In the High Court of Punjab and Haryana at Chandigarh ...... (1) R.S.A. No.2727 of 1979 ..... Date of decision:23.1.2008 Mohinder Singh .....Appellant v. Joga Singh and others .....Respondents .... (2) R.S.A. No.2728 of 1979 ..... Mohinder Singh .....Appellant v. Kabal Singh and others .....Respondents .... Present: Mr. M.S. Rakkar, Senior Advocate with Mr. P.S. Baath, Advocate for the appellant. Mr. H.S. Grewal, Advocate for the respondents. ..... S.S. Saron, J. (Oral) Mohinder Singh son of Ujagar Singh filed two suits against the vendees of the land of Pritam Singh his father's brother. Civil Suit No.477 of 1975 was filed seeking declaration to the effect that the plaintiff is owner in possession of land measuring 21 Kanals 7 Marlas out of 35 Kanals as detailed in the head note of the plaint and that Joga Singh-defendant No.1 and Smt. Gurmit Kaur-defendant No.2, Kabal Singh-defendant No.11, Gurmail Singh-defendant No.12 and/or any of them have no right, title or interest in the said land. Besides, the sale deed dated 19.8.1975 executed by Gurmail Singh-defendant No.12 in favour of Joga Singh and Smt. Gurmit Kaur-defendants No.1 and 2 is a nullity. Consequential relief for permanent injunction restraining Joga Singh and Smt. Gurmit Kaur-defendants No.1 and 2 as also Kabal Singh and Gurmail Singh-defendants No.11 and 12 from R.S.A. Nos.2727/1979 etc. [2] interfering in any manner in the lawful possession of the plaintiff was also claimed. Besides, an alternative prayer for possession of the suit land was made. In Civil Suit No.478 of 1975, a declaration was sought to the effect that the plaintiff is owner of 33 Kanals 19 Marlas of land as detailed in the head note of the plaint. Besides, 1 Kanals 1 Marla of land out of 2 Kanals 17 Marlas of land as detailed in the head note of plaint situated in the Revenue Estate of Village Bakkapur, Tehsil Balachaur, District Hoshiarpur and that Kabal Singh-defendant No.1 and Joga Singh-defendant No.10 and Gurmail Singh-defendant No.11 or any of them has no right, title or interest in the said land. Besides, sale deed dated 19.8.1975 executed by Gurmail Singh-defendant No.11 in favour of Kabal Singh- defendant No.1 is a nullity and as a consequential relief permanent injunction restraining Kabal Singh-defendant No.1, Joga Singh-defendant No.10 and Gurmail Singh-defendant No.11 from interfering in any manner in the peaceful possession of the plaintiff was prayed. In order to understand the facts of the case, the following pedigree table would be necessary:- Jawahar Singh ______________________________/__________________________________ Sahbu / / / / Gopal Singh Fateh Singh Rattan Singh / ___/______ (died _____________/__________________________ Labh Pritam Singh issue- Pritam Ujagar Singh Sohan Singh Singh (adopted less) Singh _____________/_____ ______/_____ (died son) (who was / / / / / issue adopted Mohan Mohinder Piara Bagicha Raj less) by widow Singh Singh Singh Kaur Gopal plaintiff / widow Singh) / / ___________________/__________ / / / Karnail Singh Chuhar Jarnail Singh Singh Mohinder Singh-plaintiff son of Ujagar Singh primarily assailed the R.S.A. Nos.2727/1979 etc. [3] sale of land which was sold by Gurmail Singh-defendant No.11 in one suit and defendant No.12 in the other suit acting as an attorney of Pritam Singh in favour of the vendees Joga Singh and Smt. Gurmit Kaur in one case and Kabal Singh in the other case. It was inter alia alleged that Pritam Singh was of unsound mind and was not heard of for the last 32 years. He was, therefore, presumed to have died and, therefore, the sale deeds executed by Gurmail Singh as attorney of Pritam Singh were a nullity. In Civil Suit No.477 of 1975 Joga Singh-defendant No.1 and Kabal Singh-defendant No.11 filed a written statement contesting the claim. The other defendants, namely, Smt. Raj Kaur-defendant No.3, Chuhar Singh-defendant No.4 Jarnail Singh-defendant No.5, Karnail Singh-defendant No.6, minor sons of Bagicha Singh and Major Singh-defendant No.9 and Balbir Singh-defendant No.10 sons of Piara Singh filed a separate written statement whereby they supported the