VISHWAJEET JAISWAL Vs. SURESH KUMAR JAISWAL

JUDGEMENT

(1.) In the present case, respondent No. 20 had expired prior to the institution of the civil suit in the year 2003 whereas the civil suit was filed on 16/12/2011. Respondent No. 20, namely, Gurbhaj Singh was arrayed as defendant No. 21 in the civil suit. The civil suit filed by the plaintiffs/appellants was dismissed by the learned 3rd Additional District Judge, Ambikapur, District Sarguja (C.G.) vide judgment and decree dtd. 16/4/2019. The present appeal was preferred by the plaintiffs against the aforesaid judgment and decree on 22/5/2019. This court issued notice to the respondents. According to the office report, it came on record that defendant No. 20 had expired in 2003, respondent No. 6 had expired in 2019 and respondent No. 35 expired on 30/4/2017. The appellants moved applications for bringing legal representatives of deceased respondents under Order 22 Rule 4 of CPC along with the application for setting aside abatement under Order 22 Rule 9 of CPC and an application for condonation of delay under Sec. 5 of the Limitation Act assigning reason that the fact of the death of these respondents was not brought into their knowledge.

(2.) During the course of arguments, an objection was raised by the respondents that respondent No. 20, namely, Gurbhaj Singh had expired prior to the institution of the civil suit whereas no steps were taken to bring his legal representatives on record. Further, the objection was raised that the application under Order 22 Rule 4 of CPC is not maintainable for respondent No. 20 as he did not expire during the pendency of the civil suit.

(3.) Mr. Anurag Singh, counsel appearing for appellants would submit that though other defendants appeared before the learned trial court, who are family members of respondent No. 20, namely, Gurbhaj Singh, they never informed the court that respondent No. 20 is no more, therefore, no steps could be taken during the pendency of the civil suit. He would further argue that a civil suit was filed for partition and possession and both the parties have right over the suit property. He would further submit that the share of each member of the family is certain in the suit property, therefore, the suit shall not abate against any of the parties to the civil suit. He would also argue that though an application under Order 22 Rule 4 of CPC for substitution of legal representatives of respondent No. 20 is not maintainable according to provisions of Order 22 Rule 4 of CPC, at the same time, application under Order 1 Rule 10 of CPC is maintainable according to the ratio laid down by Hon'ble Supreme Court in the matter of Pankajbhai Rameshbhai Zalavadiya Versus Jethabhai Kalabhai Zalavadiya (deceased) reported in (2017) 9 SCC 700. He would also submit that this court may exercise its power to treat the application moved under Order 22 Rule 4 of CPC as an application under Order 1 Rule 10 of CPC.