Bhagwan Singh vs Kalu

J.M. Tandon, J.—Bhagwan Singh, Plaintiff-Appellant, and Kallu, Defendant-Respondent (now deceased are residents of village Tankri, tehsil Rewari, district Gurgaon, where they own residental houses. The location of their houses is shown in the plan Exhibit P.W. 1/1. There is a passage leading to the house of Bhagwan Singh which passes in front of the house of Kallu. Kallu constructed a Chabutra on a part of the open space in front of his house, shown as R. 2, R. 3, R. 4 and R. 10 and dug foundation in the remaining open space shown as R. 1, R. 8, R. 9 and R. 4 in the plan Exhibit P.W. 1/1. Bhagwan Singh, feeling aggrieved by this construction, filed a suit for mandatory injunction against Kallu, alleging therein that the open space in front of the house of Kallu, over which the Chabutra has been constructed and the boundary wall was proposed to be constructed, was part of a thoroughfare leading to his house and, therefore, Kallu had no right to raise the construction. This suit was decreed by Shri (Jaspal Singh, Subordinate Judge 1st Class, Rewari vide order dated October 15, 1966, and a permanent injunction was issued against Kallu Defendant restraining him from making any construction in the portion marked R. 1, R.. 8, R. 9 and R. 4 and further directing him to demolish the Chabutra marked R. 2, R. 3, R. 4 and R. 10 in the plan Exhibit P.W. 1/1. Aggrieved against that decree, Kallu filed an appeal and the same was disposed of by the learned Additional District Judge, Gurgaon vide order dated November 24, 1987. The learned lower appellate Court maintained the decree of the trial Court to the extent that Kallu Defendant will not make any construction on the site shown by letters R. 4, R. 9, R. 8 and R. 11. The claim of Bhagwan Singh Plaintiff regarding the remaining part of the site including the Chabutra marked R. 2, R. 3, R. 4 and R. 10 was disallowed and as such the decree of the trial Court to that extent was set aside. It is against this order that the present appeal is directed by Bhagwan Singh.

Kallu Defendant Respondent died about nine months back and his legal representatives have not been brought on the record. No application has been moved for impleading them as party to the litigation. Under these circumstances, Shri D. C. Ahluwalia, Advocate, who represented Kallu during his lifetime, was desired to appear amicus curiae.

Shri Ahluwalia has argued that since no application was moved for impleading the legal representatives of the sole Defendant-Respondent Kallu within limitation, the suit of the Appellant shall abate under Order 22, Rule 4(3), CPC (hereinafter referred to as the Code). The learned Counsel for the Appellant has contended that in view of the amendment made by the High Court of Punjab and Haryana, whereby Sub-rule (3) of Rule 4 of Order 22, was substituted, the suit of the Appellant shall not abate. Order 22, Rule 4(3), reads as under:

Where within the time limited by law no application'' is made under Sub-rule (1), the suit shall abate as against the deceased Defendant.

The High Court of Punjab and Haryana inserted Rules 2-A and 2-B after the existing Rule 2 of Order 22 and also substituted Sub-rule (3) to Rule 4 of Order 22 by amendment made,-vide Notification No. G.S.R. 27/C.A. 5/1908/S. 127/75, dated March 17, 1975. Rules 2-A, 2-B and Sub-rule (3) to Rule 4 of Order 22, as amended, read as under:

2-A. Every Advocate appearing in a case who becomes aware of the death 6f a party to the litigation (whether he appeared for him or not) must give intimation about the death of that party to, the Court and to the person who is dominus litis.

2-B. The duty to bring on record the, legal representatives of the deceased-Defendant shall be of the heirs of the deceased and not of the person who is dominus litis.

4(3) Where within the time limited by law no application is made under Sub-rule (1) the suit shall not abate as against the deceased-Defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.

