Pyari Devi and Others vs Bagga Ram and Others

Piar Singh Rana, J.—1. Present application is filed under Order XVIII Rule 17 read with Section 151 CPC on behalf of legal heirs of deceased co-defendant No. 2 for recalling plaintiffs Bagga Ram and others witnesses for cross examination by legal heirs of co-defendant No. 2.

Brief facts of the case:

Plaintiffs Bagga Ram and others sought relief of decree for possession by way of specific performance of agreement dated 19.3.2005. Plaintiffs sought relief that defendants be directed to execute sale deed qua suit property. Plaintiffs also sought relief of decree of permanent prohibitory injunction restraining defendants from selling, transferring, alienating suit property in any manner. Plaintiffs also sought relief restraining defendants from changing nature of suit land either themselves or through their relatives, servants authorized legal representatives.

Written statement filed on behalf of co-defendants No. 1 to 5 pleaded therein that time was essence of the contract and plaintiffs failed to perform their part of the agreement and plaintiffs are not entitled for discretionary relief of specific performance. It is further pleaded that amount of Rs. 60 lacs received by attorney on behalf of defendants No. 1 to 5 stood forfeited as per terms of agreement. It is further pleaded that co-defendants No. 1 to 5 are not bound by the agreement executed through general attorney. It is further pleaded that co-defendant No. 6 was not agriculturist and power of attorney executed in his favour was against the provisions of HP Tenancy and Land Reforms Act. It is further pleaded that general attorney was dead when present civil suit was filed by plaintiffs.

Co-defendant No. 2 namely Mohan Singh @ Man Singh died on 13.9.2012 and applicants were impleaded as legal heirs of deceased co-defendant No. 2 in civil suit No. 22 of 2006 on 24.4.2015. Thereafter applicants filed application for recalling Bagga Ram and other witnesses for the purpose of cross examination by legal heirs.

Non-applicants filed response pleaded therein that when the case was fixed for plaintiffs evidence on 29.11.2013 then co-defendant No. 1 Liaq Ram who is real brother of deceased Mohan Singh @ Man Singh did not inform the factum of death of co-defendant No. 2 to plaintiffs or to Court. It is further pleaded that contesting co-defendants did not discharge their legal obligations as mentioned under Order XXII Rule 10-A CPC. Prayer for dismissal of OMP No. 267 of 2015 sought.

Court heard learned Advocate appearing on behalf of parties at length and also perused entire record carefully.

Following points arise for determination in present application:

"1. Whether application filed under Order XVIII Rule 17 read with Section 151 CPC is liable to be accepted as mentioned in memorandum of grounds of application.?

Final order."

Findings upon point No. 1 with reasons:

Submission of learned Advocate appearing on behalf of applicants that application filed under Order XVIII Rule 17 read with section 151 CPC be allowed is decided accordingly for the reasons hereinafter mentioned. It is proved on record that PW1 Bagga Ram plaintiff and PW2 Parma Nand were examined on 29.11.2013 in civil suit No. 22 of 2006. It is proved on record that when PW1 Bagga Ram and PW2 Parma Nand were examined in Court in civil suit No. 22 of 2006 at that time co-defendant No. 2 Mohan Singh @ Man Singh was dead. It is proved on record that when PW1 Bagga Ram and PW2 Parma Nand were examined in civil suit No. 22 of 2006 at that time legal heirs of co-defendant No. 2 Mohan Singh @ Man Singh were not impleaded as co-party in Civil Suit No. 22 of 2006.

It is well settled law that any evidence recorded in judicial proceedings after death of co-party and without impleading L.Rs of deceased defendant could not be used against legal heirs unless opportunity of cross-examination is not given to legal heirs impleaded as co-party subsequently. Even as per order sheet placed on record statement of PW1 Bagga Ram and statement of PW2 Parma Nand recorded on 29.11.2013 at the time when co-defendant No. 2 Mohan Singh @ Man Singh was dead and when his L.Rs. were not brought on record.

It is well settled law that under Order XXII Rule 4 sub-clause (2) Code of civil procedure 1908 any person so made a party may make any defence appropriate to his character as legal representative of deceased defendant. It is well settled law that legal representative cannot take plea contrary to taken by deceased in written statement. It is well settled law that L.Rs can take only representative plea in civil suit and cannot take individual plea in civil suit. It was held in case reported in , AIR 1995 SC 1653 titled Vidyawati v. Man Mohan and others that as per sub-rule (2) of Rule 4 of Order XXII CPC legal representative of deceased can make only defence appropriate to character as legal representative.

Submission of learned Advocate appearing on behalf of non-applicants that information about death of co-defendant No. 2 was not given by co-defendant No. 1 who is real brother of deceased co-defendant No. 2 to Court as per order XXII Rule 10-A CPC and on this ground application filed by applicants be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that provisions of order XXII Rule 10-A are procedural in nature. There is no provision for penalty for non-compliance and it is directory and not mandatory. See , AIR 1987 SC 1510 titled United Bank of India v. Smt. Kanan Bala Devi and others. It is well settled law that when death of one of co-defendant was not informed to the Court or to learned Advocate then legal representatives of deceased can not be penalized and in such a situation the provision of Order XXII Rule 10-A of the Code of Civil Procedure would not attract. It is well settled law that if the party has breached the duty cast on them by the law under Order XXII Rule 10-A then party would be estopped from contending in Court not to condone the delay in bringing legal representatives of deceased on record. It is well settled law that as per Section 137 Chapter X of Indian Evidence Act 1872 evidence is complete when process of examination-in-chief and process of cross examination is completed. Point No. 1 is decided accordingly.

Point No. 2 (Relief).

In view of findings on point No. 1 above application filed under Order XVIII Rule 17 read with Section 151 CPC is allowed for limited purpose only. Applicants are permitted to cross examine PW1 Bagga Ram and PW2 Parma Nand appropriate to their character as legal representative only as mentioned in order XXII rule 4 sub clause (2) of Code of civil procedure 1908. Observations will not effect merits of case in any manner and will be strictly confined to the disposal of OMP No. 267 of 2015. OMP No. 267 of 2015 is disposed of.