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Judgment
Piar Singh Rana, J.—1. Present application is filed under Order XVIII Rule 17 read with Section 151 CPC on behalf of legal representatives of deceased co-defendant No. 2 for recalling plaintiffs witnesses for cross examination by legal representatives of deceased co-defendant No. 2.
Brief facts of the case:
Plaintiffs M/s. R.R. Gears and another filed civil suit and sought relief of decree of specific performance of agreement dated 20.1.2005 in favour of plaintiffs and against defendants directing defendants No. 1 to 5 to execute sale deed relating to suit land measuring 19 bighas 16 biswas. Plaintiffs also sought additional relief to hand over vacant possession of suit land to plaintiffs. Plaintiffs also sought additional relief of permanent prohibitory injunction in favour of plaintiffs restraining defendants No. 1 to 5 from selling, transferring and alienating suit land in any manner with costs.
Contesting defendants No. 1 to 5 filed written statement pleaded therein that civil suit is not maintainable. It is further pleaded that defendants did not authorize Jagdev Singh to enter into any agreement of sale on their behalf. It is further pleaded that plaintiffs did not file suit during life time of Jagdev Singh and filed present suit after the death of Jagdev Singh which is not enforceable in law. It is further pleaded that plaintiffs are non-agriculturists and as per provision of section 118 of HP Tenancy Land Reforms Act plaintiffs cannot purchase land in Himachal Pradesh. It is further pleaded that Jagdev Singh was not authorized by defendants to execute sale deed in their behalf. It is further pleaded that general power of attorney executed in favour of Jagdev Singh is also not valid document as Sh Jagdev Singh was not agriculturist. On 2.3.2009 Hon''ble High Court of HP framed following issues:
"1. Whether late Sh Jagdev Thakur executed any agreement for sale dated 20.1.2005 for sale of suit land in favour of plaintiff No. 1 on behalf of defendants?..OPP.
If issue No. 1 is proved in affirmative, whether Shri Jagdev Thakur was competent to execute agreement on behalf of defendants?....OPP.
Whether plaintiffs were always ready and willing to perform their part of agreement?...OPP.
Whether plaintiffs have paid amount as mentioned in plaint towards agreement for sale?...OPP.
Whether plaintiffs are entitled to decree of specific performance of contract, possession and permanent prohibitory injunction, as prayed?...OPP.
Whether suit as framed is not competent and maintainable? ...OPD.
Whether suit is barred in view of provisions of Section 118 of the H.P. tenancy and Land Reforms Act? ...OPD.
Whether suit has not been properly filed, if so its effect? ....OPD.
Relief."
It is proved on record that statements of PW1 Sundeep Goyal and PW2 Vinod Kumar Bansal were recorded on 26.5.2010, statements of PW3 Rajneesh Mahajan and PW4 R.K. Mehra were recorded on 27.9.2011, statements of PW5 S.P. Goyal and PW6 Smt. Harjinder Kaur were recorded on 19.6.2012, statements of PW7 R.K. Mehra and PW8 K.S. Kaundal were recorded on 15.3.2013 and statements of PW9 K.C. Meena, PW10 Sandeep Shama, PW11 Tara Chand and PW12 Gurpreet Singh were recorded on 29.11.2013. It is proved on record that co-defendant No. 2 namely Sh Mohan Singh @ Man Singh died on 13.9.2012 and his legal representatives were brought on record on 23.4.2015. Legal representatives of deceased co-defendant No. 2 filed present application pleaded therein that testimony of witnesses were recorded after the death of co-defendant No. 2 and prior to impleadment of his legal heirs as co-party in civil suit. It is further pleaded that legal heirs of co-defendant No. 2 are legally entitled for cross examination of witnesses. Prayer for acceptance of petition sought.
Per contra response filed on behalf of non-applicants pleaded therein that application is not maintainable. It is further pleaded that joint written statement was filed by all contesting defendants and all contesting defendants were represented by one Advocate. It is further pleaded that death of co-defendant No. 2 was not brought to the notice of Court or learned Advocate appearing on behalf of plaintiffs as required under order XXII Rule 10-A CPC. It is further pleaded that if opportunity of cross examination would allow the same would amount to reopening of entire case and opportunity of cross examination would provide opportunity to the applicants to fill-up lacunae in their case. Prayer for dismissal of application 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.?
