Kamlesh Kumar vs Toshinder Kumar

Deepak Gupta, J.—By means of this petition the petitioner has challenged the order dated 11.06.2008 passed by the learned Civil Judge (Senior Division), Kangra, whereby the suit of the plaintiff has been dismissed qua the legal representatives of defendant No. 2 Pushpender Kumar.

Briefly stated the facts of the case are that the plaintiff filed a suit for permanent prohibitory injunction as well as for mandatory injunction against the defendants claiming himself to be in possession of the suit property. One of the defendants in the suit was Shri Pushpender Kumar. Bimla Devi was defendant No. 4 in the suit. She expired during the proceedings 2 and her legal representatives were brought on record. One of the legal representatives brought on record was one Kamal Nain. On 21st February, 2008 when the statement of Shri Kamal Nain was being recorded in Court he stated that Pushpender Kumar had died at Delhi. Thereafter, the matter was adjourned and the plaintiff was directed to take steps to bring on record the legal representatives of Shri Pushepnder Kumar.

The plaintiff could not find out the details about the date of death or about the death itself of Shri Pushpender Kumar and filed an application in the trial Court on 25th March, 2008 stating therein that Kamal Nain had got attested mutation No. 666 in his favour on the basis of a Will alleged to have been executed by Pushpender Kumar in his favour. The plaintiff alleged that in fact when he had made inquiry he was told that Pushpender Kumar was not dead. The prayer made in this application was that Kamal Nain be directed to furnish the death certificate and other details of death of Pushpender Kumar.

Kamal Nain admittedly did not produced the death certificate of Pushpender Kumar. Thereafter the case was adjourned on a number of times and counsel for Pushpender Kumar was directed to either file the death certificate of his client or to make a clear cut statement whether his client was dead or not. Finally on 3.6.2008 the learned trial Court passed the following order:

Sh. V.K. Sood, Advocate present has stated at bar that as per his information defendant No. 2 has expired.

In view of the above and in view of the revenue record i.e. copy of Jamabandi and copy of mutation No. 666 dated 26.9.2005 filed on record showing sanctioning of mutation of the estate of defendant Pushpinder in favour of defendant No. 4A Kamal Nain, it could be assumed that defendant Pushpinder has expired and that his estate has devolved upon defendant No. 4A Kamal Nain. In view of the same, application filed u/s 151 of CPC on behalf of the plaintiff is disposed of accordingly. Let necessary steps as deemed appropriate be now taken on or before 9.6.2008 and matter be put up for appropriate order.

No steps were taken by the plaintiff to bring on record the legal representatives of Pushpender Kumar and finally on 11.6.2008 the impugned order was passed, which read as follows:

Necessary steps in respect of deceased defendant No. 2 again not taken. No reasons shown for taking necessary steps in this behalf. Under these circumstances suit in respect of LRS of defendant No. 2 is dismissed. Now, to come up for entire evidence of defendants on 30.6.2008. DW Kamal Rana, whose statement had been deferred on 21.2.2008 be also produced for further cross-examination. Case is old and targeted one. Counsel for the defendants are directed to ensure the presence of the D Ws. Steps if required be taken within 2 days.

The two orders quoted above are totally contradictory. The learned trial Court has assumed that Pushpender Kumar has died and this fact was supported by statement of Shri V.K. Sood, counsel appearing for Pushpender Kumar. It also stands proved on record that the estate of Pushpender Kumar has been mutated in favour of Shri Kamal Nain. This means that the estate of Pushpender Kumar was represented before the learned trial Court. Once the estate was represented there could be no abatement or dismissal of the suit qua the estate of defendant No. 2 Pushpender Kumar. Therefore, the order dated 11.6.2008 in so far as it dismisses the suit of the plaintiff against defendant No. 2 is set-aside. It is made clear that the estate of defendant No. 2 is represented by Shri Kamal Nain.

I would, however, like to clarify that this Court has not decided the question as to who are the actual legal representatives of Shri Pushpender Kumar and in case he is dead and there are any other legal representatives, they can take appropriate steps in the matter. The petition is disposed of accordingly. No order as to costs.