[229+115] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO-1784-2023 (O&M)

Date of Decision : 02.07.2025 Ramesh Chand Goyal and another …Appellants versus Sant Lal and others ….Respondents Coram : HON’BLE MR. JUSTICE PANKAJ JAIN Present: Mr. Shailendra Jain, Senior Advocate with Mr. Rahul, Advocate and Mr. Munish Sharma, Advocate for the appellants.

Dr. Anmol Rattan Sidhu, Senior Advocate with Mr. Jashandeep Singh Bains, Advocate Mr. H.S. Rajput, Advocate and Mr. Gurpreet Singh, Advocate for respondent Nos.1 to 3 & 11.

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PANKAJ JAIN, J. (ORAL)

[1] The appeal is directed against order dated 12.04.2023 whereby the Appellate Court in an application seeking setting aside ex parte judgment and decree dated 24.12.2021 preferred by legal representatives of defendant No.6-Janaki Dass in the original suit ordered that the legal representatives of Janki Dass should establish the status as legal representatives by filing a separate suit.

[2] Plaintiffs-respondents filed a suit seeking declaration to the effect that they have become owners being in possession as occupancy tenants. Janaki Dass was impleaded as defendant No.6. Janaki Dass was proceeded against ex parte. Suit was dismissed by the Court of the first instance. In appeal preferred by the plaintiffs, Janaki Dass was not served invoking Order XLI Rule 14 CPC. Suit was finally decreed vide judgment and decree dated 24.12.2021 passed by District Judge, Hisar.

[3] The plaintiff-respondent Nos.1 to 3 being the legal representatives of Janaki Dass filed an application seeking setting aside of the ex parte judgment and decree dated 24.12.2021, claiming that Janaki Dass died on 17.12.1968 and even his son namely Madhu Sudan died on 11.12.1990 and thus, it is a case where the suit was filed against dead person and ex parte decree was obtained without there being proper procedure followed. It is on the said application that the Lower Appellate Court which passed the decree in appeal made the following observations relegating the plaintiffs to file a separate suit to first establish their status as legal heirs of defendant Nos.5 & 6:-

“10. Admittedly, a judgment and decree dated 24.12.2021 has been passed by my learned Predecessor in a suit titled Sant Lal etc. Vs. Ram Dulari etc. after setting aside the judgment and decree of learned trial court. Now no proceedings of any kind is pending before this court. The applicants have filed the present applications claiming themselves to be the legal heirs of defendant no. 5 Banwari Lal and defendant no. 6 Janki Dass, on the basis of some photostat documents. All these documents are photostats and pertaining to different places. The documents relied upon by the applicants Chameli Devi, Sachin, Subhash, Anil and Sunil pertain to one Banarsi Dass and not defendant no. 5 Banwari Lal. On the other hand, the plaintiffs-appellants have also filed some documents in which it appears that till the year 2010, deceased Janki Dass was alive and one Mukesh son of Ram Parkash is the only legal heir of deceased Janki Dass. For setting aside the exparte judgment and RAJNEESH SHARMA decree, the applicants firstly proved themselves to be the legal heirs of defendants no. 5 and 6 by leading cogent and convincing evidence. I have perused order 22 Rule 5. Order 22 Rule 5 is applicable at appellate stage only when some appeal or other proceedings are pending and the question of determination of legal representatives arises. But in the present case, neither the appeal nor any other proceedings are pending or going on before this Appellate court. It is a matter of evidence whether the applicants are the legal heirs of defendants no. 5 and 6, so without determining the question of legal heirs, a legal judgment and decree cannot be set aside because in the present controversy, it is a disputed fact that the applicants are the legal heirs of defendants no. 5 and 6. The appropriate remedy to the applicants is to approach the Civil Court for declaring the impugned judgme