HI GH COURT OF UTTARAKHAND AT NAI NI TAL HON’BLE SRI JUSTICE MANOJ KUMAR TIWARI Writ Petition Misc. Single No. 1809 of 2022

20 June, 2025 Sachin Thakur --Petitioner Versus Hare Krishan Tourism Development Limited --Respondent with Writ Petition Misc. Single No. 1814 of 2022 Sachin Thakur --Petitioner Versus Hare Krishan Tourism Development Limited --Respondent Writ Petition Misc. Single No. 1815 of 2022 Sachin Thakur --Petitioner Versus Hare Krishan Tourism Development Limited --Respondent -------------------------------------------------------------------

Presence:-

Mr. Neeraj Garg, Advocate for the petitioner.

Mr. Vikas Bahuguna, Advocate for the respondent.

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JUDGMENT

Since common questions of law and fact are involved in these writ petitions, therefore they are heard together and are being decided by a common judgment. However, for the sake of brevity, facts of Writ Petition (M/S) No. 1809 of 2022 alone are being considered and discussed.

2. Respondent filed a suit for specific performance of an agreement to sell, against Smt. Mithilesh Madhukar, on 15.09.2020, which was registered as Original Suit No. 28 of 2020 in the Court of Senior Civil Judge, New Tehri. Learned Trial Court directed for issuance of summons to the defendant, fixing 14.10.2020. The summon, however, returned unserved with the remark that ‘defendant is no more alive’.

3. The plaintiff (respondent herein) then moved application under Order 22 Rule 2 & 4 read with Order 6 Rule 17 and Section 151 CPC, for substituting legal representative of sole defendant. Notice on the application was issued to legal representative of late Mithilesh Madhukar, who was proposed to be substituted.

4. Despite service of notice, legal representative of late Mithilesh Madhukar did not enter appearance. Learned Trial Court allowed the substitution application, vide order dated 18.11.2021 and the plaintiff was directed to carry out necessary amendment in the plaint within three days and summons were directed to be issued to the substituted defendant (petitioner).

5. Petitioner entered appearance and moved application under Section 151 CPC for dismissal of suit on the ground that it was filed against a dead person, inasmuch as, the sole defendant Smt. Mithilesh Madhukar passed away before filing the suit, on

25.08.2020.

6. Plaintiff contended before the Trial Court that he had no information regarding death of Smt. Mithilesh Madhukar (defendant), and as soon as he learnt about her death, he moved application for substituting legal representative of sole defendant; it was the petitioner who executed the agreement to sell in favour of the plaintiff, as power of attorney holder of his mother.

7. Learned Trial Court rejected the application for dismissal of the suit made by petitioner by holding that there is no evidence on record to show that plaintiff had knowledge about death of sole defendant before filing of the suit.

8. Petitioner has challenged the orders passed by Trial Court, whereby substitution application was allowed and his application for dismissal of the suit was rejected.

9. Learned counsel for petitioner submits that the application made by respondent under Order 22 Rule 2 & 4 CPC was not maintainable, as the sole defendant had died before filing of the suit, thus, learned Trial Court was not justified in rejecting petitioner’s application for dismissal of the suit, vide order dated 12.07.2022.

10. There cannot be any quarrel with the proposition that if one of the defendants has expired prior to filing of the suit, legal representatives of such deceased defendant cannot be brought on record by invoking Order 22 Rule 4 CPC. However, due to non- mentioning of correct provision, parties should not be made to suffer, if power to add legal representatives of a deceased defendant can be traced to some other provision in CPC.

11. In the case of Pankajbhai Rameshbhai Zalavadiya v. Jethabhai Kalabhai Zalavadiya (Deceased) throug