Remanded

Vijay Singh and Ors. v. Gurdeep Singh and Ors.

Rajasthan HC23 Mar 2021CR/167/2016

Case brief

AI extract

What is this about?

The High Court disposed of a revision petition challenging an order of abatement in a suit for specific performance. While maintaining the abatement against one deceased defendant, the Court remanded the matter to the trial court to decide whether the suit abates as a whole due to the co-ownership nature of the suit.

What did the court decide?

The question whether the suit abates as a whole was remanded to the trial court for determination. The order on abatement against defendant no. 1 was maintained.

Vijay Singh and Ors. Vs Gurdeep Singh and Ors. — Specific Performance | Rajasthan HC (2021)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Revision Petition No. 167/2016

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Vijay Singh S/o Shri Nazar Singh S/o Bishan Singh, Banwali Tehsil Sadulsahar, District- Sriganganagar

¶4

Surjeet Kaur D/o Shri Nazar Singh S/o Bishan Singh, Banwali Tehsil Sadulsahar, District- Sriganganagar Through Power Of Attorney Holder Vijay Singh S/o Bishan Singh By Caste Jat Sikh, R/o Banwali, Tehsil Sadulsahar, District- Sriganganagar

¶5

Jasveer Kaur D/o Shri Nazar Singh S/o Bishan Singh, Banwali Tehsil Sadulsahar, District- Sriganganagar Through Power Of Attorney Holder Vijay Singh S/o Bishan Singh By Caste Jat Sikh, R/o Banwali, Tehsil Sadulsahar, District- Sriganganagar

¶6

Preetpal Kaur D.o Shri Nazar Singh S/o Bishan Singh, Banwali Tehsil Sadulsahar, District- Sriganganagar Through Power Of Attorney Holder Vijay Singh S/o Bishan Singh By Caste Jat Sikh, R/o Banwali, Tehsil Sadulsahar, District- Sriganganagar

¶7

Ajmer Singh S/o Shri Nazar Singh S/o Bishan Singh, Banwali Tehsil Sadulsahar, District- Sriganganagar

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----Petitioners

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Versus

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Gurdeep Singh S/o Shri Babu Singh, 7Bnw, TeshilSadulsahar, District- Sriganganagar

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Baljeet Singh S/o Shri Babu Singh, 7Bnw, TeshilSadulsahar, District- Sriganganagar

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Gurdev Singh S/o Shri Babu Singh, 7Bnw, TeshilSadulsahar, District- Sriganganagar Formal Party

¶13

Jagan Singh S/o Nazar Singh S/o Shri Bishan Singh, Banwali Tehsil Sadulsahar, District- Sriganganagar

¶14

----Respondents

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For Petitioner(s) : Mr. R.C.Joshi. For Respondent(s) : Mr. S.L.Jain.

¶16

HON'BLE MR. JUSTICE ARUN BHANSALI

(2 of 5)

[CR-167/2016]

Order

23/03/2021

This revision petition is directed against the order dated 26/8/2016 passed by Addl. District Judge No.1, Sriganganagar, whereby, the trial court came to the conclusion that the proceeding against defendant no.1 has abated and the plaintiffs have been directed to file amended cause title.

¶22

The suit for specific performance was filed by plaintiffs, Gurdeep Singh and Baljeet Singh, against seven defendants, who are daughters and sons of Nazar Singh and against Gurdev Singh, who was impleaded as proforma defendant inter alia with the averments that Nazar Singh was recorded khatedar of agricultural land situated at Chak 5 BNW (Revenue) and 7 BNW. Nazar Singh executed a general power of attorney dated 29/12/1978 in favour of Gurdev Singh, which was registered with Sub-Registrar, Sriganganagar. Nazar Singh died on 14/3/2003, during his life time he did not cancel the general power of attorney. The power of attorney holder Gurdev Singh executed agreement to sell dated 4/10/2002 in favour of plaintiffs and as such, the suit for specific performance was filed against the legal heirs of deceased Nazar Singh.

¶23

Submissions were made in the plaint seeking specific performance and prayer was made for grant of specific performance of the agreement dated 4/10/2002.

