BALKISHAN CHATURVEDI Vs. RAMSINGH

JUDGEMENT

(1.) THIS revision application is filed against order dated 27.3.20.04, by which trial Court rejected the application of the petitioner dated 14.12.2001 in which petitioner prayed that after the death of sole defendant, the suit abates.

(2.) THE facts of the case is like this, the respondent No. 1-plaintiff filed a suit for declaration and permanent injunction against the defendant Gajendra Nath in the year 1998 i.e. on 5.10.1998. The sole defendant Gajendra Nath died on 25.8.1971 i.e. much prior to the filing of the civil suit. During the pendency of the civil suit respondent No. 1-plaintiff filed an application for amendment under Order 6 of Rule 17 of Code of Civil Procedure and prayed that names of the legal representatives of Gajendra Nath be impleaded. The respondent No. 1 came to know about death of Gajendranath on 20.1.2000 through patwari.

(3.) IT is not disputed by the respondents No. 1 and 2 that suit was filed on 5.12.1998 against the dead person. It is well settled law that Order 22.of Rule 4 of Code of Civil Procedure will not apply if death of the sole defendant will occur before the institution of the suit. The civil suit against the dead person cannot be deemed to be a proper suit. The Order 22 of Rule 4 of Code of Civil Procedure will applicable only to those cases where one of the sole defendant died during the pendency of the proceeding. The learned counsel for petitioner relied a decision reported in 2000 (2) JLJ 401 = 2001 (II) MPJR 307 = 2000 (3) MPLJ 412 Smt. Agrawal Devi (widow of G.S. Agrawal) and others v. Arya Vidhya Sabha and another. It was held that if a defendant dies before the institution of the suit, the provisions of Order 22 Rule 4 will not apply. The legal representatives of sole defendant cannot be brought on record by way of amendment. The entire proceedings is null and void. The suit filed against dead person cannot be deemed to be proper suit.