case of the plaintiff. Gurmail Singh-defendant No.12 filed a separate written statement and controverted the allegations made in the plaint. In Civil Suit No.478 of 1975 Kabal Singh-defendant No.1 and Joga Singh- defendant No.10 through their counsel filed a joint written statement while Gurmail Singh-defendant No.11 filed a separate written statement contesting the suit. The other defendants i.e. Raj Kaur-defendant No.2, Chuhar Singh-defendant No.3, Jarnail Singh-defendant No.4 and Karnail Singh-defendant No.5, minor sons of Bagicha Singh and Major Singh-defendant No.8 and Balbir Singh-defendant No.9 sons of Piara Singh filed a separate written statement. In the two suits that were filed the following issues were framed by the learned Sub Judge Ist Class, Garhshankar on 1.4.1976:- “1. Whether the suit is within time? OPP. 2. Whether the plaintiff has locus-standi to sue? OPP. 3. Whether the plaintiff is in possession of the suit land? OPP. R.S.A. Nos.2727/1979 etc. [4] 4. Whether the suit is properly valued for purposes of court fee and jurisdiction? OPP. 5. Whether Pritam Singh has not been heard of? If so for how long to what effect? OPP. 6. Whether Pritam Singh executed a valid general power of attorney in favour of Gurmail Singh defendant on 10.7.1975 as alleged? OPD (12). 7. Whether Gurmail Singh defendant executed a valid sale deed dated 19.8.1975 in respect of the suit land in favour of defendant No.1 and 2? OPD (1 & 2). 8. Whether defendants 1 and 2 are bona fide purchaser for value and without notice? 9. Whether Pritam Singh is alive and is a necessary party? OPD (1 & 2). 10. Whether the persons mentioned in preliminary objection No.5 of Gurmail Singh defendant are necessary party as alleged? OPD (12) 11. Whether the suit does not lie in the present form? OPD. 12. Whether the suit is bad for misjoinder of defendants No.11 as alleged? OPD. 13. Relief.” The plaintiff produced his evidence and closed his evidence on 21.1.1977. The contesting defendants also examined some witnesses and on 24.9.1977 a statement was made by counsel for the defendant that only Kabal Singh-defendant was to be examined. Thereafter, on 19.11.1977, an application was filed on behalf of Kabal Singh and Joga Singh that Smt. Raj Kaur widow of Sohan Singh son of Rattan Singh i.e. brother of Pritam Singh had died more than R.S.A. Nos.2727/1979 etc. [5] three months ago. The plaintiff had not brought her legal representatives on record, who were necessary parties and, therefore, the suits were liable to be dismissed as having abated. Copy of the death entry of Smt. Raj Kaur was also filed on 30.12.1977 which showed that she (Smt. Raj Kaur) had died on 3.8.1977. The plaintiff filed reply to the application of Kabal Singh and Joga Singh stating that Smt. Raj Kaur was represented by her counsel Shri Pawan Kumar, Advocate and that it was for him to bring on record the legal representatives of the deceased Smt. Raj Kaur in view of the provisions of Order 22 Rule 4 of the Code of Civil Procedure (`CPC' – for short). Therefore, the suits did not abate. In any case, on 11.1.1978, the plaintiff-Mohinder Singh submitted an application for bringing on record the LRs of Smt. Raj Kaur. In terms of the said application a prayer was also made for condonation of delay in terms of Section 5 of the Limitation Act, 1963. The contesting defendants filed reply to the said application and notice was ordered to be issued to the proposed LRs of Smt. Raj Kaur. Thereafter, vide order dated 17.3.1978 the plaintiff was ordered to file an amended plaint and pay fee to the court guardian for the minors Chuhar Singh, Jarnail Singh, Karnail Singh and Kirpal Kaur, who were some of the LRs of Smt. Raj Kaur. The case was adjourned to 28.3.1978 for the said purpose. The plaintiff, however, neither paid the fee for the court guardian nor did he file amended plaints in the two cases. He himself had not turned up. Accordingly, the case was adjourned to 31.3.1978 subject to payment of costs of Rs.15/-. On the last mentioned date the plaintiff again did not turn up and neither did he comply with the order dated 