( 2025:HHC:20684 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 350 of 2024 Reserved on: 20th June, 2025. Date of decision:30th June, 2025 Bhupinder Pal …Appellant Versus Roshan Lal & others …Respondents Coram The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? Yes For the Appellant: Mr. Devender K. Sharma, Advocate. For the Respondents: Respondents No.1(i) and 1(ii) are already ex-parte vide order dated 19.3.2025 Mr. G.R. Palsara, Advocate for respondent No.2. Vivek Singh Thakur, Judge This appeal has been preferred by appellant/plaintiff under Section 104 read with Order 43 Rule 1(u) of Code of Civil Procedure against order dated 3.9.2024 passed by the District Judge in Civil Appeal No. 63 of 2023 titled Roshan Lal and others vs. Bhupinder Pal, whereby judgment and decree dated 18.10.2023 passed by the Civil Judge, Court No.2, Mandi, District Mandi in Civil Suit No. 195-I/17 of 2012 titled Bhupinder Pal vs. Roshan Lal and others has been set aside on the ground that said judgment was passed against a dead person and thus was a nullity, and matter has been remanded to the Trial 2 ( 2025:HHC:20684 ) Court with direction to decide the matter afresh in accordance with law and as per observations made in the impugned judgment. 2 For convenience, parties are being referred, here-in-after, as per their status in the civil suit i.e. plaintiff and defendants. 3 The record of the Courts below has been requisitioned. I have heard learned counsel for parties and have also gone through record. 4 Plaintiff had filed a civil suit, for permanent prohibitory injunction and mandatory injunction as well as for possession of second floor of the suit premises, against defendants Roshan Lal, Dharam Pal and Yogesh Kumar @ Yogi. Defendant No.3 Yogesh Kumar @ Yogi is son of Roshan Lal (defendant No.1). 5 Defendant No.1 Roshan Lal was proceeded ex-parte vide order dated 26.7.2023. 6 The civil suit was decreed by the Trial Court by passing a decree for vacant possession of first floor along with varandah situated in the suit land with consequential relief of permanently restraining the defendants from causing any type of interference in suit premises. 7 During pendency of suit, defendant No.1 Roshan Lal had expired on 24.12.2017. Whereupon, the plaintiff had moved an application CMA No. 36 of 2018 on 15.3.2018 for substitution of Roshan Lal through his legal heirs namely Praveen Sharma, Yogesh Kumar @ Yogi and Hem Lata (sons and daughter of Roshan Lal). 3 ( 2025:HHC:20684 ) 8 On 30.11.2018, no objection was communicated on behalf of surviving defendants and application was allowed and disposed of on the same day. 9 Yogesh Kumar @ Yogi son of Roshan Lal was already on record as defendant No.3. Therefore, Praveen Sharma and Hem Lata were added as party/defendants No.1(i) and 1(ii). In sequel thereto, as ordered, amended memo of parties was filed on 27.7.2019. 10 From the record, it is apparent that in judgment dated 18.10.2023 passed in Civil Suit, defendant Roshan Lal has been reflected as party/defendant No.1, without reflecting his substitution through his legal heirs, depicting that judgment was passed against defendant No.1 Roshan Lal along with other defendants. However, at the same time, it is noteworthy that in decree sheet prepared on the same day, in the memo of parties, Roshan Lal has been recorded as under:- “Bhupinder Pal……. vs. 1. Roshan Lal (since dead) through his LRs:- (i) Sh. Praveen Sharma, S/o Late Sh. Roshan Lal, R/o H.No.89-A, Ward No.3, Pungh, PO Chatrokhari,Tehsil Sunder Nagar, District Mandi, H.P. (ii) Smt. Hem Lata, D/o Late Sh. Roshan Lal, and W/o Sh. Yashodha Nand, R/o Village Tandu, PO Tandu, Tehsil Sadar, District Mand, H.P. 2……….” 4 ( 2025:HHC:20684 ) 11 It is also apt to record that defendants No.1(i) and 1(ii) were duly served in the Civil Suit and they were duly represented by Advocates namely Shri Vinayak Sharma and Shri Hukam Singh Thakur, who had filed power of attorney on their behalf on 30.11.2018. However, in the details of the counsel of parties, reflected in memo of judgment passed by the Trial Court, defendant No.1 has been reflected as ex-parte on 26.7.2023, but without reflection of names of Praveen Sharma and Hem Lata and also names of their Advocates despite the fact Praveen Sharma and Hemlata were being represented by Advocates namely Mr. Vinayak Sharma and Mr. Hukam Singh Thakur. 