1. Barku Singh, aged about 66 years, S/O late Katti Singh. 2. Manjho Singh v. 1. Arjun Rana S/O Late Kati Rana 2. Chandr
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 4834 of 2019 1. Barku Singh, aged about 66 years, S/O late Katti Singh. 2. Manjho Singh, aged about 64 years, S/O Late Katti Singh. 3. Sanjho Singh, aged about 62 years, S/O Late Katti Singh. 4. Tuma Singh, aged about 60 years, S/O Katti Singh. 5. Bachhu Singh, aged about 58 years, S/O Late Katti Singh. 6. Bharat Singh, aged about 54 years, S/O Late Patru Singh. All of them residents of at village- Puran-bathen, Mashahur Chatro, P.O. & P.S. Deori, District- Giridih, Jharkhand. … … Petitioners Versus 1. Arjun Rana S/O Late Kati Rana 2. Chandrika Rana S/O Late Kati Rana 3. Gajadhar Rana S/O Late Kati Rana 4. Basudeo Singh S/O Late Badri Singh 5. Manjhi Singh S/O Late Badri Singh 6. Sanjho Singh S/O Late Badri Singh 7. Chhatu Singh S/O Late Badri Singh 8. Budho Singh S/O Late Rajib Singh 9. Nunu Singh, S/o Bhopal Singh (Deleted vide order dated 09.07.2024) All Respondents no. 1 to 9 are resident of village Purnabhathan, P.O. & P.S. Deori, District- Giridih, Jharkhand. … … Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioners For the Respondents
Legal Reasoning
--- : Mr. Prakash Chandra, Advocate. Mr. Virendra Kumar, Advocate. M/s Neetu Verma, Advocate. : None --- 18/09.07.2024 1. 2. 3. Learned counsel for the petitioners is present. Nobody appears on behalf of the respondents. This writ petition has been filed for the following reliefs: “For quashing/setting aside the order dated 10.05.20219 passed by the learned District Judge I, Giridih in Civil Appeal no. 19/2013 (Impugned Annexure-5) whereby and where under by passing the impugned order the learned court below has been pleased to reject the petition dated 24.02.2014 of the appellants/petitioners here in filed under order 22 Rule 4(4) of the C.P.C., the learned court below by passing the impugned order has failed to consider the case law cited on behalf of the appellants/petitioners reported in 2013(2) CCC at page 130 (Supreme Court) and 2014 (I) JCR page 430 (JH) and by overlooking the said two Judgments the learned court failed to deal with that the suit was booked for ex-party hearing as against Respondent no. 7 to 12 including respondent no. 1 9 Late Nunu Singh who did not participate in the hearing of the suit and therefore the appellant/petitioners here in were entitled to be exempted for substituting legal heirs and representative of the deceased Respondent no.9, as per the legal provisions provided under order 22 Rule 4(4) of the C.P.C.” 4. The learned counsel for the petitioners, at the outset, seeks permission to delete the respondent No. 9 Nunu Singh by submitting that Nuru Singh had expired and the suit was ex-parte against Nunu Singh who neither appeared nor filed written statement in the suit. He submits that in connection with Nunu Singh a petition under Order XXII Rule 4(4) of CPC was filed seeking exemption to substitute him. In view of the aforesaid submissions, the learned counsel for the petitioners prays and is allowed to delete the name of Nunu Singh from the cause title in red ink during the course of the day. 5. The learned counsel for the petitioners submits that in spite of service of notice upon respondent Nos. 1 to 8, they have not appeared to contest the present case. 6. While giving the facts of the case, the learned counsel submits that the petitioners were the defendants in the suit and were the contesting appellants in the appeal. Title Suit No. 191 of 1993 was initially filed against the present petitioners in the Court of learned Munsiff, Giridih in respect of suit land described in the plaint. The matter related to right, title, interest and possession in connection with the suit property. During the pendency of the suit, the plaintiffs sought impleadment of defendant Nos. 7 to 12 which was allowed vide order dated 02.06.1995 and vide order dated 23.01.1996, the suit was set ex- parte against defendant Nos. 1 to 12 who did not appear and participate in the suit. Since the defendant Nos. 7 to 12 did not join in the appeal together with the defendant Nos. 1 to 6, who were the appellants before the learned appellate court and are the petitioners before this Court, they were impleaded as respondent Nos. 7 to 12 (respondents of second set in the memo of appeal). He submits that said Nunu Singh was the defendant No. 9 in the said suit. 7. The learned counsel further submits that notices were issued to Nunu Singh at the appellate stage and by postal endorsement dated 24.02.2014 he was reported to be dead. Immediately thereafter, the 2 appellants before the appellate court, who are the petitioners before this Court, filed a petition on 24.02.2014 under Order XXII Rule 4(4) of CPC submitting that the suit was booked ex-parte interalia against the said defendant vide order dated 23.01.1996 and Nunu Singh did not participate in the suit, therefore there was no need to substitute him by his legal representatives. The learned counsel submits that the said petition has been rejected by the impugned order dated 10.05.2019. 