Shri D. C. Ahluwalia has argued that the amendment made by the High Court of Punjab and Haryana in 1975, whereby Sub-rule (3) to Rule 4 of Order 22 was substituted, shall cease to have force after the coming into force of the new CPC with effect from February 1, 1977. The reason advanced is that the High Courts can make only such rules u/s 122 of the Code which are not inconsistent with the provisions in its body, as provided in Sub-section (1) of Section 128 of the Code. This contention has no force. The amendment made by the High Court of Punjab and Haryana in March, 1975, substituting Sub-rule (3) to Rule 4 of Order 22 of the Code is surely not inconsistent with the provisions contained in the body of the Code and u/s 157, the rules made under the old Code, continue to remain in force provided they are consistent with the present Code. There can be no manner of doubt that the amendment made by the High Court of Punjab and Haryana in March, 1975, can be given effect to even under the present Code. It means that the amendment made to March, l975, is not in-conairtent with the provisions contained in the body of the present Code. It is, therefore, clear that the enforcement of the present Code with effect from February 1, 1977, would not adversely affect the validity of the amendment made by the High Court of Punjab and Haryana in March, 1975, adding Rules 2-A and 2-B after Rule 2 of Order 22 and substituting Sub-rule (3) to Rule 4 thereof.

In the result, I hold that the death of Kallu Defendant-Respondent shall not abate the present appeal.

Coming to the merits of the case, so far as the claim of Bhagwan Singh Appellant regarding the portion marked R. 4, R. 9, R. 8 and R. 11 is concerned it stands upheld by the learned first lower appellate Court as well. In these proceedings the dispute is about the remaining portion marked R. 1, R. 3, R. 4 and R. 11. The learned trial Court gave a finding about this portion on the basis of copy of registered sale-deed Exhibit P.W. 2/1 by which Kallu purchased his house from Satwan and Smt. Ashrafi in 1936. It is the same house in front of which the vacant site in dispute is situated and over a part of which Kallu has constructed a Chabutra. This vacant site is in the east of house of Kallu. In the copy of the sale deed Exhibit P.W. 2/1, a thoroughfare is shown in the east of the house purchased by Kallu. If this copy of the sale deed is to be relied upon, it would be clear that the vacant site in the east of the house was a thoroughfare. Kallu purchased the property which was owned by Satwan and Smt. Ashrafi. The vacant site in the east of the house which was described as a thoroughfare was not owned by the vendors. This document substantially supports the claim of Bhagwan Singh Appellant that the disputed site R. 1, R. 3, R. 4 and R. 11 is part of a thoroughfare. The learned lower appellate Court declined to rely upon this document on the ground that it was a copy of the sale deed and being a secondary evidence could not be admitted into evidence without summoning the original one and seeking the permission of the Court to lead secondary evidence. The learned Counsel for the Appellant has argued that the approach of the learned lower appellate Court was erroneous inasmuch as the copy of the sale-deed Exhibit P.W. 2/1 was admitted by the learned Counsel for Kallu in the trial Court and as such it could be admitted into evidence forthwith without summoning the original one and seeking the permission of the Court to lead secondary evidence. The copy of the sale deed Exhibit P.W.2/1 does contain a note in the hand of the learned Counsel (for Kallu in the trial Court admitting it. I agree with the learned Counsel for the Appellant that after the copy of the sale deed had been admitted by the learned Counsel for Kallu, there was no necessity to summon the original sale-deed and to seek the permission of the Court to lead secondary evidence to make it admissible in evidence. After it was admitted by the learned Counsel for Kallu, it could be admitted into evidence forthwith and it was done in the instant case. The learned lower appellate Court erred in not placing reliance on the copy of the sale-deed Exhibit P.W. 2/1.

As observed above, the copy of the sale-deed Exhibit P.W. 2/1 clearly supports the case of the Appellant that the vacant site in the east of the house purchased by Kallu was a thorough fare. The claim of the Appellant that the vacant site marked R. 1, R. 3, R. 4 and R. 11 in the east of the house of Kallu being a thoroughfare was therefore, wrongly declined by the learned lower appellate Court.

In view of the above discussion, I accept this appeal and setting aside the judgment and decree of the learned lower appellate Court restore the judgment and decree of the learned trial Court dated October 15, 1966, in toto. The parties are, however, left to bear their own costs throughout.