Judgment

Mr. Sanjay Vashisth, J.

Present revision petition is directed against the order dated 15.11.2017, passed by the Court of Civil Judge (Jr. Divn.), Ludhiana, whereby, suit qua defendant No.1 – Sarwan Singh (now deceased), has been dismissed on account of non-impleadment of legal representative(s) of defendant No.1.

2. Petitioners (hereinafter referred to as ‘plaintiffs’) instituted a suit for possession as owner by way of specific performance of the agreement to sell dated 06.08.1990, in respect of a plot measuring 600 sq. yards, comprised in Khasra No.890/2 as per Jamabandi for the year 2009-10, situated at Mundian Kalan and now known as Jeewan Nagar, Street No.21, Phase-III, Focal Point, Tehsil and District Ludhiana.

3. Said suit was instituted against (i) Sarwan Singh; (ii) Harjinder Singh, both sons of Gurnam Singh, resident of Mundian Kalan, Tehsil and District Ludhiana; and (iii) Kamal Parkash s/o Sardar Singh. Thus, defendants No.1 & 2 are the real brothers and residents of the same village.

4. During the pendency of suit, defendant No.1 – Sarwan Singh died on 15.01.2016, but no application by anyone had been moved for bringing on record the legal representatives (in short ‘L.Rs.’) of said defendant No.1 – Sarwan Singh. Factum of death of said Sarwan Singh, was brought to the notice of the Court by way of a death certificate of defendant No.1, which was placed on record as Ex.A1, and in the written statement filed by defendant No.2 also, factum of death of defendant No.1 finds a mention. After going through the pleadings of all the parties appearing before the Court, Ld. Trial Court framed issues in the suit vide its order dated 15.11.2017, however, in the first part of the order, suit qua defendant No.1 was dismissed. The operative part of said order is reproduced herein-below:-

“Present: Mr. Surinder Dogra, Adv., counsel for the plaintiffs.

Ms. Suniana Anand, Adv., counsel for defendant no.2.

Mr. N.K. Jadav, Adv., counsel for the defendant no.3.

Suit qua defendant no.1 dismissed, vide order dated 15.11.2017.

Perusal of file reveals that on 29.02.2016, Ms. Alka, Advocate for defendant no.2 stated that defendant no.1 had expired on 15.01.2016. She also placed on record death certificate of defendant no.1 as Ex-A1. The said fact is also disclosed in written statement of defendant no.2 but neither plaintiffs nor defendants moved any application for impleading LRs of defendant no.1 as party. As such, the suit qua defendants no.1 stands dismissed.”

5. Learned counsel for the petitioners (representing plaintiffs before the trial Court) contends that order dated 15.11.2017, to the extent of dismissing the suit filed by the plaintiffs qua defendant No.1 is against the provision of law. Counsel addresses that bare reading of Order XXII Rule 4 of Code of Civil Procedure (CPC) is required to be gone through. Basic principle of Order XXII Rule 4 CPC is reproduced herein-below:-

“ORDER XXII

Death, Marriage and Insolvency of Parties

1. xx xxx xx xxx

2. xx xxx xx xxx

3. xx xxx xx xxx

4. Procedure in case of death of one of several defendants or of sole defendant.—

(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendants to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law n