IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.830/2019 Date of Decision: 20th November, 2025. Mangal Dass .....Petitioner Versus Mehar Chand Mahajan Vidyawati Charitable Trust. ...Respondent Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Ajay Sharma, Sr. Advocate with Mr. Atharv Sharma, Advocate. For the Respondents: Mr. Raman Sethi, Advocate. Bipin Chander Negi, Judge (oral). The present petition has been preferred against the impugned order dated 01.10.2019, whereby an application filed under Section 151 CPC by the present petitioner/defendant for recalling order dated 30.08.2018 has been dismissed and the application filed under Section 151 CPC seeking leave of the Court to implead newly appointed Managing Trustee to represent the respondent/plaintiff, in the case at hand, has been allowed. 2. Heard counsel for the parties, perused the impugned order and the records appended along with the petition. 3. The suit filed by the present respondent/plaintiff before the learned trial Court had been dismissed in default on 12.12.2017. On the very same date, an application for restoration of the suit had been preferred by the counsel 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 appearing on behalf of respondent/plaintiff before the learned trial Court. A reply to the said application was filed by the present petitioner/defendant. The plea taken therein being that since the sole Managing Trustee of the respondent/plaintiff-Trust through whom the suit had been instituted before the learned trial Court had expired on 12.08.2016 and his legal heirs had not been brought on record, therefore, the suit stood abated. 4. After hearing the parties, the trial Court vide order dated 30.08.2018 had allowed the application filed by the respondent/plaintiff seeking setting aside of order dated 12.12.2017, whereby the suit had been dismissed in default. 5. In the aforesaid backdrop, an application under Section 151 CPC was filed by the present petitioner/defendant seeking recall of order dated 30.08.2018. In the same, it was pleaded that on the date of dismissing the suit in default on 12.12.2017, the Managing Trustee through whom the suit had been filed i.e.one Sh. Vikram Mahajan, was not available as he had died on 12.08.2016. His legal heirs had not been brought on record, hence, the suit had abated and in the aforesaid backdrop, order dated 30.08.2018, restoring the suit after 3 recalling of order dated 12.12.2017, was actually an order passed at the behest of a dead person. 6. Other than the aforesaid, it was alleged that an application had been filed for impleading one Sh. Dinesh Kumar, as a plaintiff. The same had been rejected vide order dated 31.12.2016. The said order was never assailed and hence, the same had attained finality. 7. In response, it has been contended by the respondent/plaintiff that the suit, in the case at hand, had been filed by one juristic entity i.e. a Trust. On the death of the trustee, there is no requirement to bring on record the legal heirs, as the suit was filed by the Trust and the same would not abate. It is further contended that after the death of Sh. Vikram Mahajan on 03.10.2016, it is Sh. Vivek Mahajan, who would be representing the Trust. 8. In the aforesaid backdrop, the sole contention urged on behalf of the petitioner/defendant is that after the death of Sh. Vikram Mahajan, the Trustee by whom the suit in the case at hand had been instituted by the respondent/plaintiff-Trust, the suit had abated and hence, the application for restoration of the suit, which had been dismissed in default on 12.12.2017, was not maintainable, as it was filed on behalf of a dead person. 4 9. It is not in dispute that the suit in question had been filed by the Trust through the original Trustee in representative capacity which Trustee admittedly died during the pendency of the suit thus the provisions of Order 22 Rule 10 supra occupied the field in the case of the respondent-Trust. Moreso, in view of the law laid down by the Apex Court in case titled as “Dhurandhar Prasad Singh Vs. Jai Prakash University and Ors.” reported in 2001 (6) SCC page 534, wherein following has been observed and held: “The Legislature while enacting Rules 3, 4 and 10 has made a clear-cut distinction. In cases covered by Rule 3 & 4, if right to sue survives and no application for bringing the legal representatives of a deceased party is filed within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement under Rule 9 on the grounds postulated herein. In cases covered by Rule 10, the Legislature has not prescribed any such procedure in the event of failure to apply for leave of the Court to continue proceeding by or against the person upon whom interest has devolved during the pendency of a suit which shows that the Legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceedings would continue by or against the original party although he ceased to have any interest in the subject of the dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing him on record.” 5 10. Other than the aforesaid, in “G. Christhudas and Another Vs. Anbiah (dead) and others” reported in 2003 volume 3 SCC page 502, the Apex Court has held that a representative suit does not abate on the death of the plaintiff for twofold reasons, firstly the plaintiff does not represent only himself but represents all other persons on whose behalf he is prosecuting the suit, thus all those persons are also parties to the suit albeit constructively, the conduct of the suit being in the hands one person to whom permission has been granted by the court and in case of his death, any other person can continue the suit and secondly the persons represented by the plaintiff cannot said to be “legal representatives of the deceased plaintiff within meaning of Section 2 (11) of Code of Civil Procedure and hence the provisions of order 22 would not apply to such case. The said view has also been taken by the Apex Court earlier in case titled “Charan Singh and Anr. Vs. Darshan Singh and Ors.” reported in 1975 (1) SCC page 298 as also in case titled as “Karuppaswamy and Ors. Vs. C. Ramamurthy” in 1993(4) SCC page 41, wherein the Apex Court has held that on the death of a trustee new trustee (elected or appointed) cannot be said to be a legal representative of the deceased trustee but is a person on whom the interest 6 of the Trust property devolves making the provisions of Order 22 Rule 10 applicable to him. 11. In view of the aforesaid, I see no force in the contention of the petitioner and hence, the same is rejected. Insofar as impugned order dated 01.10.2019, pertains to the impleadment of Sh. Vivek Mahajan, as a Trustee to continue the suit on behalf of respondent/plaintiff, in terms of Order XXII Rule 10 CPC, I see no infirmity in the impugned order in this respect and there is no reason to interfere with the impugned order. 12. In view of above terms, I find no merit in the present petition and the same is dismissed accordingly. Pending miscellaneous application(s), if any, shall also stand disposed of. Parties are directed to appear before the learned trial Court on 10.12.2025. (Bipin Chander Negi) Judge 20th November, 2025 (Gaurav Rawat)