12 District Judge in the impugned order, in paras 19 and 23, has observed as under:- “19. In the instant case, there is absolutely no denying fact that Sh. Roshan Lal, had been figured in the impugned judgment dated 18.10.2023, passed by learned Civil Judge, Court No.2, Mandi in Civil Suit No. 195-I/17/12 (Computer Reg. No. 10944/2013). It is apposite to mention that the defendant namely Sh. Roshan Lal figured at Sr. No.1 in the array of the parties in the impugned judgment dated 18.10.2023. My attention was drawn to the order dated 30.11.2018 passed by learned Civil Judge,Court No.2, Mandi, whereby the application instituted under Order 22 Rule 4 C.P.C. was allowed in view of no objection, whereby the legal representatives namely Sh. Parveen Kumar son of late Sh. Roshan Lal, Yogesh Kumar @ Yogi son of late Sh. Roshan Lal (defendant No.3) and Smt. Hem Lata daughter of 5 ( 2025:HHC:20684 ) late Sh. Roshan Lal were allowed to be brought on record in place of defendant No.1 late Sh. Roshan Lal. It is also proved to the satisfaction of the Court that Roshan Lal son of Sh.Puran Chand figured at Sr. No.1 in the impugned judgment died on 24.12.2017. The figuring of the name of the deceased defendant in the impugned judgment dated 18.10.2023, clearly depicts that the impugned judgment was passed against a dead person. However, from the perusal of the record, it transpired that amended memo of the parties was already placed on record, which was filed on 27.07.2019, as reflected from the order sheet dated 27.07.2019.The judgment passed against the dead person is complete nullity. …… 23. This apart, there is one glaring aspect of the case that the defendant Yogesh Kumar @ Yogi examined himself by tendering into evidence his proof affidavit (DW1/A). However, the affidavit was merely exhibited (DW1/A), but not tendered into evidence by way of examination-in-chief. Therefore, the statement of Yogesh Kumar @ Yogi has not been recorded properly by the learned trial Court.” 13 I fail to understand that once District Judge has noticed, as recorded in para 19 of impugned order, that vide order dated 30.11.2018, defendant Roshan Lal had been substituted through his legal heirs by filing an application by plaintiff under Order 22 Rule 4 CPC and amended memo of parties was filed on 27.7.2019, then on what basis he arrived at 6 ( 2025:HHC:20684 ) conclusion that judgment and decree was passed by the Civil Judge against a dead person and thus was a nullity. 14 It is also apt to record that an appeal is preferred against decree. In decree sheet, defendant No.1 Roshan Lal, in the memo of parties, as noticed supra, has been reflected as dead with substitution of his legal heirs Praveen Sharma and Hem Lata as defendants No.1(i) and 1(ii). 15 Therefore, in aforesaid facts, any prudent person, even a slightly alert person, could have arrived at a conclusion that there was ministerial mistake about detail of parties and in the detail of counsel of parties in memo of parties in judgment dated 18.10.2023 but judgment, by the Trial Court, was not passed against a dead person because all parties at the time of judgment were alive as dead person i.e. defendant No.1 had already been substituted though his legal heirs during pendency of suit. Not only this, after substitution, newly added defendants No.1(i) and 1(ii) were also served and they were being represented through Advocates namely Mr. Vinayak Sharma and Mr. Hukum Singh Thakur who had filed power of attorney on behalf of these defendants. 16 Appeal on behalf of defendants was filed through Mr. Hem Chand Sharma, Advocate who was representing defendants No.2 and 3 in the Trial Court and thus, he remained associated in proceedings before the Trial Court. He was having knowledge about death of Roshan 7 ( 2025:HHC:20684 ) Lal as well as his substitution through his legal heirs before the Trial Court. But he did not disclose the said fact at the time of filing the appeal before the District Judge or even at the time of addressing the arguments in appeal before District Judge. It is also a fact that defendant No.3 Yogesh Kumar @ Yogi is son of defendant Roshan Lal. He was also well aware about death of his father and substitution of his father through his legal heirs who are his brother and sister. 