Rajendra Kumari and Others v. Raja Virbhadra Singh and Another

Himachal Pradesh HC19 Nov 2024OMPM/39/2021

Case brief

AI extract

What is this about?

Impleadment of legal representatives of deceased defendant; Order 22 Rule 4 CPC; Section 151 CPC; Section 2(11) CPC definition of legal representative; Section 6 Specific Relief Act suit for possession; right to sue survives death of defendant; palace property at Rampur Bushahr and Sarahan (Khewat/Khasra/Khatoni references); objections by proposed LRs Nos. 1(a), 1(b), 1(d), 1(e); admission by proposed LR 1(c); High Court of Himachal Pradesh; Justice Virender Singh; decided 19.11.2024; defendants No. 1 (a) to 1 (e) brought on record; amended memo of parties within two weeks.

What did the court decide?

Application allowed: proposed legal representatives of deceased defendant No. 1 brought on record as defendants No. 1 (a) to 1 (e); amended memo of parties to be filed within two weeks; application disposed of. ¶¶38

Rajendra Kumari and Others Vs Raja Virbhadra… — Specific Performance | Himachal Pradesh HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the application filed under Order 22 Rule 4 read with Section 151 CPC to implead the legal representatives of deceased defendant No. 1 should be allowed. +1 more

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Court's answer

The death of defendant No. 1 was not disputed, nor was it disputed that the persons named in the application are his legal representatives; the proposed legal representatives clearly fit within the definition of legal representatives in Section 2(11) of the CPC.

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Ratio / Principle

With the death of defendant No. 1, the cause of action survives upon the proposed legal representatives; counsel for the respective proposed legal representatives could not satisfy the Court as to how it does not survive.

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Key takeaways

The proposed legal representatives mentioned in para-3 of the application are ordered to be brought on record as defendants No. 1 (a) to 1 (e), and the amended memo of parties is to be filed within two weeks.ratio¶¶37

Detailed headnote1 paragraphs

OMP (M) No. 39 of 2021 in CS No. 134 of 2021, High Court of Himachal Pradesh, Shimla (Virender Singh, Judge), reserved 23.10.2024, decided 19.11.2024 — Application under Order 22 Rule 4 read with Section 151 CPC to implead the legal representatives of deceased defendant No. 1 (Raja Virbhadra Singh) in a suit for possession under Section 6 of the Specific Relief Act over portions of the palaces at Rampur Bushahr and Sarahan. Death of defendant No. 1 undisputed; the persons named in the application held to fall within the definition of 'legal representatives' in Section 2(11) CPC; cause of action held to survive upon them despite objections of proposed LRs No. 1 (a), 1 (b), 1 (d) and 1 (e) that the claim was personal to defendant No. 1; proposed LRs ordered to be brought on record as defendants No. 1 (a) to 1 (e) with amended memo of parties within two weeks; application disposed of.

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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OMP (M) No. : 39 of 2021 in CS No. : 134 of 2021 Reserved on : 23.10.2024 Decided on : 19.11.2024 Rajendra Kumari and others …Plaintiffs/ Applicants Versus Raja Virbhadra Singh (deceased) …Defendants/ through LRs & another Non-applicants

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Coram

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The Hon’ble Mr. Justice Virender Singh, Judge.

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Whether approved for reporting?¹

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For the plaintiffs/ : Mr. Sumit Raj Sharma, Applicants Advocate. For the defendants/ : Mr. G.D. Verma, Senior Non-applicants Advocate, with Mr. Sumit Sharma, Advocate, for proposed LR No. 1 (a). Mr. Shrawan Dogra, Senior Advocate, with Mr. Tejasvi Dogra and Mr. Harsh Kalta, Advocates, for proposed LRs No. 1 (b), 1 (d) and 1 (e). Ms. Anu Tuli, Advocate, for proposed LR No. 1 (c).

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1 Whether Reporters of local papers may be allowed to see the judgment? Yes.

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Mr. Neeraj Gupta, Senior Advocate, with Mr. Pranjal Munjal, Advocate, for defendant No. 2.

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Virender Singh, Judge.

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By way of the present application, filed under Order 22 Rule 4 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’), a prayer has been made to implead the legal representatives of deceased defendant No. 1, who, as per the application, has expired on 8^th July, 2021, leaving behind his legal representatives, whose names have been mentioned in para-3 of the application.

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It is the specific averment in the application that the right to sue survives upon the said legal representatives of deceased defendant No. 1. As such, a prayer, as aforesaid, has been made.