8. The learned counsel has submitted that in continuation to the said petition dated 24.02.2014, an affidavit was also filed on 10.10.2018. He submits that by the impugned order dated 10.05.2019, the petition has been rejected by holding that the appeal had already abated against deceased Nunu Singh and the learned court was of the view that such exemption could be granted in partition suit and that Nunu Singh was not a proforma respondent and therefore, it cannot be said that his interest will stand protected by other respondents in the appeal. The Court was of the view that the legal representatives of Nunu Singh were necessary for the purposes of adjudication and the date of death of Nunu Singh was also not disclosed. 9. The learned counsel submits that the impugned order calls for interference, inasmuch as, once the defendant does not appear in the suit and does not file his written statement and the suit is set ex-parte, then there is no need to substitute such a defendant and bring his legal heirs on record and the petition filed under Order XXII Rule 4(4) of CPC was maintainable. 10. The learned counsel has relied upon the judgment passed by this Court reported in 2014 (1) JCR 430 and the judgment passed by the Hon'ble Supreme Court reported in 2013 (2) CCC 130 (SC) (Sushil Kumar Chakravarty vs. M/s Tej Properties Private Ltd.), paragraph 26. 11. After hearing the learned counsel for the petitioner, this Court finds that it is not in dispute that Nunu Singh was one of the defendants in the suit and the suit was set ex-parte against him and some other defendants. The suit was decreed and the defendants filed 3 appeal, in which Nunu Singh was again made party respondent. The notices were issued to Nunu Singh but on 24.02.2014 it was reported that he had expired. The records reveal that immediately thereafter, a petition was filed under Order XXII Rule 4(4) of CPC seeking exemption from substituting him as he had never filed any written statement nor participated in the suit. 12. The learned court while considering the said petition has erred in law by holding that such a petition was not maintainable as the suit was not a partition suit and that the interest of Nunu Singh could not be said to have been protected by the other respondents in the appeal who were four defendants. The learned court further erred in recording that by that time the petition was filed, the appeal had abated. This is so due to the reason that the suit itself was decided ex-parte, interalia, against Nunu Singh who had neither appeared nor filed written statement in the suit. 13. In the judgment passed by the Hon'ble Supreme Court in the case of Sushil Kumar Chakravarty vs. M/s Tej properties Private Ltd. (supra), the provision of Order XXII Rule 4(4) CPC has been considered and is provided as under. “Order XXII Rule 4 (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before the death took place.” 14. The provision of Order XXII Rule 4(4) of the CPC clearly provides that the court, whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representative of any such defendant who has failed to file written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before the death took place. 4 15. In the present case, said Nunu Singh having not filed written statement and having not contested the suit there was no need to substitute Nunu Singh at the appellate stage. Accordingly, the petition filed under Order XXII Rule 4(4) of the C.P.C. was wrongly dismissed by the impugned order passed by the appellate court. In view of the aforesaid facts and circumstances, this Court finds that the impugned order rejecting the petition under Order XXII Rule 4(4) of CPC cannot be sustained in the eyes of law and is accordingly set- aside. Consequently, the petition filed by the petitioners Order XXII Rule 4(4) of CPC stands allowed. 16. 17. Let a copy of this order be communicated to the court Pending I.A., if any, is closed. concerned through ‘e-mail/FAX’. Rakesh (Anubha Rawat Choudhary, J.) 5