In RSA No.2445 of 1994 (O&M)-PUNJ HC- Amended Order XXII Rule 3 & 4 of CPC, 1908 applicable to Punjab, Haryana & Chandigarh, provides that there is no abatement of case on account of failure to file application by legal representative due to death of any party: P&H HC Justice Anil Kshetarpal [04-07-2022]

Read Order: Babu Lal v. Lal Chand and Another

Monika Rahar

Chandigarh, July 19, 2022:  The High Court of Punjab and Haryana has observed that in terms of Rule 2 of Part-C, Chapter-I of Volume-V of the Rules and Orders of Punjab and Haryana High Court,  a legal representative of a deceased party to a decree or order is entitled to present a memorandum of appeal along with an application for leave to implead himself as the appellant.

Further, the Bench of Justice Anil Kshetarpal has held, “Although, this Rule is applicable to the High Court, however, in view of amendment in Order XXII Rule 3 and 4 CPC, 1908 carried out in the States of Punjab, Haryana and Union Territory, Chandigarh, which provides that there is no abatement of the case on account of failure to file an application by the legal representative due to the death of any party…”

In this case, two independent suits were filed from which these appeals arose. In 1987, late Sh. Mangtu Ram filed a suit for the grant of decree of a permanent injunction, claiming that he was in possession of the property as a lessee in terms of the registered lease deed allegedly executed by Sh. Omkar Singh (defendant) for a period of 80 years and thus, the defendants had no right to interfere in his possession. 

Late Sh. Mangtu Ram was the paternal uncle of Sh. Lal Chand (the respondent in both the appeals and central figure in the litigation). Mangtu Ram died unmarried and thus, the father of Lal Chand was impleaded as his legal representative. In 1998, the suit was decreed ex-parte against the first defendant (Sh. Omkar Singh). The appeal filed by the appellant claiming to be the legal representative of Sh Omkar Singh, who died in 1991, was dismissed as not maintainable. This is how the Regular Second Appeal was filed. 

Another suit was filed by Sh. Lal Chand in 1998 for the grant of decree of possession by way of specific performance of the agreement to sell against Sh.Omkar Singh. He claimed that Sh. Omkar Singh agreed to sell a piece of land via a 1984 agreement to sell. Sh. Omkar Singh was paid earnest money and the sale deed was to be executed and registered on receipt of the balance sale consideration. This date was extended on numerous occasions because of the non-responsiveness of Omkar Singh. The cause of action in favour of the plaintiff, firstly, accrued in 1984 when the agreement to sell was executed and subsequently, in 1985 when the defendant did not attend the office of the Sub Registrar to execute the sale deed. 

The defendant, while contesting the suit, asserted that neither any agreement to sell was executed between the parties nor the amount of 28,000/- was received as earnest money. 

The defendant contested the suit on the ground that the plaintiff assured him that he would get his joint land partitioned as there was a dispute between the co-owners and under that pretext, he was taken to the office of the Tehsildar (Sub Registrar) on several times occasions where his thumb impression was taken on various documents on the pretext that they were required for filing the application for partition. 

It was further averred by the defendant that the plaintiff fabricated an agreement to sell as also scribed the agreement for extension of time and in a similar manner, he fabricated a lease deed in favour of Sh. Lal Chand’s paternal uncle late Sh. Mangtu. 

Initially, the defendant was proceeded against ex parte resulting in an ex parte decree against him. Pursuant thereto, the sale deed was executed. However, on an application under Order IX Rule 13 CPC, 1908, the ex parte decree was set aside and the trial of the case commenced.

The trial Court recorded a finding that the execution of the agreement to sell, the agreement of extension of time and the presence of the plaintiff in the office of the Sub-Registrar, were proved. Consequently, the trial Court held that the plaintiff was entitled to a decree for specific performance. The first Appellate Court also affirmed the aforesaid findings. 

