BABU RAM Vs. JANKI DEVI

JUDGEMENT

(1.) This petition has been preferred by the defendant against the order passed by the learned Civil Judge (Junior Division), Court No. 1, Una, District Una, H.P., allowing application of the plaintiffs under Order 22, Rule 3 read with Order 22, Rule 9 and Order 1, Rule 10 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the CPC) and Section 5 of the Limitation Act for bringing on record the legal representatives of deceased plaintiff No. 2 Smt. Lachhmi Devi. It is undisputed before me that the case was remanded by the learned Additional District Judge, Una vide order dated 23.10.2003. Smt. Bhagti Devi, defendant No. 9 who was respondent No. 6 in appeal had died on 30.5.1993 during the pendency of the suit in the learned trial Court. Behari Lal, defendant No. 15, who was respondent No. 12 in appeal had died on 3.1.1998 during the pendency of the appeal and his legal representatives were not substituted. One of the plaintiffs, namely, Smt. Lachhmi Devi (plaintiff No. 2) had also died during the pendency of the suit and the question for consideration was as to whether the suit abates or not.

(2.) Before the learned trial Court there was no dispute that the deceased defendants had not contested the suit, and they deserve to be deleted from the array of the parties and there was no need to bringing on record their legal representatives in terms of Order 22, Rule 4(iv) of the CPC. The point for contest was the substitution of the legal heirs of the deceased plaintiff No. 2, Smt. Lachhmi Devi. In the application preferred by Smt. Biasan Devi, who is the daughter of plaintiff No. 2, it was pleaded that the applicant was the only daughter of Smt. Lachhmi Devi, who was plaintiff No. 2. She was illiterate, parda-nashin and rustic villager, widowed lady residing with her in-laws in Village Abada Barana. Her husband died about 35 years back. She was not aware about the filing of the suit by her mother nor her mother had ever disclosed this fact to her. Application then proceeds that Shri Roop Chand son of Hari Ram came to her house on 12.11.2003 and disclosed the fact that the suit was pending and the order in appeal etc., had been passed. Before this date she was not aware about the factum of the case pending in any Court. In support of the application, she appeared as her own witness, in addition, PW-2, Roop Chand supported her case. Her evidence was in the form of affidavit which of course supported these facts including the fact that the Roop Chand was her brother being the son of elder brother of her father (Taya). What I find from the cross-examination is that she states that she does not have any knowledge about the fact of the case being filed by her mother who died 8-9 years back. She was staying with her mother and looking after her. Shri Roop Chand used to visit her often. Then she admits "Ye thik hai ki maine apani mata ki jagah is case ki pairavi karti rahi. Meri Mata ki virasat ka intkal mere nam 7-8 saal pahle ho gaya tha." Translation: It is correct that I was looking after this case after my mother, the mutation of inheritance of my mother was attested in my name about 7-8 years back. This destroys the very foundation which she had laid in her examination-in-chief in the affidavit which she had sworn on oath.

(3.) What I find from the order is that the learned trial Court has been remiss in holding that it was for first time that Smt. Biasan Devi came to know about the case on 22.11.2003. The evidence of this witness is clear to the effect that Shri Roop Chand, who was her brother use to keep visiting her. Mutation of inheritance of mother was attested in her favour and after the death of her mother she was looking after the case. The learned trial Court also seems to have been swayed by the fact that no Counsel informed the Court regarding the death either of the plaintiff or the defendant. If it is the provisions of Order 22, rule 10-A which the learned trial Court seems to invoke. All that I need say is that in case of death of the plaintiff, it is the Counsel representing the plaintiff to take steps and it is not the defendant to inform him about such death.