Civil Revision 5542 of 2010 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision 5542 of 2010 (O&M) Date of Decision: 31.8.2010 Harikishan .....Petitioner Versus Dharam Pal and others ….Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Jai Bhagwan, Advocate, for the petitioner. Hemant Gupta, J. (Oral) Challenge in the present petition is to the order passed by the learned trial Court on 16.7.2010, whereby the legal heirs of defendant No.2, were ordered to be impleaded, though the said defendant had died prior to the filing of the suit. The sole argument raised by the learned counsel for the petitioner is that the suit was filed against a dead person, therefore, such suit is a nullity. I do not find any merit in the said argument. The plaintiff’s suit is for partition of the joint land. Though the provisions of Order 22 Rule 4 of the Code of Civil Procedure are not applicable to implead the legal heirs of such a deceased, who has died prior to the filing of the suit but in terms of Section 153 of the Code of Civil Civil Revision 5542 of 2010 (O&M) [2] Procedure, such mistake can be ordered to be corrected. Such is the view taken by this Court in Joginder Singh and others v. Krishan Lal and others, AIR 1977 Punjab and Haryana 180, wherein it was held to the following effect:- “The main argument of the learned counsel for the petitioners on this point is that the precise provision under which an error of the type that has occurred in this case can be rectified is S.153 of the Code. That section provides that the Court may at any time and on such terms as to costs or otherwise as it may think fit amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. Reliance for this proposition has been placed on the judgment of this Court in case of Goverdhan Dass Sud Mal (supra) wherein it was held, inter alia, that in order to avoid multiplicity of litigation and do substantial justice between the parties, the Court can substitute the name of an heir in place of his predecessor-in-interest (who had died before the institution of the suit) under the provisions of S. 153 of the Code. The emphasis of the counsel on this point is on the observations of the learned Judge in the aforesaid case to the effect that such relief can be allowed under S. 153 when concededly limitation for filing an independent suit against the person to be added would still be there. Though this proposition was conceded in the case of Goverdhan Dass Sud Mal, it would really depend on certain statutory provision in force at the relevant time. Whether an amendment of this type is made under the cover of O.1 Rule 10(2) of the Code or in exercise of powers vested in the Court under S. 153 would not, in my opinion, make any material difference as the course to be adopted in either of the two cases would be the same end the relief to be granted would also not differ in any material particulars. What can be done in a case of this type is to strike out the name of the dead person which cannot possibly remain in the array of parties and if the law permits to substitute for the name of such dead person the name of any other person who is found to be the proper party to the suit in place of the Civil Revision 5542 of 2010 (O&M) [3] dead person, whether it is done under O.1 R. 10(2) which certainly appears to provide for such an eventuality or done under S. 153 which obviously covers such a situation, is of mere academic interest and need not detain us further.” In Mohan Lal v. Rameshwar Dass and another, AIR 1983 Punjab and Haryana 380, it was held to the following effect:- “…..In this regard it has been ruled in Mehar Singh v. Labh Singh, AIR 1932 Lah 305, Joginder Singh v. Krishan Lal, AIR 1977 Punj & Har. 180, Chatur Prasad Bara Bacha v. Baijnath Prasad, AIR 1930 All 131, Doddamallappa Channabasappa Kari v. Gangappa Shiddappa Gulganji, AIR 1962 Mys 44, Ramjeewan v. Chand Mohammad, AIR 1976 Raj 65 and State of Himachal Pradesh v. Dhuru Ram, AIR 1981 Him Pra 34, that the death of one of the respondents after the decision of the Court below and before the filing of the appeal does not render the appeal a nullity and the legal representatives of the deceased respondent can be brought on record under Section 153 of the Civil P.C. S. 153 of the Civil P.C. would be applicable to appeals also in view of S.141, read with O.1 R.10 and O.41 R.20(2) of the Code. Therefore, I am of the view that the appeal filed was not a nullity and the lower appellate Court had the jurisdiction to bring on record the legal representatives of the respondent who had died before the filing of the appeal and after the decision of the lower Court.” In view of the above, I do not find any patent illegality or material irregularity in the impugned order, which may warrant interference by this Court in exercise of its revisional jurisdiction. Hence, the present revision petition is dismissed. [ HEMANT GUPTA ] JUDGE 31.8.2010 ds