DHARAM SINGH Vs. MUKHTIAR SINGH

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) This appeal is against the order dated 29th Jan., 2003 by which the first appellate Court partly allowed the appeal of the appellants and remanded the matter back to the trial Court for deciding the suit afresh treating the suit as ex parte against the sole defendant Santa Singh, who died during the pendency of the suit.

(3.) This litigation has checkered history. It is alleged that defendant on 20th April, 1973 agreed to sell the land in dispute to the plaintiff No. 1 and executed an agreement in favour of the plaintiff-respondent No. 1 without getting the sale deed in his favour, the plaintiff agreed to sell the part of the land to the plaintiff No. 2 on 28th July, 1975. After about 14 years from first agreement, the plaintiffs filed present suit for specific performance of contract on 18th Dec., 1987. It appears that defendant Santa Singh was not served, therefore, the trial Court passed the order under Order 5, Rule 20, CPC for service of the respondent publication of summon in newspaper. The trial Court passed the order on 7th April, 1992 to proceed ex parte against Santa Singh and fixed the date for evidence of the plaintiffs on 14th May, 1992. On 25th April, 1992, Santa Singh through his son, who was power of attorney holder of the defendant Santa Singh, submitted an application under Order 9, Rule 7, CPC for setting aside ex parte order. During pendency of this application, the plaintiffs themselves informed the Court on 20th Oct., 1992 that sole defendant Santa Singh expired on 24 Aug., 1992. The plaintiffs even got their injunction application dismissed only on this ground of death of sole defendant. After about more than five months, on 8th Feb., 1992, the plaintiffs submitted an application seeking permission to implead the LRs of Santa Singh as party in the suit without mentioning relevant provisions of Order 22, Rule 4, CPC one of the sons of the sole defendant Santa Singh, who had knowledge of the suit as he appeared as power of attorney holder of the deceased-Santa Singh submitted reply to the application 30th July, 1993. The matter dragged on and ultimately, on 11th July, 1994, another application was submitted by the plaintiffs under Order 22, Rule 4(4) CPC the trial Court by order dated 1st Nov., 1994 dismissed the suit after holding that the suit of the plaintiffs has already abated.