Ramesh Chand Goyal and Anr. Vs Sant Lal and Ors.

Dr. Anmol Rattan Sidhu, Se n ior Advocate with Mr. Jashandeep Singh Bains , Advocate Mr. H.S. Rajput, Advocate a n d Mr. Gurpreet Singh, Advoca t e for respondent Nos.1 to 3 & 1 1.

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PANKAJ JAIN, J. (ORAL)

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[1] The appeal is directed against order dated 12.04.2023 wher e by the Appe l late Court in an application see k ing setting aside ex parte judg m ent and decr e e dated 24.12.2021 preferred b y legal representatives of defen d ant No.6-Jan a ki Dass in the original suit ord e red that the legal representative s of Janki Da s s should establish the status a s legal representatives by fili n g a separate s uit.

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[2] Plaintiffs-respondents filed a suit seeking declaration to the effect th a t they have become owners b eing in possession as occupa n cy tenants. Janaki Dass was impleaded as defendant No.6. Janaki Dass w as RAJNEESH SHARMA 2025.08.02 14:47 I attest to the accuracy and integrity of this document

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proceede d against ex parte. Suit was d ismissed by the Court of the f irst instance. In appeal preferred by the pla i ntiffs, Janaki Dass was not ser v ed invoking Order XLI Rule 14 CPC. Suit was finally decreed vide judg m ent and decr e e dated 24.12.2021 passed by D i strict Judge, Hisar. [3] The plaintiff-respondent N os.1 to 3 being the l e gal represent a tives of Janaki Dass filed an a pplication seeking setting asid e of the ex p a rte judgment and decree date d 24.12.2021, claiming that Ja n aki Dass die d on 17.12.1968 and even his s on namely Madhu Sudan died on 11.12.19 9 0 and thus, it is a case where th e suit was filed against dead pe r son and ex p arte decree was obtained wit h out there being proper proce d ure followed. It is on the said application th a t the Lower Appellate Court w h ich passed the decree in appeal made the fo l lowing observations relegating the plaintiffs to file a separate suit to first establish their status as legal heir s of defendan t Nos.5 & 6:-

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“10. Admittedly, a judgment a nd decree dated 24.12.2021 has b een passed by my learned Predec e ssor in a suit titled Sant Lal etc. Vs. Ram Dulari etc. after settin g aside the judgment and decre e of learned trial court. Now no p roceedings of any kind is pen d ing before this court. The applica n ts have filed the present applicat i ons claiming themselves to be the l e gal heirs of defendant no. 5 Ban w ari Lal and defendant no. 6 Janki Dass, on the basis of some photostat documents. All these docume n ts are photostats and pertainin g to different places. The docum e nts relied upon by the applic a nts Chameli Devi, Sachin, Subh a sh, Anil and Sunil pertain to one Banarsi Dass and not defend a nt no. 5 Banwari Lal. On the o t her hand, the plaintiffs-appellants have also filed some document s in which it appears that till the y ear 2010, deceased Janki Dass w as alive and one Mukesh son of R am Parkash is the only legal hei r of deceased Janki Dass. For setting aside the exparte judgment a nd decree, the applicants firstly p r oved themselves to be the legal heirs

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of defendants no. 5 and 6 by leading cogent and convin c ing evidence. I have perused or d er 22 Rule 5. Order 22 Rule 5 is applicable at appellate stag e only when some appeal or o t her proceedings are pending and t he question of determination of l e gal representatives arises. But in t h e present case, neither the appeal nor any other proceedings are pen d ing or going on before this Appellate court. It is a matter of evidenc e whether the applicants are the l e gal heirs of defendants no. 5 and 6 , so without determining the ques t ion of legal heirs, a legal judgment and decree cannot be set a s ide because in the present contr o versy, it is a disputed fact that the applicants are the legal hei r s of defendants no. 5 and 6. The appropriate remedy to the applicants is to approach the Civil C o urt for declaring the impugned ju d gment and decree as null and vo i d if same has been passed agains t dead persons, by filing a civil suit after proving themselves to be t he legal heirs of defendants no. 5 a nd 6, instead of filing the present a pplication before this court. The c ase law relied upon by learne d counsel for the applicants are distinguishable in the facts an d circumstances of the present case . 11. As a result of foregoin g discussion, finding no merit in the present applications, the same a re hereby dismissed with no orde r as to costs. File of these applica t ions be tagged with the main ap p eal file of case titled as Sant L a l etc. Vs. Ram Dulari etc. an d be consigned to record room afte r due compliance. ”

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[4] In the considered opinion o f this Court, the impugned o r der cannot b e sustained in view of the proce d ure laid down in Order XXII R ule 4 CPC a s applicable to Punjab, Haryan a and Chandigarh by way of H igh Court A mendment inserted by Pu nj ab Government Gazette d a ted 25.03.19 2 5, which reads as under:-

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“77) Order XXII. Rule 4:-

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(1) where one of two or more defendants dies and the r i ght to sue does not surviv e against the surviving defendan t or defendants alone, or a sole defendant or sole survi v ing

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defendant dies and the r ight to sue survives, the Court, o n an application made in t hat behalf, shall cause the l e gal representative of the deceased defendant to be made a p a rty and shall proceed with t h e suit.

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(2) Any person so m ade a party may make any def e nce appropriate to his cha r acter as legal representative of the deceased defendant.

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(3) Where within the time limited by law no application is made under sub-rule (1) the suit shall not abate as agains t the deceased-defendant a nd judgment be pronou n ced notwithstanding the death and shall have the same force a nd effect as if it had bee n pronounced before the death t ook place.