17 Despite being well acquainted with the death of Roshan Lal and his substitution through his legal heirs, the appeal was preferred on behalf of Roshan Lal and other two defendants by mentioning in the memo of parties as under:- “1. Roshan Lal son of Sh. Puran Chand son of Sri Dev; 2. Dharam Pal son of Shri Puran Chand son of Sri Dev; 3. Yogesh Kumar @ Yogi son of Roshan Lal; All resident of House No. 28/9, Mohalla Bhagwahan, Mandi Town, District Mandi H.P. …...Appellants vs. Bhupinder Pal……….” 18 It is apparent that appeal before District Judge was preferred on behalf of dead person. Record reveals that in the Vakalatnama filed with the said appeal, appellants were mentioned as Roshan Lal, Dharam Pal and Yogesh Kumar @ Yogi. The Vakalatnama was signed by Dharam Pal and Yogesh Kumar as appellants and accepted by three Advocates representing them, as mentioned in Vakalatnama i.e. Hem Chand Sharma, Samriti Sandal and Pavinder Kumar. 8 ( 2025:HHC:20684 ) 19 Signatures of Roshan Lal are not on Vakalatnama. In memo of parties of the judgment of Trial Court, filed with appeal before District Judge, defendant No.1 Roshan Lal has not been reflected as substituted through his legal heirs, however, in decree sheet he has been shown as “dead” and substituted through his legal heirs. Despite aforesaid, concerned Civil Ahalmad had submitted his report that appeal was in order and power of attorney, filed with appeal, was also proper. 20 The Civil Ahalmad has failed to perform his duty properly as at the time of scrutiny, he would have compared the memo of parties of appeal with judgment as well as decree. Had such exercise been done by him, he must have noticed that Roshan Lal was dead at the time of filing of appeal and was shown substituted through his legal heirs in the decree sheet and at that very moment, he should have returned the appeal or should have mentioned it in his office report for placing the appeal before the District Judge. 21 In fact, the judgment and decree passed by the Trial Court was not against a dead person but District Judge entertained an appeal filed by or on behalf of a dead person. The Advocates who had filed the appeal by reflecting Roshan Lal as appellant No.1, despite having knowledge about the death of Roshan Lal during the pendency of suit, have also committed a misconduct by misrepresenting to the Court and concealing the material fact for obtaining impugned order in favour of defendants on false ground. Defendants Dharam Pal and Yogesh Kumar 9 ( 2025:HHC:20684 ) are also party to aforesaid mischief committed, by and on behalf of defendants, in person as well as through their counsel. 22 In para 23 of impugned order reproduced supra, the District Judge has commented that affidavit in examination-in-chief of Yogesh Kumar @ Yogi was not tendered in evidence by the said defendant as Ext.DW1/A. Therefore, statement of Yogesh Kumar @ Yogi was not recorded properly by the Trial Court. It appears that District Judge did not notice the order dated 17.3.2023 passed by the Trial Court wherein filing of evidence by way of affidavit of defendant No.3 in the Court by supplying the copy thereof to the plaintiff was recorded. Thereafter, suit was adjourned for cross-examination of the said defendant witness on 25.4.2023 and time for leading evidence of other defendant witnesses was also granted subject to payment of cost of Rs.500/-. 23 Thereafter, DW1 Yogesh Kumar present in Court was examined and discharged. In any case, Yogesh Kumar @ Yogi was defendant and it was for him to place on record his examination-in-chief in accordance with law. This fact and lapse, if any on the part of defendant, can never be used against plaintiff for setting aside decree passed in his favour. Rather, in case examination-in-chief of Yogesh Kumar on affidavit Ext.DW1/A is to be considered inadmissible for want of placing on record it in proper manner, the defendants only have to suffer consequences, but for that lapse, plaintiff cannot be made to suffer. 