17.3.1978. The case was, however, further adjourned to 1.4.1978 subject to costs. Thereafter, Shri R.C. Gaur, Advocate, learned counsel for the plaintiff stated that the plaintiff had not turned up to comply with the order dated 17.3.1978 or to pay the costs and he asked for more time. The learned Sub Judge Ist Class, Garhshankar, however, R.S.A. Nos.2727/1979 etc. [6] vide judgment dated 1.4.1978 after noticing the aforesaid facts dismissed the suits of the plaintiff in view of the provisions of Order 17 Rule 3 CPC. The plaintiff aggrieved against the order dated 1.4.1978 of the learned Sub Judge Ist Class, Garhshankar filed appeals before the learned District Judge. During the pendency of the appeal before the learned lower appellate Court, Mohinder Singh-plaintiff made a statement in both the appeals that he does not want to pursue his appeals against the minor defendants-LRs of Smt. Raj Kaur i.e. Chuhar Singh, Karnail Singh, Jarnail Singh and Kirpal Kaur. Accordingly, their names were ordered to be struck off from the array of respondents. The learned Additional District Judge upheld the findings of the learned trial Court in dismissing the suits of the plaintiff in terms of Order 17 Rule 3 CPC. Additionally, it was held that another hurdle in the way of these appeals is that the plaintiff-appellant had himself made a statement giving-up the said minor defendants as party to the appeals. The minor defendants, it was observed, being necessary parties to the suits were also necessary party to the appeals and that the Court always watches and guards the interest of the minors zealously. The said minors were not party to both the appeals and, therefore, the appeals were held to be incompetent and were accordingly dismissed. Aggrieved against the judgment and decree of the first appellate Court dated 3.4.1979 the plaintiff-appellant has filed the present two regular second appeals. Mr. M.S. Rakkar, learned Senior Advocate appearing with Mr. P.S. Baath, Advocate has contended that the suits were not liable to be dismissed in terms of Order 17, Rule 3 CPC, inasmuch as, the evidence of the plaintiff in the case had been concluded and except for the statement of Kabal Singh-defendant, the defendants' evidence had been concluded. Therefore, the appeal was liable to be considered and disposed of on merit. Rather, than adopting the short-cut R.S.A. Nos.2727/1979 etc. [7] method of invoking the provisions of Order 17 Rule 3 read with Order 17 Rule 2 CPC. It is also contended that LRs of Smt. Raj Kaur were rightly given-up as they were not entitled to succeed to the estate of Pritam Singh whose property was in dispute. It is submitted that Raj Kaur died on 3.8.1977 and she was the widow of Sohan Singh and Sohan Singh had pre-deceased her. Therefore, in accordance with Class-II heirs of the schedule read with Section 8 of the Hindu Succession Act, 1956 (`Act' – for short) the brother's widow is not a Class-I heir to the estate of Pritam Singh. As such, it is submitted that LRs of Smt. Raj Kaur, who were her grand-sons being the sons of Bagicha Singh were not necessary parties and were rightly given-up by the plaintiff-appellant. In response, Shri H.S. Grewal, Advocate appearing for the contesting defendants-respondents Joga Singh and Kabal Singh, who are the vendees and also the LRs of Gurmail Singh, who was the attorney of Pritam Singh has submitted that the provisions of Order 17 Rule 3 CPC have rightly been invoked as the plaintiff himself on his own failed to comply with the order dated 17.3.1978 on many occasions. He failed to file the amended plaints and also failed to pay the fee for the guardian of the minors. Therefore, it is submitted that the fact that brother's widow is not the Class-II heir of Pritam Singh is inconsequential as the default is on the part of the plaintiff-appellant himself. I have given my thoughtful consideration to the contentions of the learned counsel for the parties and also perused the record. After consideration of the matter, the question is whether the suit could be dismissed only because of default on the part of the plaintiff to