundan Ambastha.
Headnote:Code of Civil Procedure, 1908 - Order XXII, Rules 4(4) and 11 and Section 153 - the present case deals for exemption of deceased for which prayer was made - petitioner filed suit for partition , respondent also contested for the same - court can exercise the vested powers to them for avoiding abetment of suit in the absence of any compelling reason now here through all this the plaintiff can get exemption on substituting deceased LRs - in such a case the power can be exercised by either of the trial court or appellate court or high court - the deceased of respondent did not filed any suit further the order was changed.
Summary: The case concerns a partition suit where several respondents, who are descendants of the original party, died during the pendency of the appeal. Many of these respondents did not contest the suit or file written statements, and some were considered non-contesting defendants. The appellants sought exemption from the requirement to substitute the legal heirs of the deceased respondents under Order 22, Rule 4(4) of the Civil Procedure Code, arguing that such non-contesting respondents are on the same footing as defendants who did not contest the suit. The court examined whether the appeal should be dismissed due to abatement or whether exemption from substitution could be granted to expedite proceedings. The court acknowledged that the law permits exemption from substitution for non-contesting defendants to avoid unnecessary delay, and this power can be exercised at the appellate level. While the exemption was granted for some deceased respondents, it was denied for others, notably respondent no. 31(g), due to prior orders recognizing her as a necessary party. The court also emphasized that improper attempts to delete deceased respondents' names, rather than seek exemption, were misconceived, and accordingly, modified previous orders to allow exemption with costs, rejecting the plea for total abatement of the appeal.
Operative Part: The court granted exemption from the requirement to substitute the legal heirs of deceased respondents who did not contest the suit, specifically for respondent nos. 6 to 8, 11 to 13, 15, 21, and 27. However, exemption was not granted for respondent no. 31(g), as she was considered a necessary party. The court also modified earlier orders to correct procedural errors, imposing costs on the appellants for the misconceived deletion of certain respondents' names. The prayer for complete abatement of the appeal due to the death of some respondents was rejected.
1. The short question which arises for determination in the instant appeal, at this stage, is whether the appeal stands abated in toto on the death of some of the respondents who were non-contesting during the trial of the Suit (filed by the plaintiffs/contesting respondents seeking 1/9th share upon partition of the entire suit property) or whether the prayer of the contesting defendants/appellants herein for exemption of the deceased respondents under Order 22, Rule 4(4) of the Code of Civil Procedure deserves to be allowed.
2. Few bare relevant material facts need to be stated at the outset. Plaintiffs, who were the descendents from the daughter of Sardar Ram Singh, claimed 1/9th share in the suit properties described in the plaint upon partition. Contesting defendants who are the appellants herein and other co-defendants except defendant no. 31 were the sons or descendents of such sons from late Sardar Ram Singh. Defendant No. 31 was the daughter of Sardar Ram Singh but she also did not file a written statement, though she deposed during the trial in favour of the defendants. Contesting defendants/appellants and some other defendants did file written statements. However, it is not in dispute that the present issue deals with cases of such defendants/respondents herein i.e. respondent nos. 6 to 8, 11 to 13, 15, 21 and 27 who had not filed written statements during the trial. Respondent No. 31 had earlier been substituted by order passed on 13.11.1992 which reads as under:
"So far respondent no. 31 is concerned, no doubt, she is necessary party to the appeal, but her deposition read in the court shows that she had received Rs. 15,000/- (rupees fifteen thousand) only in lieu of her share in the property and that she had no interest in the property earned by her father. Although, the evidence is sub-judice in this Court, but the fact remains that she had admittedly received the said amount. Having regard to such admission, she cannot be treated to have same interest in the property as her appellant brother has. I am persuaded of this fact for ignoring the delay in filing the substitution petition."
3. Legal heirs of the deceased respondent no. 31 were substituted accordingly as respondent nos. 31 (a) to (g). Though respondent no. 31 (g) has died but rest of the legal heirs of respondent no. 31 are on record.
4. The contesting respondents through I.A. No. 3671/2011 reported the death of respondent no. 8 in the year 2005, respondent no. 11 about five years ago and respondent no. 27 as on 31.1.2008. The appellants in their wisdom sought deletion of the names of certain deceased respondents through I.A. No. 2361/2012 which was allowed vide order dated 21.2.2013 however in respect of respondent nos. 5, 6, 7 and 8. The appellants thereafter filed I.A. No. 1237/2013 seeking modification of the order dated 21.2.2013 passed in I.A. No. 2361/2012, as according to them, they had prayed for deletion of all the deceased defendants/ respondents mentioned in para-3 of the said I.A. though the deletion was allowed only in respect of respondent nos. 5 to 8. That I.A. is still pending. The contesting respondent nos. 1, 2 and 3 thereafter filed I.A. Nos. 569/2015, 570/2015 and 571/2015 seeking a declaration that the entire appeal has abated on the death of the respondent nos. 11 and 27, 13 and 31 (g) and 5 to 8 respectively in the three interlocutory applications. The appellants furnished a consolidated reply to the three interlocutory applications contesting the claim of abatement of appeal. These interlocutory applications remained pending.
5. Learned counsel for the appellants, however, on a preceding date i.e. 13.7.2017 made a prayer to move an appropriate application under Order 22 of the Civil Procedure Code. Thereafter, I.A. No. 6133 of 2017 has been preferred under Order 22, Rule 4(4) read with Sections 151, 152 and 153 of the Civil Procedure Code, 1908 seeking exemption from substituting the legal heirs/respondents of un-contesting def