During the pendency of the appeal, two separate applications under Order XLI Rule 27 CPC, 1908 were filed seeking permission of the Court to prove the copy of the receipt for 40,000/-, Collector rates of the agricultural land of the village on the date of filing of the application, special power of attorney executed by Sh. Omkar Singh in favour of Sh.Lal Chand and a copy of the lease deed executed by Sh.Omkar Singh in favour of late Sh. Mangtu Ram (paternal uncle of Lal Chand) for a period of 80 years.

Both the applications were allowed as it was noticed that a copy of the receipt and a copy of the lease deed is hitherto a part of the record in the connected case and special power of attorney was already pleaded by the defendant in his written statement. 

The counsel for the plaintiff was granted an opportunity to lead counter-evidence, but the counsel decide against leading any evidence on the adjourned date. While reserving the judgment, an opportunity was given to the counsel representing the parties to file the written arguments within the next seven working days. The written arguments were filed. 

In the first suit__, the defendant-Sh.Omkar Singh was proceeded against ex parte before the trial Court. Sh. Babu Lal claiming to be the legal representative and grandson of late Sh.Omkar Singh, filed an appeal, which was dismissed only on the ground that Sh.Babu Lal was not a party to the suit and since he did not file an application for impleading the legal representative during the pendency of the suit, therefore, the appeal was not maintainable. 

Regarding such dismissal, the Court was of the opinion that the appellant court unfortunately overlooked Rule 2 of Part-C, Chapter-I of Volume-V of the Rules and Orders of Punjab and Haryana High Court and also, despite taking note of the assertions made by Sh. Babu Lal, claiming to be such a legal representative based on the registered Will, dismissed the appeal.

Justice Kshetarpal thus opined, “… [In terms of the above-stated rule] a legal representative of a deceased party to such decree or order is entitled to present a memorandum of appeal along with an application for leave to implead himself as the appellant. Although, this Rule is applicable to the High Court, however, in view of amendment in Order XXII Rule 3 and 4 CPC, 1908 carried out in the States of Punjab, Haryana and Union Territory, Chandigarh, which provides that there is no abatement of the case on account of failure to file an application by the legal representative due to the death of any party, the Court should have permitted Sh.Babu Lal to file the appeal.”

Accordingly, after setting aside this appeal, the Court proceeded to decide the other two appeals. From the impugned judgments, the Court observed that both the Presiding Judges failed to analyze the case in a proper perspective and in-depth and they acted in a “ casual, mechanical and superfluous manner”. Justice Kshetarpal thus remarked, “A mechanical approach while deciding the disputes which does not serve the rule of law and justice, is not expected from the Presiding Judges of the Courts.”

Also, the Court was of the opinion that the entire case set up by the plaintiff in both the suits was surrounded by various irreconcilable circumstances; the various documents executed, did not only defy logic but were also full of suspicion. The Bench further added that the Court was expected to be more considerate towards late Sh. Omkar Singh, who was a poor, weak, ailing and illiterate person, pitted against an educated person (teacher). 

Since this matter pertained to a period prior to the 2018 amendment in the Specific Relief Act, 1963, the Court had discretion regarding the grant of relief of specific performance under Section 20 of the SRA, but owing to the above-stated conduct, the Court refused to exercise the said discretion. 

Thus, keeping in view the aforesaid discussion, the Court opined that both the Courts below erred in granting a decree of specific performance of the agreement to sell, however, there was a contract signed by the parties while admitting receipt of 28,000/-. “Hence, the suit is decreed for alternative relief and the plaintiff shall be entitled to decree of 28,000/- along with the interest @ 9% per annum from the date of payment till its realization”, the Court added, while also holding, “The judgment and decree, passed by both the Courts below, is set aside. If the possession in execution of the decree of specific performance has been delivered to the plaintiff-Sh.Lal Chand, the same shall be restored to Sh.Babu Lal, in the restitution proceedings.”