comply with the order dated 17.3.1978 asking him to file an amended plaint and to deposit the fee for the guardian of the minors. In this regard, it may be noticed that the admitted position is that evidence of the plaintiff had been closed in the case on 21.1.1977. Thereafter, defendants also R.S.A. Nos.2727/1979 etc. [8] examined some evidence and on 24.9.1977 counsel for the contesting defendants made a statement that only Kabal Singh-defendant is to be examined. Thereafter, an application was filed on 19.11.1977 by the defendants that Raj Kaur-defendant No.3 had died on 3.8.1977 and her LRs had not been brought on record within the prescribed period and the suit had abated. It is in consequence of this application that the suit was further proceeded with for impleading the LRs and thereafter allowing the application of plaintiff for impleading the LRs and asking him to file amended plaint by impleading the LRs of Smt. Raj Kaur and also to deposit fee for the court guardian. It may, however, be noticed that the LRs of Smt. Raj Kaur may not be necessary parties. As has already been noticed the case of the plaintiff that Pritam Singh had not been heard off for a period of 32 years and Gurmail Singh was not his attorney and, therefore, Gurmail Singh could not have executed the two sale deeds dated 19.8.1975 in favour of the vendees Joga Singh and Smt. Gurmit Kaur in one suit (Civil Suit No.477 of 1975) and Kabal Singh in the other suit (Civil Suit No.478 of 1975). It is not in dispute that Sohan Singh, brother of Pritam Singh had pre-deceased Smt. Raj Kaur, who is shown as widow of Sohan Singh in the suits. Section 8 of the Act provides for general rule of succession in the case of males. It is provided that the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter- firstly, upon the heirs, being the relatives specified in Class I of the Schedule; secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased and lastly, if there is no agnate, then upon the cognates of the deceased. In the present case, it is to be determined whether Pritam Singh had died and if so, what is the date of death of Pritam Singh. Therefore, the said R.S.A. Nos.2727/1979 etc. [9] aspects are to be determined on the basis of evidence and material by the learned trial Court. The date of death of Sohan Singh is also to be ascertained. In case Sohan Singh had pre-deceased Pritam Singh, then his legal representatives including Smt. Raj Kaur and the minor grand-sons of Raj Kaur, who are sons of Bagicha Singh would have no share in the property. However, in case Sohan Singh succeeded to the property of Pritam Singh and died thereafter then certainly Smt. Raj Kaur and the minor sons of Bagicha Singh son of Sohan Singh and Smt. Raj Kaur would also have a right to the property. Therefore, the observations of the learned Additional District Judge that they had rightly been given-up without going into this aspect is not sustainable. This aspect is liable to be considered and gone into by the learned trial Court on the basis of the evidence and materials that have been produced on record. The question whether the suit could have been dismissed on the technical default by invoking the provisions of Order 17 Rule 3 CPC, it may be noticed that evidence of both the parties except for the statement of Kabal Singh- defendant had been concluded. In Hakam Singh v. Jodh Singh and others, AIR 1984 Punjab and Haryana 255, a Division Bench of this Court held that where a party to whom time was granted had committed default on the adjourned date, the duty of the Court is “to proceed to decide the suit forthwith”. Reliance was placed on a decision of the Hon'ble J & K High Court in Hari Ram v. Krishan Lal, AIR 1964 J & K 79, wherein it was observed as follows:- “Order 17, R. 3 is a general provision of law which can be made applicable to any case. Order 17, R. 3 contemplates final disposal of the suit on the material that is on record on that day. Therefore, a reasonable construction of this rule would suggest that from the action of the court it should transpire that the court does not want to have