ISassta '-'^~^iFiyE-.B"?<E|FI; !N THE HON'BLE HK5H COURT OF JUDICATURE AT iSHi ^l twsa •*ts i D^FENDANT-S ,.^?-s&>-; ^s:<^2 •^ ">'?? -^^••' @$ RESPONDENTS P<AINTIFFS 'Ctefr-10 1. DASRATH, Sfa Late Shri Jeevan Lal, Age abaut 53 Years, Smt. BA.YYA.N BA1, Wfa Late Shri Jeevan Lal, Age about 65 Years, Bolh WQ Gram - Rakhi, Tahsil Saia, Di^t-. Durg (C.G-) •l. 4. / 5 PREU LAL, Sto Devnath, Age about 68 years, Smt. KUNTl BA1, Wto Prem Lal, Age about 66 Y^rs, BHUVAN LAL, Sfo Prem lal, A.ge afaout 48 Years, LA.TESHWER, Sto Prem tal, Age about 34 Years, DWA.RIKA, Sfo Prem Lal, Age about34Y©ars, M R/o Gram - Rakhi, Tahsil - Sa^a, Di'stt. Durg (C.G.) PUNNl LAL, Sto Prem lal, Age about 43 ^ears, Agricultiirist, R/Q Gram - Kandaie, Tahsil - Sa^a, Dlstt. Ourg <C.G.) STA.TE OF CHHA.TTISGA.RH, Through Collector, Distt.-. Durg <C.G.) IISCELLANOUS APPEAL UNDER 0.43. R-T (u) OF C.P.C. ^f^^ ^F^t&t. '^ •:? .if -».-m-. % li?h ^"^^ a IURT •c; 1/21 'T.T A1\Tr .Jl 1. S^jUJLMr^l^ ^. otlier Shri Yogesh Pandey, counsel for the appellants. ihri P.P. Sahu, counsel forthe respondents No. 1 to 5. Shri Ajay Dwivedi, Deputy Govemment Advocate for Sta'te/respondent No.7. ^fiSCELLANEOUSAPPEAL L7M)ER ORDER 43. RLTLE-1 (U) OF CPC (20/08/2010) This appeal has been preferred by the defendant in the suit challenging the order passed by the First Appellate Court thereby allowing the plaintiffs appeal which was preferred against the Trial Courts order dated 31/08/2005 holding thatthe suit has abated. (2) The preferred the instant suit for declaration of title, permanent mjunction and in the altemative for possession as also for damages. (3) According tliey belong to one set of joint Hindu family, whereas the defeiidants belong to another set ofjoint Hindu family and there has been a partition ainongst them in the year 1991 and thereafter the parties are in possession of their respective share. However, the defendaiits are interfering in their possession, therefore the suit has been preferred. -t- (4) Admittedly the defendant No.3 Baldau was a. lunatic. The plaintiff initially moved an application under Order 6 Rule 17 read with Order 32 Rule 15 of CPC which was later ou withdrawn with liberty to file a duly constituted application under Order 32 Rule 11 ofCPC. Before this application could be decided, the said defendant No.3 Baldau died on 8/05/1999. The Diaintij not move anv application for about a year for bringing 011 record the legal heirs/legal representatives of deceased Baldau. On 2/05/2000, the plaintiffs moved application under Order 22 Rule 4 and under Order 12 Rule 9 of CPC for impleadment of one Bayyan Bai, the mother of •^^ ^,^, defendant No.3 as his legal representative. (5) The Trial Court vide its order dated 31/'08,''2005 dismissed the applications and consequently the suit vvas dismissed as abated. The Trial Court held that since the plaintiffs have failed to impiead the legal represeiitatives of the deceased defendant, Baldau within time permissible in law and that there has been no justifiable and bonafide reason for their failure to do so within time, suit has abated. (6) The defendants preferred the first appeai which has been allowed by the impugaed order. (7) The First Appellate Court has held that the defendant No.l Jeevanlal is the father of deceased defendant, Baldau, vvhereas the defendant No.2 Dashrath.is his brother. According to the Appellate Court, the estate of the deceased was represented by the father and brother ofthe deceased and that the present is not a case where in the absence of the legal heir/mother of the deceased haviug not been joined within time the suit would be abated as a whole on the ground that conflictmg decree would be passed viz-a-viz the deceased on the one hand and the remaining defendants on tiie other hand. 8) Counsel for the appellant would submit that the First Appellate /*. Court has committed serious error of law by treating the defendants No.l and 2 as the legal representatives of the deceased without holding any enquir>' as contemplated under Order 22 Rule 5 ofCPC. He would also submit that the plaintiffs were negligent and careless in moving the application and that knowing fully well and even after being informed by the defendants about the death of Baldau, tiiey did not move the subjeet application before Trial Court within the time prescribed in