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(4) If a decree ha s been passed against a decea s eddefendant a person cl a iming to be his legal representative may apply for setting a side the decree qua him and if i t is proved that he was not aware of the suit or that he had not intentionally failed to m a ke an application to bring himsel f on the record, the Court s hall set aside the decree upon such terms as to costs or otherwise as it think fit. (5) Before setting as i de the decree under sub-rule (4) the Court must be satisfi e d prima facie that had the l e gal representative been on the record a different result m i ght have been reached in th e suit. (6) The provisions o f section 5 of the Indian Limitation Act 36 of 1963 shall apply t o application under sub-rule (4)".

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[5] In view of Order XXII R u le 4(4) where a decree has been passed a g ainst a deceased-defendant, his legal representative may apply for setting as i de the decree passed. In terms of Order XXII Rule 4(5), the C o urt has to de t ermine as to who was the legal representatives when a party to the suit dies.

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[6] The issue w.r.t. decision by the Court regarding rival claim s of

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the parties claiming themselves to be legal representative of the decease d is no more r e integra. Interpreting Order X X II Rule 5 CPC, Supreme Cou r t in the case of Jaladi Suguna (Dead) through L.R. vs. Satya Sai Central Trust and others, (2008) 8 SCC 521 held as under:

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“11. The provisions of R ules 4 and 5 of Order 22 are mandatory. When a respon d ent in an appeal dies, the C o urt cannot simply say that it w ill hear all rival claimants to the estate of the deceased respo n dent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be l e gal representatives, as parties t o the appeal without deciding w ho will represent the estate of t h e deceased, and proceed to hear the appeal on merits. The court c annot also postpone the decisio n as to who is the legal represe n tative of the deceased respond e nt, for being decided along wi t h the appeal on merits. The C o de clearly provides that where a question arises as to whether a ny person is or is not the l e gal representative of a dece a sed respondent, such question shall be determined by the court. T he Code also provides that wh e re one of the respondents dies a nd the right to sue does n o t survive against the survi v ing respondents, the court shal l , on an application made in t hat behalf, cause the legal r epresentatives of the dece a sed respondent to be made parti e s, and then proceed with the c a se. Though Rule 5 does not spe c ifically provide that determina t ion of legal representative shoul d precede the hearing of the ap p eal on merits, Rule 4 read with R ule 11 make it clear that the ap p eal can be heard only after the l e gal representatives are brough t on record.”

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[7] The aforesaid dictum has be e n further followed by Apex C o urt in the c a se of Mahanth Satyanand @ Ramjee Singh vs. Shyam Lal Chaudhan and others, (2018) 18 SCC 485 holding as under :

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“11. It is indisputable that the procedural laws are mean t to advance justice. A proced u re contemplated under the c o de which is mandatory in natur e shall not be skipped or ignore d by the Courts. Whereas, in t h e instant case, the High Co u rt’s approach has diluted the pur p ort of Order 22 Rule 5 of the C PC and is contrary to the law l aid down by this Court in Ja l adi Suguna (supra). Such an ap p roach of the High Court canno t be sustained.

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Although we are app r ised of the fact that alleged l e gal representatives relying on c e rtain customs to prove wheth e r a Grihastya could be a Guru u nder the relevant sampradaya. We need not concern our self w ith the aforesaid findings on m erit given by the trial court at th i s stage. It is for the High Cou r t to consider the aforesaid report of the trial Court and determine the disputed question of fact. It may not be out of context to n ote that the determination und e r Order XXII Rule 5 of CP C is summary in nature and for li m ited purpose. Order passed on the impleadment applications, d etermining a particular perso n as legal representative has no e f fect of final decision or operate s as res-judicata between the leg a l representatives as to the ques t ion of who should ascend as Gu r u. At the cost of repetition, we m ay note that the determination b y the High Court would be lim i ted to the question, as to who s hould be brought on record in the place of deceased for the pu r poses of continuing the suit al o ne, and nothing beyond that.”

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[8] The respondents-plaintiffs h ave contested the status of the petitione r s as LRs of Janaki Dass claimi n g that the Death Certificates re l ied upon are m erely photocopies.

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[9] Be that as it may, instead of relegating the plaintiffs for fili n g a separate s uit, the Court that passed th e decree was to satisfy itself w ith RAJNEESH SHARMA respect t o the plaintiffs-applicants being the LRs of the deceased and p ass 2025.08.02 14:47 I attest to the accuracy and integrity of this document

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order.

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[10] Accordingly, the impugned order is hereby set aside . T he matter is r emanded back to the District J u dge, Hisar to decide the applica t ion filed by t he plaintiffs for setting aside o f the ex parte decree against d ead person as claimed afresh in accordance w ith law after adjudicating upon the status o f applicants claiming thems e lves to be LRs of decea s eddefendan t /Janaki Dass. The parties shall appear before District Judge, H i sar on 11.08. 2 025.

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[11] This Court is quite sanguine that keeping in view that the m a tter is pendin g for long, the District Judge shall make endeavour to adjudi c ate the appli c ation within a period of 09 m onths from the date of receip t of certified c opy of this order.

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[12] Disposed off . All pending m iscellaneous application(s), if a ny, stands di sp osed off .

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(PANKAJ JAIN) JUDGE 02.07.20 2 5 ‘R. Sharma' Whether speaking/ reasoned : Yes/No Whether reportable : Yes/No

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Ramesh Chand Goyal and Anr. v. Sant Lal and Ors.

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