IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 388 of 2016 Decided on: 26.06.2025 ____________________________________________________ Khalil and others ……….. petitioners Versus Jafar (deceased) through LRS And others ……….respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioners : Mr. Desh Raj Thakur, Advocate. For the respondents : Mr. Gaurav Gautam and Mr. Sahil Dixit, Advocates, for respondents No. 1(a) to 1(e). : None for remaining respondents. ____________________________________________________ Bipin Chander Negi, Judge (oral) By way of the present petition, a challenge has been laid to impugned order dated 24.8.2016 passed by learned Civil Judge (Senior Division) Court No.1, Paonta Sahib, in case No. 122/1 of 2016 titled as Khalil vs. Jafar Deen and it is further submitted that the judgment of remand dated 31.12.2015 is an order of limited remand and does not order a re-trial of the entire suit. 2. The present petitioners and the proforma respondents were the plaintiff before the trial Court. Suit filed by the plaintiff for declaration and permanent prohibitory injunction was 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 decreed by the trial Court. Vide judgment and decree dated 11.6.2014, predecessor-in-interest of present respondent No.1, who was the defendant before the Trial Court preferred an appeal against the judgment and decree dated 11.6.2014. 3. In the appeal so preferred, the only point which came up for consideration is being reproduced here-in-below:- “1. Whether the impugned judgment and decree dated 11.6.2014, passed against dead person named Sakur daughter of Sarajudeen is legally sustainable? 2. Final order.” 4. In this respect, it would be appropriate to refer to relevant extract of the judgment passed by the 1st Appellate Court on 31.12.2015. The same is being reproduced here-in-below for a ready reference:- “17. It is well settled that no decree can be passed in favour of or against a dead person. If a party dies who may be plaintiff or defendant, a proper application under Order XXII CPC has to be filed to bring on record. the legal heirs of the deceased party or deleting that party. But the perusal of record of learned trial court shows that the plaintiffs had not brought the factum of death of the party to the notice of the Court, therefore, decree came to be passed against a dead person. It is also well settled that the factum about the abatement or otherwise of the suit under Order XXII CPC, has to be decided by the Court, where during pendency of the suit or proceedings, the death of a party had occurred. In view of the death certificate filed regarding death of defendant No. 2 Sakur, who is respondent No. 4 in the present appeal and was defendant No. 2 in the suit, it appears that the question about abatement or impleadment of her legal heirs, has to be decided by the 3 learned trial Court. Therefore, for this reason, the impugned judgment and decree passed by the learned trial Court against a dead person, is not sustainable in the eyes of law. Hence, this point is answered in the negative. 18. No other point was urged before me. 19. Keeping in view the aforesaid discussion and findings on point No. I above, the instant appeal succeeds and is, accordingly allowed. Consequently, the judgment and decree of the learned Civil Judge (Junior Division), Court No.2, Paonta Sahib, District Sirmaur, H.P., in Civil Suit No.90/1 of 2007, titled as Khalil Vs. Jafardeen, dated 90/1 of 2007, are set aside and the suit is remanded back to the learned trial Court to consider the effect of abatement under Order XXII CPC, for not impleading the legal heirs of deceased person as mentioned above and thereafter, dispose of the mater afresh, in accordance with law. The parties are directed to appear before the learned trial Court on 28.01.2016 at Paonta Sahib.” 5. From the aforesaid, it is evident that the 1st Appellate Court correctly observed that a judgment and decree passed by the trial Court against a dead person is not sustainable in the eyes of trial. In this respect, it had been noticed that the death of “Sakur” had occurred on 16.6.2013. The suit was filed before the trial Court on 30.7.2007 and arguments were heard on 5.6.2014. Judgment was pronounced on 11.6.2014. Thus, making it clear that “Sakur” had died during the pendency of the suit before the trial Court. 6. Further the 1st Appellate Court was of the view that on account of death of “Sakur”, the question of abatement was to be considered in terms of order 22 CPC by the trial Court, 4 wherein the death had occurred. In the aforesaid facts and attending circumstances, the remand in the case at hand to the trial Court was to consider the effect of abatement under Order 22 on account of not having impleaded legal heirs of deceased “Sakur”. Subsequent thereto, the trial Court had been directed by the 1st Appellate Court to dispose of the matter afresh in accordance with law. 7. Post the aforesaid remand, an application under Order 22 Rule 4(4) CPC was filed by the present petitioners/plaintiffs before the trial Court. A no objection was endorsed on the application so filed by the predecessor-in- interest of respondent No.1/defendant. In view thereof, the petitioners/plaintiffs were exempted from bringing on record the legal heirs of deceased “Sakur”. In this respect, it would be appropriate to reproduce order dated 12.8.2016 passed by the trial Court post remand. The same reads as follow:- 12.8.2016. Sh. H.S. Shah, Advocate, for the plaintiff Sh. S.R. Sharma, Advocate, for defendant No.1 Defendant No.2 already ex parte. In view of no objection of learned defendant counsel as endorsed on the application under Order 22 Rule 4(4) CPC, the plaintiffs are exempted from bringing on record the LR of deceased defendant No.2, who was proceeded ex parte on 13th January, 2009. Amended Head Note be filed accordingly. The defendant No.1 has moved an application for additional evidence. Copy supplied for reply on 22.8.2016. 