¶24

During the pendency of the suit, an application was filed on 30/4/2016 inter alia indicating that in October, 2014, Gurdev Kaur, defendant no.1, daughter of deceased Nazar Singh, has died and,

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(3 of 5)

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[CR-167/2016]

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therefore, the legal representatives, as indicated in the application, be taken on record and cause title be amended.

¶28

The application was contested by defendant nos. 2, 3 and 5 to 7 inter alia with the submissions that on 15/10/2014 the plaintiffs had the information in this regard by way of reply dated 27/8/2015 filed in response to the application under Order XXXIX Rule 2-A CPC, wherein, the said fact was indicated, as the steps have not been taken within 90 days, the suit has abated and no prayer has been made seeking setting aside of abatement and condonation of delay in filing the application, the application was liable to be dismissed.

¶29

Further submissions were made that the suit, on account of not bringing on record the legal representatives of deceased Gurdev Kaur, has abated as a whole.

¶30

The trial court after hearing the parties, came to the conclusion that Gurdev Kaur died on 15/10/2014, the plaintiffs had the knowledge on 24/8/2015 and as the plaintiffs had not filed any application seeking setting aside of the abatement under Order XXII Rule 9 CPC and condonation of delay under Section 5 of the Limitation Act, the suit had abated qua defendant no.1 and, therefore, amended cause title be filed. The trial court, however, did not deal with the submission as to whether the suit would abate as a whole.

¶31

The order dated 26/8/2016 has not been challenged by the plaintiffs – respondents and to the said extent the order has become final.

¶32

It is submitted by learned counsel for the petitioners that the trial court committed error in not dismissing the suit as a whole

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(4 of 5)

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[CR-167/2016]

¶35

inasmuch as looking to the nature of the suit, on account of abatement qua defendant no.1, the same could not proceed against all other defendants. Submissions were made that as the deceased defendant – Gurdev Kaur was co-sharer with her brothers and sisters as heir of Nazar Singh, their father, once the suit has abated qua defendant no.1, in case the same is continued against other defendants and a decree is passed, the same would result in a contradictory decree and, therefore, the suit was liable to be dismissed as a whole.

¶36

Reliance was placed on Budh Ram & Ors. vs. Bansi & Ors. : (2010) 11 SCC 476 and Birdi Chand vs Board of Revenue : 2006 WLC (Raj.) UC 747 .

¶37

Learned counsel for the respondents opposed the submissions. It was submitted that as the heirs of Nazar Singh has succeeded to the land in question to the extent of their respective shares, the abatement of suit qua only one defendant would not lead to dismissal of the suit as a whole.

¶38

Reliance was placed on Bhanwar Devendra Singh vs. Meenakshi Projects Ltd. & Ors. : 2017 (1) DNJ (Raj.) 64 .

¶39

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

¶40

A bare perusal of the order passed by the trial court indicates that the trial court has merely dealt with the aspect of abatement of the suit qua defendant no.1 – Gurdev Kaur, and though a plea was raised in reply to the application regarding the suit having abated as a whole, submission in this regard was not noticed by the trial court in its impugned order and consequently the said aspect was not determined by the trial court. However, looking to

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(5 of 5)

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[CR-167/2016]

¶43

the nature of the suit and the plea raised, it is apparent that the issue as to whether the suit would abate as a whole or not, requires determination by the trial court. However, as the said aspect has not even been deliberated upon by the trial court, the same deserves adjudication by the trial court itself instead of this Court determining the said issue first time while exercising powers under Section 115 CPC.

¶44

Consequently, the revision petition filed by the petitioner is disposed of.

¶45

While the order passed by the trial court to the extent of suit having abated qua defendant no.1 – Gurdev Kaur is maintained, the matter is remanded back to the trial court to determine the issue as to whether on account of suit having abated qua defendant no.1 – Gurdev Kaur, the same would abate as a whole or not.

¶46

The parties shall appear before the trial court on the date, already fixed by it as further proceedings, though, have been stayed by this Court, it would be fixing dates in the suit.

¶47

It is expected of the trial court to hear and decide the said aspect of the matter with utmost expedition.

¶48

baweja/-

Vijay Singh and Ors. v. Gurdeep Singh and Ors.

Case brief

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Vijay Singh and Ors. v. Gurdeep Singh and Ors.

Case brief

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