Allowed

Vanit Singh v. Mahavir Dal (Regd.) Bhadaur

Punjab & Haryana HC24 Feb 2009CR/695/2007

Case brief

AI extract

What is this about?

In this revision petition, the High Court set aside a lower court order that dismissed an application to implead a legal representative as time barred. Relying on Order 20 Rule 3 CPC, the Court held that appeals do not abate on the appellant's death and permitted the petitioner to represent the deceased's estate.

What did the court decide?

The impugned order allowing restoration but rejecting impleading was set aside. The petitioner was permitted to be impleaded as the legal representative without a merits inquiry into his claim.

Vanit Singh Vs Mahavir Dal (Regd.) Bhadaur — Succession and Inheritance | Punjab & Haryana HC (2009)

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C.R. No. 695 of 2007 [1]

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 695 of 2007 (O&M) Date of decision: 24.2.2009

Vanit Singh

.. Petitioner

Mahavir Dal (Regd.) Bhadaur

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.. Respondent

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CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL

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Present: Mr. H.R. Nohria, Advocate for the petitioner.

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Mr. Tushar Sharma, Advocate for the respondent.

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Rajesh Bindal J.

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Challenge in the present petition is to the order dated 10.11.2006, passed by the learned court below, whereby the application filed by the petitioner for bringing the legal representative of deceased- Harbhajan Kaur on record, was dismissed.

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Briefly, the facts are that Harbhajan Kaur had filed appeal bearing Civil Appeal No. 33/26.4.2004 before Additional District Judge, Barnala. During the pendency of the appeal, she died on 8.8.2005. On the next date of hearing, i.e., 27.1.2006, the appeal was dismissed for non-prosecution. When the petitioner, the legal representative of deceased-Harbhajan Kaur, came to know about the appeal filed by her, application for restoration of the appeal and also for impleading her as her legal representative was filed. On no objection by the respondent for restoration of the appeal, vide order dated 8.4.2006, the appeal was ordered to be restored. However, no order was passed for bringing the petitioner as legal representative of deceased-Harbhajan Kaur on record. A fresh application was filed, which was rejected with the observation that the same is time barred.

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Learned counsel for the petitioner submitted that the approach of the learned court below in dismissing the application for impleading the legal representative of deceased- Harbhajan Kaur as time barred is totally contrary to law, as in terms of the amendment carried out by this Court on 4.2.1992 in Order 20 Rule 3 CPC, on account of the death of the appellant, the appeal does not abate. Once that is so, to opine that the application filed by the petitioner for being

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C.R. No. 695 of 2007 [2]

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impleaded as legal representative of deceased-Harbhajan Kaur as time barred was totally misconceived and accordingly, the same deserves to be allowed.

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On the other hand, learned counsel for the respondent submitted that during the pendency of the application initially filed by the petitioner for bringing him on record as legal representative of deceased- Harbhajan Kaur, fresh application could not be filed. Vide earlier order dated 8.4.2006, only the appeal was directed to be restored and the petitioner was not permitted to be brought on record as legal representative and the application being belated, the same should not be allowed.

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Having heard learned counsel for the parties, I find merit in the submissions made by learned counsel for the petitioner. Once the court was restoring the appeal filed by deceased-Harbhajan Kaur on an application filed by the petitioner claiming to be her legal representative, it was incumbent on the court to have passed the order even on the application for being impleaded as legal representative of deceased-Harbhajan Kaur. No order having been passed, though the appeal was restored on the application of the legal representative, the petitioner filed application, which was in the kind of reiteration of the claim made in the earlier application, the same should not have been considered as a fresh application filed for the purpose. Once in terms of the amendment carried out in Order 20 Rule 3 CPC by this Court w.e.f. 4.2.1992, an appeal is not to abate in case of death of the appellant, it cannot be said that the application filed for impleading the legal representative beyond 90 days would be time barred, as the legal representative is only to pursue the appeal, representing the appellant in the court, which otherwise the court was obliged to deal with even in the absence of legal representative being on record.

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For the reasons mentioned above, the impugned order passed by the learned court below is set aside and without opining on the merits of the will, as is sought to be relied upon by the petitioner for claiming himself to be the legal representative of deceased-Harbhajan Kaur, he is permitted to be impleaded as her legal representative and pursue the appeal. The appeal filed by deceasedHarbhajan Kaur is directed to be restored to its original number to dealt with in accordance with law.

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Parties through their counsels are directed to appear before Additional District Judge-I, Barnala on 28.3.2009 for further proceedings in accordance with law, who may either keep the appeal with himself or entrust the same to any other officer.

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C.R. No. 695 of 2007 [3]

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The revision petition is allowed in the above terms.

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(Rajesh Bindal) Judge 24.2.2009 mk

Vanit Singh v. Mahavir Dal (Regd.) Bhadaur

Case brief

What is this about?

What did the court decide?

Vanit Singh v. Mahavir Dal (Regd.) Bhadaur

Case brief

What is this about?

What did the court decide?

What the court decided

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