law. He would submit that the Appellate Court has committed a serious en'or by allowing the appeal and setting aside tlie order passed by the Trial Court. He has relied on Jaladi Suguna Vs. Zi (9) Counsei for the respondent vvould submit that the First Appellate Court has correctly appreciated the facts and the law applicable and that the suit has not abated. He would farther argue that vvhile dealing with applications under Order 22 Rule 4 Order 22 Rule 9 of CPC the courts should adopt a justice oriented approach so as to advance substantial justice and sliould not adopt hyper techmcal approach. He has relied on ,L.J. 731 (10) I have perused the record ofthe case. ^-. (11) Deceased Baldau died on 8/05/1999. From the very begmninj the plaintiffhas been making effort to implead Ba>yan Bai as next friend or giiardian oflunatic defenda.nt Baldau. However, even before the said applicatiou could be decided, Baldau died and thereafter the application was filed after about one year from the date of death of (12) In the application, the plaintiffs had stated that the brother aiid father ofthe deceased are already on record, therefore the estate of the deceased is duly represented and that the mother of the deceased being the remaimng legal heir should be impleaded. Tne reply ofthe defendant on this application was that the suit has abated and that the brother and father being class-II heir, they cannot be the legal heir of the deceased as long as the mother who is the only class-I heir ofthe deceased is alive. The Trial Court accepted the plea ofthe defendant to hold that since mother is the only class-I heir of deceased and she alone would represent the estate of the deceased, even if the brother and father are available as party in the suit, they cannot represent the estate ofthe deceased, therefore the suit has abated. (13) The argument ofthe learned counsel for the appellant that an enquity under Order 22 Rule 5 is necessaiy has no substance, because under Order 22 Rule 5 ofCPC an enquity and the detennmation is to be made when tlie question arises as to whether aiiy person is or is f'^tTiTSiTlt^P' ftT 0 /^! (=>^'(::s-t3 Cf=kn nliQITITITT f~^t* Q /^^rk('lCi C'^e' l&g.dl I'hiplS'&S'llLClLlW <J± <Z U.&^&O.t'i^U pjiaiiiu.Li ui it u^'vS'ass'^. l/,defendant. In the present case, the defendants have not raised any -s s dispute in their reply before Trial Court that except Ba)'>'an Bai any other person would be the legal heir ofthe deceased defendantNo.3. Thus, there was no dispute before trial court or for that matter before the Appellate Court as to whether or not Bayyan Bai was the only lega' heir of deceased Baldau who was sought to be implea. place ofBaldau. (14) The First Appellate Court has observed that the defendants No.l and 2 v/ere representing estate ofthe deceased and it appears the appellant, in this context, is arguing that the First Appellate Court has held that the brother and father of the deceased have been declared as legal representatives ofthe deceased. However, representing estate of the deceased for the pufpose of decidiag whether or not the suit has abated does not mean that the person representing estate of ths deceased is infact the legal representatives of the deceased for the purpose of succeeding to the properU' of the deceased. Thus, this court is of the opinion that the contention of the appellant that the father and son have been declared as the legal representatives of the deceased should be uaderstood in the context of the question of abatement ofthe suit and not for any other purpose. '15) In the matter ofUnion of India Vs. Ram Charan (deceased) 'ough Ms Legal Representafive.s, AIR 1964 SC 215 and Rs 1201, it should make endeavor to dec.ide the dispute between the parties on B'r -4 merits so as to advance substantial justice and to give finality to the di'spute betweeu the parties. A nan-ow, pedantic and hyper technical approach keeping aside the realties of life should not be adopted by 1 the courts in matters regarding impleadment on account of death of a part)'" to the suit. (16) The First Appellate Court has not committed any en-or oflaw or auy irregularity of such a fundamental nature which shal! vitiate the finding recorded and the order passed by it. (17) Consequently, the appeal fails and is hereby dismissed. Sd/- Prashant Kumar Mishra Judge