IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.299 of 2019 Decided on 06th August, 2025 Krishan Dayal (deceased) through his legal heirs …Petitioners Versus Ganga Ram (deceased) through his legal heirs …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? Yes For the petitioners: Mr. A.K. Sharma, Advocate. For the respondents: Mr. Nitin Thakur, Advocate, for respondent No.2. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioners have prayed for the following relief:- “It is, therefore, most respectfully prayed that this petition may kindly be allowed and the impugned order dated 25.05.2019 (Annexure P-8) passed by the learned Senior Civil Judge, Nadaun, District Hamirpur in CMA No.29/19 in Civil suit No.176 of 2011 titled as Krishan Dayal versus Ganga Ram, may kindly be quashed and set aside and the application under Order 22 Tule 4 CPC read with Section 151 of the Civil Procedure Code and under Section 5 of Limitation Act for condoning the delay for bringing the legal representative of deceased Ganga Ram may kindly be allowed and the suit may kindly restored to its original position in the interest of justice and fair play.” 2 2. The petitioners are aggrieved by the order passed by the learned Trial Court, in terms whereof, an application filed by the petitioner who is the plaintiff before the learned Trial Court under Order 22 Rule 4 of the Civil Procedure Code has been dismissed by the learned Court below. 3. Learned Court has assigned the following reasons while dismissing the application:- “I have heard the submissions of learned counsel for the parties and perused the entire record with painstaking care It is neither in doubt nor in dispute that during the pendency of this suit, defendant Ganga Ram, died on 03.09.2018, This fact is corroborated from the death certificate on record. The present application u/o 22 rule 4 CPC has been filed on 19.01 2019. Thus, definitely this application has been filed beyond the period of limitation as prescribed by article 120 of Limitation Act. However, the reason assigned for delay is that plaintiffs are village rustic persons. They have no knowledge regarding whereabouts of the defendant. Defendant died out of village. Thus, this delay happened. On the other hand, LRs of deceased defendant contended that both the parties are relative of each other. Therefore, it cannot be said that plaintiffs have no knowledge about the death of Ganga Ram. Be that as it may, this court observes that this suit is a suit for permanent prohibitory injunction to restrain the defendant from obstructing the plaintiffs to use the path marked by letters ABCD shown in the site plan. The allegations against the defendant are personal that he tried to block the aforesaid path, despite the compromise before the Gram Panchayat. But, now defendant has been died. Therefore, right to sue against the 3 LRs of deceased defendant does not survive. There were no any allegations against the LRs that they were also causing obstruction in the user of path marked by letters ABCD shown in the site plan. Though LRS inherited the property of the deceased defendant, nevertheless, they did not inherit the person acts which he did during his life time. Hence, respondents/LRs cannot be substituted as defendants merely because they are legal heirs of the deceased defendant. Thus, in this case, doctrine of "Maxim Action Personalias moritus cum persona" is applicable. It means that personal right of action dies with the person, fully applies. Therefore, after the death of wrongdoer i.e. defendant the suit abates. This is the view of Hon'ble High Court of Rajasthan in a case Baldev Parkash Vs. Roop Chand; 1997 AIHC 1890 and Puran Singh Vs. State of Punjab; (1996) 2 SCC 205. Thus, this application u/o 22 rule 4 CPC is not maintainable against the LRs of deceased defendant. Hence, this application is dismissed. Consequently, the suit of the plaintiff against deceased defendant abated due to his death. File after due completion be consigned to Record Room.” 4. Having heard learned counsel for the parties and having perused the impugned order as well as the plaint which is appended with the petition as Annexure P-3, this Court is of the considered view that the impugned order is not sustainable in the eyes of law. 5. The reliefs prayed for by the plaintiff in the Civil Suit pending before the learned Trial Court read as under:- 4 “A) A decree for permanent prohibitory injunction that the plaintiff is entitled to passage as shown with red colour as point ABCD in the site plan which starts from main village path as shown with black colour through the land of the defendant to the old house of the plaintiff and to take water from the taps shown as points E and F in the site plan attached by the plaintiff. The plaintiff has acquired right of passage due to customary right of easement by way of prescription and easement by way of necessity and has been exercising this right as a matter of right since time of his ancestors without any objections and the defendant has got no right to close the said passage at point ABCD as shown in the site plan just to deprive the plaintiff and his family members from coming and going for agriculture purposes and to the old house of the plaintiff as shown with yellow colour in the site plan, hence the defendant, his agents, servants, assignees and his family members be restrained from causing any kind of obstruction in the above said passage comprised in Khata No. 13 min, Khatauni No. 27 min, Khasra No. 1217 area measuring 0-06-69 hectares as per Jamabandi for the year 2003-04 and khata no. 8 min, khatauni no. 22 min, khasra no. 1206 area measuring 0-03-55 hectares as per jamabandi for the year 2003-04 situated at In case the Tika Gandoli Tappa Galore Tehsil Nadaun Distt. Hamirpur HP, (B) In case the defendant succeed in obstructing the aforementioned passage shown with red colour at point ABCD in the site plan and points E and F during the pendency of the suit forcibly detailed in the para No.A above, then suit for mandatory injunction directing the defendant to restore the said passage to its original position be also passed in favour of the plaintiff and against the defendants in the interest of justice and law.” 5 6. In the light of the said reliefs, it cannot be said that the right to sue was not surviving on the legal heirs/legal representatives of the deceased. Further, though, there was indeed delay in filing the application, but then, the delay was not all that substantive that condonation thereof would have had caused any prejudice to the other party. Procedure is the handmaid of justice and intent of the Court has to be to ensure that parties get a chance to put forth their contentions on merit before the Court and not to throttle the said right of the parties by adopting hyper technical approach. Otherwise also, if the learned Trial Court was of the considered view that the application was barred by limitation, then, it ought to have had rejected the application on said count only and there was no occasion for it to make observations on merit. 7. Accordingly, in the light of the above observations, as this Court is satisfied that the impugned order is not sustainable in the eyes of law, this petition is allowed. Order dated 25.05.2019 (Annexure P-8) is quashed and set aside and the proposed legal representatives of the deceased defendants are 6 ordered to be impleaded as defendants by condoning the delay in filing the application. Matter is ordered to be restored to its original number before the learned Trial Court. Parties through counsel are directed to appear before the learned Trial Court on 25.08.2025. This is subject to cost assessed at Rs.10,000/- which shall be paid by the plaintiffs to the defendants on the next date of hearing. It is clarified that in case the cost is not paid by the plaintiffs to the defendants through defendant Tej Nath by way of a demand draft on the next date of hearing, then, this order will become in operational and the order passed by the learned Court below shall become operative. Pending miscellaneous applications, if any, also stand disposed of. (Ajay Mohan Goel) Judge August 06, 2025 (Vinod)