If the estate of the deceased is adequately represented before the Court, there can be no abatement, observed Himachal Pradesh High Court.
The Himachal Pradesh HC on 31st March, 2021 comprising of single bench of Justice Tirlok Singh Chauhan dismissed the review petition challenging the judgment dated 22.08.2019 on the ground that the judgment so passed is a nullity on account of failure of the appellant to bring on record the legal heirs of deceased.
“By medium of this petition, the petitioners have sought review of judgment dated 22.08.2019 passed in RSA No. 38 of 2007 solely on the ground that the judgment so passed is a nullity on account of failure of the appellant to bring on record the legal heirs of deceased defendant Dhani Ram son of Sewak Ram, who was arrayed as respondent No. 7(a) in RSA No. 38 of 2007.”- states the petition.
The learned counsel for the petitioner contended that it is more than settled that a decree passed in favour of a dead person is nullity in the eyes of law.
However, the learned counsels for the respondent submits that,
“As a matter of fact Dhani Ram was not the original party and it was his father Sewak Ram who was party to the suit. Dhani Ram son of Sewak Ram and Pushpa Devi daughter of Sewak Ram had been impleaded as party-respondents after the death of Sewak Ram. It is more than settled that the object of bringing on record the legal representatives of deceased defendant on record under Order XXII Rule 4, is to have the estate of the deceased represented in the suit, which in the instant case is sufficiently represented by other legal representative i.e. Pushpa Devi. It is further contented that since Sewak Ram did not contest the suit by filing a written statement, then his name ought to have been deleted or is deemed to be deleted under the provisions of Order XXII Rule 4 (4) of CPC.”
Taking into account the factual matrix of the present case the bench found it appropriate to reproduce Order XXII, Rule 4 (4) of the Code of Civil Procedure,
"4.Procedure in case of death of one of several defendants or of sole defendant.- (1) to (3) xxx (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 death took place.”
The bench further relied on SC judgments in the cases, Zahirul Islam vs. Mohd. Usman and others (2003) T. Gnanavel vs. T. S. Kanagaraj and another (2009) where,
“it was held that exemption under Order XXII Rule 4 (4) for bringing on record the legal representatives of the deceased defendant can only be prior to the pronouncement of the judgment and not thereafter and once that be so, the judgment of the High Court passed in ignorance of the death is a nullity.”
“However, this entire discussion is still academic in nature as it is more than settled that if the Court is satisfied that the estate of the deceased is adequately represented meaning thereby the interests of the deceased party are properly represented before the Court, there can be no abatement.”- observed the bench.
The bench therefore dismissed the petition on the grounds that it lacks merits and observed that,
“there is no error apparent on the face of the record as the legal representatives of Dhani Ram son of Shri Sewak Ram were not required to be brought on record as he was only representing the estate of Sewak Ram, the original defendant, who had not chosen to contest the suit by filing written statement and his estate otherwise was adequately represented by his daughter Pushpa Devi”
Case title: Ram Lal & Ors v. Jethu Ram & Ors.
Law point: Order XXII Rule 4 of CPC