Relief."
Findings upon point No. 1 with reasons:
It is proved on record that co-defendant No. 2 Mohan Singh @ Man Singh expired on 13.9.2012. It is proved on record that prior to death of co-defendant No. 2 statements of PW1 to PW6 were recorded. It is proved on record that when statements of PW1 to PW6 were recorded by Court at that time Sh Mohan Singh @ Man Singh was alive. It is held that applicants have stepped into the shoes of deceased Mohan Singh @ Man Singh. Applicants did not file any separate written statement relating to any defence appropriate to their character as legal representative of deceased defendant. Hence it is held that applicants have no legal right to cross examine PW1 to PW6 because testimonies of PW1 to PW6 were recorded during life time of Mohan Singh @ Man Singh. It is well settled law that legal representatives cannot take inconsistent plea taken by predecessor in written statement under order XXII rule 4(2) CPC. It is well settled law that legal representatives cannot set up individual right but can forward only representative character only under order XXII rule 4(2) CPC. It is well settled law that legal representatives can set up their own independent defence and title under order I rule 10 CPC only and not under order XXII rule 4(2) CPC.
It is proved on record that testimonies of PW7 to PW12 recorded after the death of Mohan Singh @ Man Singh. No opportunity of cross examination upon testimonies of PW7 to PW12 given to Sh Mohan Singh @ Man Singh and legal heirs of Mohan Singh @ Man Singh. 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. In the present case no opportunity of cross examination upon testimonies of PW7 to PW12 given to deceased Mohan Singh @ Man Singh and no opportunity of cross examination is given to legal heirs of Mohan Singh @ Man Singh upon testimonies of PW7 to PW12. It is well settled law that when no opportunity of cross examination is given to contesting party upon testimonies of witnesses then same evidence could not be used against party to whom opportunity of cross examination is not given in judicial proceedings.
It is well settled law that as per order XXII rule 4 sub clause (2) CPC legal representatives can make any defence appropriate to their character as legal representatives of deceased defendant. It is held that cross examination falls within definition of defence as mentioned under Order XXII Rule 4 sub-clause (2) Code of civil procedure 1908. It is well settled law that in cross examination only defence questions are asked from the witnesses by legal representatives.
Submission of learned Advocate appearing on behalf of non-applicants that death of co-defendant No. 2 was not informed to Court or to adverse party as provided under Order XXII rule 10-A CPC and on this ground application filed by legal representatives of deceased defendant be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. 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 in nature. 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 Court or to learned Advocate then legal representatives of deceased can not be penalized. It is well settled law that if the party has breached the duty cast on them by 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 in civil suit. It was held in case reported in , AIR 1995 Apex Court 1653 titled Vidyawati v. Man Mohan that all rights and defence as mentioned under order XXII rule 4(2) CPC are available to legal representatives of deceased in civil suit.
The facts of case law cited by learned Advocate appearing on behalf of non-applicants reported in , AIR 1998 Rajasthan 98 titled Ramgopal and another v. Khiv Raj are distinguishable and entirely different than the facts of the present case. In case reported in , AIR 1998 Rajasthan 98 deceased defendant was proceeded ex party but in the present case deceased co-defendant No. 2 was not proceeded ex party. Hence facts of the case law cited supra by learned Advocate appearing on behalf of non-applicants are distinguishable with the present case. In view of above stated facts point No. 1 is partly answered in yes and partly answered in No.
Point No. 2 (Final order).
In view of findings on point No. 1 application is partly allowed. Prayer for cross examination of PW1 to PW6 is declined. However prayer for cross examination of PW7 to PW12 is allowed for limited purpose only. It is held that applicants are permitted to cross examine PW7 to PW12 only for limited purpose i.e. to make any defence appropriate to their character as legal representatives of deceased co-defendant No. 2 only as provided under order XXII rule 4 sub clause (2) of the Code of civil procedure 1908. No order as to costs. Observations will not effect merits of case in any manner and will be strictly confined to the disposal of OMP No. 253 of 2015. OMP No. 253 of 2015 is disposed of.