5 8. Remand of a case by an Appellate Court has been contemplated in three provisions of the CPC namely Order 41 Rule 23, Order 41 Rule 23(A) and Order 41 Rule 25 (a). Order 41 of CPC Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. (b). Rule 23(A) has been inserted in Order 41 which provides for a remand by an Appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power remand under Rule 23(A). (c). The remand contemplated in Rule 25 is limited remand, as in such case the trial Court can try only such issues as are framed by the appellate Court and referred to it for trial, and the trial Court after recording the evidence thereon, is required to return the same to the appellate Court alongwith its findings and reasons. In this respect, reference can be made to authorative pronouncement of the apex Court in P. Purushottam Reddy and another vs. Pratap Steels Limited MANU/SC/0054/2002: (2002) 2 SCC 686. (para 5 thereof) 9. In the case at hand, it is evident that the remand order is specific, it does not order a re-trial nor provides a fresh opportunity to the parties to the lis to litigate and does not permit new pleas to be raised. The contention raised on behalf of a counsel for the respondents that the remand order in the case at hand orders a re-trial, needs to be rejected as the twin conditions to be satisfied in terms of Order 41 Rule 23(a) stated supra have not been satisfied. More so when while setting aside the 6 judgment passed by the trial Court, the 1st Appellate court does not State that a re-trial is necessary. The remand in the case at hand is solely on account of the death of “Sakur” who had died during the pendency of the trial Court on 16.6.2013 and therefore, the 1st Appellate Court was of the view that the issue of abatement was to be decided by the Court wherein the death had taken placed. Reliance placed on (2012) 5 SCC 540 titled Jegannathan vs. Raju Sigamani and another by the learned counsel appearing on behalf of the respondent is misplaced as in the said case, there was a specific direction given to both the parties to lead evidence-oral and documentary and then decide the suit afresh on merits. The relevant extract whereof reads as under:- “3. parties to let in evidence-oral and documentary and then decide the suit afresh on merits.” 10. In my considered view, once post remand application filed on behalf of the petitioners under Order 22 Rule 4 (4) CPC was allowed by the trial court on account of no objection of the respondent/defendant in the case at hand, vide order dated 12.8.2016, the consequences of the death of “Sakur” in the case at hand are self evident from the provisions of Order 22 Rule 4(4). Provisions is being reproduced here-in-below:- ORDER XXII DEATH, MARRIAGE AND INSOLVENCY OF PARTIES. 7 4. Procedure in case of death of one of several defendants or of sole defendant. “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.” 11. From the aforesaid, it is evident that a party which files the written statement but fails to appear & contest the suit then in such a case, the Court may exempt the plaintiff from the necessity of substituting the legal representatives of such defendant and the judgment in such a case can be pronounced against the said defendants notwithstanding the death of such defendant. The judgment so pronounced shall have the same force and effect as if it had been pronounced before the death took place. 12. Besides the aforesaid, the respondent in the case at hand had filed an application under Section 151 CPC read with Order 16 Rule 1 (3) CPC to examine witnesses qua the registration of the Will in the case at hand. The reasons cited previously for not having examined the sub Registrar and registration clerk from the office of the sub Registrar Paonta being that they have now engaged a new counsel who while preparing the case for arguments advised qua examination of the aforesaid witnesses in order to prove the registered Will in the case at hand. 13. In response filed, it was categorically pointed out that the scribe and attesting witness of the Will in the case at hand had already 8 been examined to prove the execution of the Will. The trial Court allowed the application despite holding that the same had been filed at a belated stage. The reason cited for belatedly filing an application i.e. change of counsel was accepted by the Trial Court. The trial Court was further of the view that no prejudice would be caused to the present petitioners. 14. At the very outset, a reference to the order of remand vide judgment dated 31.12.2015 (relevant extract reproduced here-in- above) reflects that the course adopted by the trial Court in allowing the application under Section 151 read with Order 16 Rule 1 (3) CPC was absolutely impermissible. As has been stated supra, the remand in the case at hand was a limited remand. No re-trial had been ordered. Since in the case at hand in order to prove the due execution of the Will, the scribe and attesting witness already stand examined by the respondent/defendant, therefore, the application is definitely not bona fide. Change in counsel is not a valid, reason for permitting the respondent/defendant to produce witness as is being sought. “ No prejudice shall be caused to the other party” is also not a permissible ground in the facts and circumstances of the case at hand, wherein the remand was a limited remand. 15. The tactics seem to be aimed at protracting the trial. The application filed for examining additional evidences needs to be viewed with dis favour as it is an attempt by a litigant to take liberty with the procedure of the Court. After conceding to the application filed under Order 22 Rule 4 (4) CPC, the respondents/defendants in the case at hand have unnecessarily delayed the conclusion of the civil suit. The 9 application filed for adducing additional witnesses lacks bona fides, show lack of diligence. The application is totally frivolous. 16. In view thereof, the impugned order dated 24.8.2016 is quashed and set aside. The order of remand dated 31.12.2015 for the aforesaid reasons is held to be a limited remand qua issues framed therein by the 1st Appellate Court. Pending miscellaneous applications, if any, also stand disposed of. Parties are directed to appear before the trial Court 29th July, 2025. Trial Court to proceed further in accordance with law. (Bipin Chander Negi) Judge June 26, 2025 tarun