BALVEER KAUR W/O LATE SH. TOTA SINGH S/O LATE SH. MAGHAR SINGH AND OTHERS Vs. TARA SINGH S/O SADHU SINGH AND OTHERS

JUDGEMENT

(1.) This S.B. Civil Review Petition under Section 114 of the Code of Civil Procedure has been filed against the order dated 02.11.2017 in S.B. Civil First Appeal No.72/1986, Tara Singh & Ors. Vs. Balveer Kaur & Ors.

(2.) Briefly stated the facts of the case are that this court, on 011.2017, pronounced the judgment whereby the appeal preferred by the appellants-non-petitioners herein was allowed and the judgment and decree dated 05.07.1986 has been quashed and set aside. While allowing the appeal, this court has observed that the appellants-non-petitioners alleged that Gurmel SinghS/o Shri Sadhu Singh was defendant in the suit, who expired in the month of August, 1985 and this fact was in the knowledge of the respondents Nos.1 to 5 petitioners but his legal heirs were not brought on record within the time limit prescribed, hence, the suit stood abated and the decree is nullity. It was contended that the court believed upon the allegation made by the appellants-nonpetitioners and given finding that the legal heirs of Gurmel Singh S/o Shri Sadhu Singh have also preferred this appeal and challenged the judgment and decree dated 05.07.1986 on merit also and opined that the judgment and decree is passed against the dead person, it has no value in the eye of law and, therefore, there is no need to examine the judgment and decree so passed by the trial court on merit and consequently allowed the appeal and impugned order has been set aside. The appellants-nonpetitioners have misled the court while narrating the fact that Gurmel Singh (in the suit cause title the name is mentioned as Gurmej Singh) was expired in the month of August, 1985. However, Gurmel Singh expired on 05.07.1986 and placed the copy of the death certificate issued by the Gram Panchayat, Ganeshgarh, District Sriganganagar on record of this review petition as Annex. It was stated that the suit was preferred by the predecessor of the petitioners in the year 1973 for the specific performance of contract dated 05.04.1968 and 31.03.1971, which came up for hearing on 05.05.1984 and the arguments of plaintiff were heard and the matter was ordered to be posted for 29.05.1984 for pronouncement of judgment, however, on that day, the judgment could not be pronounced by the reasons whatsoever. Subsequently, again the arguments were taken place on two dates, i.e. 007.1986 and 05.07.1986. Advocate Shri Brij Mohan appeared on behalf of the defendants Nos.2 to 6 (Tara Singh, Gurmel Singh, Kartar Singh, Ishar Singh, Jeet Singh) and put his argument on their behalf. After hearing the parties, the learned trial court allowed the suit vide its order dated 05.07.1986. It was alleged that from the order-sheet of the suit, it clearly revealed that the factum of death of defendant Gurmel Singh was nowhere brought to the knowledge of the court because till the decision of the suit, defendant Gurmel Singh was alive. But, only to mislead the court, appellants-non-petitioners have narrated the wrong facts in the memo of appeal. However, no documentary proof was produced in support of their version nor any affidavit has been filed in support of their version. It was further alleged that the appellants-non-petitioners have not taken any grounds in the memo of appeal and no arguments have been raised at the time of final arguments of the appeal with regard to abatement of suit. Hence, the court has committed a serious error while believing upon the alleged wrong fact regarding the death of Gurmel Singh. It was also stated that during the pendency of the first appeal, the respondent No.2 Jaswant Singh S/o Tota Singh also expired on 25.09.1999 but his legal heirs were not brought on record of appeal, therefore, the appeal itself stood abated and the judgment dated 011.2017 passed by this court is nullity as the same was passed against a dead person. Hence, the present review petition has been filed.

(3.) Heard learned counsel for the parties and perused the material available on record.