10 ( 2025:HHC:20684 ) 24 With aforesaid observations and discussion, I am of the considered opinion that the District Judge has committed illegality and serious material irregularity resulting into perversity by passing the impugned order and remanding the matter to the Trial Court for fresh adjudication. 25 It is also beyond imagination that a dead person was made appellant No.1 by Advocates because an appeal by Advocates can only be filed on behalf of a person after receiving instructions from the said person. How and in what manner as well as by which means, learned counsel filed the appeal on behalf of Roshan Lal after receiving necessary instructions from him. 26 It is also noticeable that the District Judge derived the conclusion that judgment passed by the Trial Court was against a dead person, only on the basis of memo of parties, supplied with certified copy of judgment passed by the Trial Court but ignoring the memo of parties mentioned in decree sheet as well as the fact of substitution of deceased defendant during pendency of trial, which was also noticed by him as recorded in para 19 of impugned order quoted supra. However, he himself failed to notice that defendant Roshan Lal was appellant before him as appellant No.1 in the appeal preferred by defendants. It is also beyond comprehension that how and in what circumstances, the appeal by a dead person was filed and was entertained by the District Judge. 11 ( 2025:HHC:20684 ) 27 Accordingly, impugned order (though wrongly mentioned as judgment) dated 3.9.2024 passed by the District Judge is set aside along with decree and matter is remitted back to the District Judge to decide the appeal preferred by the defendants afresh in accordance with law in the light of observations made here-in-above and also considering the issue as to whether a dead person can prefer an appeal or not. 28 In aforesaid facts and circumstances, record of the first Appellate Court be sent to the District Judge, whereas record of the Civil Suit be sent immediately to the Trial Court with direction to carry out the necessary correction in its record in the memo of parties of Civil Suit as well as in judgment dated 18.10.2023 and thereafter to remit the record to the District Judge preferably within 15 days of receipt of record. Whereafter the District Judge shall decide the appeal afresh in accordance with law after affording opportunity of hearing. Appearing parties are directed to appear before the concerned District Judge on 21st July, 2025. 29 Defendants, in case, are interested to pursue the appeal before the first Appellate Court are also permitted to take necessary steps on or before 21.07.2025 for maintaining the appeal as legally constituted in accordance with law. 30 The Presiding Officers as well as staff of the Judiciary and the Advocates are expected to act with due diligence and care to avoid unwarranted situations. 12 ( 2025:HHC:20684 ) 31 It has been noticed invariably that in large number of cases, though parties expired before the Trial Court have been substituted through their legal heirs/legal representatives or deleted, but the said parties are not being reflected as substituted/deleted, rather unamended memo of parties is being supplied with or typed in the final order/Award/judgment passed in the matters. Perhaps, it happens for not following the necessary norms/practice of carrying out necessary amendments/entries/changes in original memo of parties filed with original petition/plaint with red ink by the Court through the staff i.e. Reader or Ahalmad or Dealing Hand. Such practice/norms, in addition to filing of amended memo of parties, by the parties shall be adhered to avoid such glaring mistakes causing wastage of time. 32 Registrar (Vigilance) is directed to issue necessary instructions to District Judiciary in this regard with caution to be careful in future and repetition of such lapse shall invite appropriate action. Accordingly, the appeal is allowed in aforesaid terms. Pending miscellaneous application(s), if any, also stand disposed of. (Vivek Singh Thakur), Judge. 30th June, 2025 (MS)