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When put to notice, proposed LRs No. 1 (a) has filed the reply, to the application, and has taken the preliminary objections that the application is not maintainable; that the cause of action, upon which, the suit has allegedly been filed, by the plaintiffs/applicants, does no longer survive, as, the plaintiffs/applicants have

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not set up any title over the suit property; that the claim, which was set up by the plaintiffs/applicants, was only against defendant No. 1 and the same was individual in the nature; that the plaintiffs/applicants have not annexed the death certificate of deceased defendant No. 1; and, that they have no right, title or interest, in the suit property.

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On merits, the factum of death of defendant No.

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1 has not been disputed. The claim of the plaintiffs/ applicants is stated to be only against defendant No. 1, which, according to her, is personal in capacity and after his death, the same does no longer survive.

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It is the specific case of proposed LR No. 1 (a) that it is defendant No. 2, who is the only necessary party in the suit, who is stated to be in exclusive possession of the suit property.

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As such, a prayer has been made to dismiss the application.

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The plaintiffs/applicants have filed the rejoinder, to the said reply, denying the preliminary objections, by asserting that the cause of action to sue,

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survives upon Class-I legal heirs of defendant No. 1. The other contents of the reply have been denied.

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The plaintiffs/applicants have also filed rejoinder to the reply filed, on behalf of proposed LR No. 1(b), but, the reply, so filed, on behalf of proposed LR No. 1(b) could not be traced on the file. As such, the same was got traced from the Registry, which was found to be lying under objections, since 22^nd July, 2022. However, in order to decide the present application, the same has been called for, from the Registry, as it is.

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Proposed LR No. 1 (b), though, has filed her separate reply, but, on similar lines, as has been filed on behalf of proposed LR No. 1 (a). The reply filed on behalf of proposed LR No. 1 (b) has been adopted on behalf of proposed LRs No. 1 (d) and 1 (e).

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Proposed LR No. 1 (c) has filed her separate reply and has admitted the prayer, so made by the plaintiffs/applicants, by pleading that after the death of defendant No. 1, the right to sue survives upon the proposed LRs No. 1 (a) to 1 (e), alongwith defendant No. 2.

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The plaintiffs have filed the present suit for

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possession, under Section 6 of the Specific Relief Act, against the defendants. The relief clause of the suit, reads as under:

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“It is, therefore, prayed that the suit of the plaintiffs may kindly be decreed and the following relief(s) be granted to the plaintiffs:

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A) A decree for possession of land i.e. Half Portion of the Palace (South Side Towards Tehsil Office) at Rampur Bushahr comprised in Khewat No. 5, Khasra No. 9 and 10 & Khewat No. 9, Khatoni No. 20, situated at Mohal Kasba Bazaar, Rampur First, Tehsil Rampur, District Shimla and Half Portion of Palace at Sarahan comprised in Khewat No. 2, Khatoni No. 3 and Khewat No. 3, Khatoni No. 8, situated in Mohal Sarahan, Tehsil Rampur, District Shimla, H.P. may kindly be passed in favour of the plaintiffs and against the defendants.

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B) That a decree for permanent prohibitory injunction restraining the defendants from transferring, alienating, creating any charge, changing the nature of the suit property and also from interfering with the possession of the plaintiffs in the out house/servant quarters be also passed in favour of the plaintiffs and against the defendants.

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C) That a decree for mandatory injunction directing the defendants to restore the articles/goods laying in the palaces at Rampur and Sarahan on the date i.e. 9.5.2018 when the possession wrongfully taken by the defendants may kindly be passed.”

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The relief, as sought in the plaint, is qua the subject matter of the lis, which is immovable property. The learned counsel appearing for the respective proposed legal representatives could not satisfy the judicial conscience of this Court, as to how, with the death of defendant No. 1, the cause of action does not survive upon the proposed legal representatives.

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The death of defendant No. 1 has not been disputed. It has also not been disputed hat the persons, who have been mentioned, in the application, as the proposed legal representatives of deceased defendant No. 1, are not his legal representatives. As such, the proposed legal representatives clearly fit within the definition of legal representatives, as mentioned in Section 2 (11) of the CPC.

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Consequently, the proposed legal

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representatives, as mentioned in para-3 of the application, are ordered to be brought on record, in the present lis, as defendants No. 1 (a) to 1 (e). Amended memo of parties be filed within two weeks.

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