R.S.A. Nos.2727/1979 etc. [10] any further hearing of the case but has made up its mind to dispose of the case on the material that is already on record at that time and must, as the dictionary meaning put it, try to dispose of the case within a reasonable time and without delay.” Sansnath Tripathi v. Tripathi Bhagwal Nath AIR 1966 All 615 is also a precedent on the same lines.” It was observed by the Division in Hakam Singh's case (supra) that the Court is not obliged under Order 17, Rule 3 CPC to condone the lapse of a litigant but in its sound judicial discretion proceed to take the next step towards decision of the case as expeditiously as possible, within a reasonable time, as the circumstances of the case require. It was observed that “forthwith” used in Order 17 Rule 3 cannot be understood to mean there and then on the same day. The language of the provisions, it was observed, is not “to decide the suit forthwith” but “proceed to decide the suit forthwith”. Therefore, it is not that the suit was to be dismissed forthwith for non-compliance with the order dated 17.3.1978. In Parkash Chander Manchanda and another v. Smt. Janki Manchanda, AIR 1987 SC 42, it was observed that if on a date fixed one of the parties of the suit remained absent and for that party no evidence had been examined upto that date the Court has no option but to proceed to dispose of the matter in accordance with the Order 17 Rule 2 in any one of the modes prescribed in Order 9 CPC. However, after amendment by Act 104 of 1976 to Order 17 Rules 2 and 3 in case where a party is absent only course is as mentioned in Order 17 Rule 3(b) i.e. to proceed under Rule 2. Therefore, in the absence of the defendant, the Court had no option but to proceed under Rule 2. Similarly, the language of Rule 2 as it now stands, it was observed, also clearly lays down that if in one of the parties failed to appear, the Court has to proceed to dispose of the suit in one of the modes prescribed under R.S.A. Nos.2727/1979 etc. [11] Order 9. The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion, it was observed, is limited only in case where a party which is absent has led some evidence or has examined substantial part of their evidence. Also in such a case the Court cannot proceed to dispose of the suit on merits and after it proceeds to dispose of the suit in any one of the modes provided under Order 9. In the present case, not only substantial part of evidence but almost all the evidence, except for the statement of defendant Kabal Singh, had been concluded. Therefore, in terms of the ratio of the above judgment, the Court was obliged to limit its discretion to invoke the provisions of Order 17 Rule 3(b) read with Order 17 Rule 2. Rather, it was to proceed to decide the suit on merits. Even otherwise the modern trend is for decision of the case on merit rather, than disposing of a matter on technical consideration. It is well settled that where substantial justice and technical considerations are pitted against each other the cause of substantial justice is to prevail. Therefore, the learned trial Court erred in dismissing the suits in default by invoking the provisions of Order 17 Rule 3(b) read with Order 17 Rule 2 CPC. For the foregoing reasons, the appeals are allowed and the judgments and decree of the Courts below are set aside and the matter is remanded to the learned trial Court to proceed with the case from the stage of recording the statement of Kabal Singh. The statement made by the counsel for the plaintiff giving-up the minors is kept open to be considered by the trial Court on the basis of evidence and material on record. The parties through their counsel shall appear before the learned Civil Judge (Senior Division), Garhshankar on 3.4.2008. The records of the learned Courts below be returned. Keeping in view the time gap that has taken in the R.S.A. Nos.2727/1979 etc. [12] disposal of the appeal in this Court, it is hoped that the learned trial Court shall consider and dispose of the case as expeditiously as possible. January 23, 2008. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes