1 2025:CGHC:50866 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 102 of 2016 Dr. Subhash Chandra Soni S/o Late Shri Ram Chandra Soni, Aged About 48 Years R/o Smriti Nagar, Bhilai, Plot No. C-15, Cross Street-3, District Durg, Chhattisgarh. ... Appellant. Versus Dr. Sharad Chandra Agrawal S/o Late Shri Rajiv Lochan Agrawal, Aged About 60 Years R/o Baniyapara, Durg, Chhattisgarh. ... Respondent. For Appellant : Mr. Vinod Kumar Sharma, Advocate. For Respondent : Mr. Alok Bakshi with Ms. Laxmin Tondey, Advocates. SB : Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 13.10.2025 1. This Miscellaneous Appeal has been filed under Order 43 Rule (d) of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC') against the order dated 15.09.2016 passed by the Fifth Additional District Judge, Durg in Civil MJC No.71/2015 rejecting the application filed under Order 9 Rule 13 CPC to set-aside the ex parte decree dated 05.07.2013 passed by the Third Additional District Judge, Durg in Civil Suit No.84-A/2011 [Dr. Sharadchand Agrawal Vs. R.C. Soni (dead) through LR and Ors]. Digitally signed by AJAY KUMAR DWIVEDI DN: cn=AJAY KUMAR DWIVEDI, ou=HIGH COURT, o=HIGH COURT OF CHHATTISGARH, st=Chhattisgarh, c=IN Date: 2025.10.14 16:12:52 +0530 2 2. Necessary facts of the case are that respondent/plaintiff has filed a suit on 14.11.2021 against father of the appellant/defendant, namely, Ram chandra Soni (R.C. Soni) for eviction and vacant possession in respect of Khasra No.536 admeasuring area 1500 sq.ft. and for damages to the tune of Rs.60,000/- and for further damages at the rate of Rs.10,000/- per month till the vacating the suit property which is situated at Village Junwani, Patwari Halka No.15, Smriti Nagar, Tahsil and District Durg. The suit has been filed making averment, inter alia, that the subject suit property was not diverted land. It is further averred that certain other lands of the plaintiff was encroached by members of Smriti Grih Nirman Sahkari Sanstha, namely, Pramod Upadhyaya, L.N. Vishwakarma, S.L. Das, M.L. Gupta, Dr. R. K. Bhuwal, Preetpal Singh, Gopi Niwas. J. B. Satyanarayani, Shri Kiran Tondon and several other persons. So the plaintiff has filed an application for demarcation of land before the Tahsildar, Durg. In the demarcation report dated 07.09.2002, total 24 persons were mentioned as encroachers and subsequently proceedings were drawn against them under Section 250 of the Land Revenue Code by filing application in November, 2003 before Additional Tahsildar, Supela Bhilai. It is further averred that father of appellant, namely, Ram Chandra Soni was not in possession of such land in the month of November, 2003 so no case has been filed against him. However, later on plaintiff found that father of the appellant constructed the house in the suit property in illegal manner, therefore, civil suit has been filed. 3. After institution of the suit, when notice was sent to the respondent it was revealed that father of the appellant, namely, R. C. Soni has already died. Thereafter, the plaintiff has filed an application under Order 1 3 Rule 10 CPC read with Order 6 Rule 17 CPC for impleading legal heir respondent i.e. appellant herein. However, when the notice was sent on such application, the same was refused. Subsequently, the ex-parte proceeding was drawn on 10.09.2012. Later on, the trial Court found that the plaint has not been amended properly and application was filed only for amendment and bringing LRs and made observation in this regard vide order dated 06.11.2012, and again notice was sent on amended plaint through registered as well as ordinary mode. However, the said notice was also refused by the appellant herein and subsequently, ex-parte proceeding was drawn on 17.04.2017 and ultimately ex-parte judgment and decree has been passed on 05.07.2013 in favour of the respondent/plaintiff and against the appellant/defendant. 4. Thereafter, appellant Dr. Subhash Chandra Soni filed an application under Order 9 Rule 13 CPC along with application under Section 5 of the Limitation Act for setting aside the aforesaid ex-parte judgment and decree on the ground that father of the appellant died before the institution of civil suit on 21.02.2011, and therefore, the suit against dead person was not maintainable at all. It was further averred that though there is other legal heirs of late Ram Chandra Soni, namely, Pushpalata Soni, Ku. Sangeeta Soni, Ku. Jyoti Soni and Santosh Chandra Soni, however, they have also not been arrayed as a party in the suit. It was also alleged that appellant has no knowledge about the notice, and summons were not duly served on him and only at the time of execution the notice was received by him and thereafter he came to know about the ex parte decree. It was further averred that father of the 4 appellant has duly purchased the land on 01.02.1985 by way of registered sale deed and after obtaining No Objection Certificate from the Additional Collector, Durg and after becoming the member of Smriti Nagar Grih Nirman Sahkari Samiti Maryadit Bhilai. It was also averred that after obtaining due permission from the competent Authority i.e. Municipal Corporation Bhilai, the house was constructed and in the said house, apart from the appellant, other legal heirs of late Ram Chandra Soni have inherent right, however, they have not been arrayed as a party. But the trial Court by the impugned order dated 15.09.2016 has rejected the said application on the ground that summons have been duly served and that the application has been filed after lapse of 2 years. Hence, this appeal has been filed. 5. Learned counsel for the appellant submits that though the appellant has raised reasonable grounds in the application under Order 9 Rule 13 CPC, however, the trial Court has not considered the same in proper perspective and rejected the application in a mechanical manner which is not justifiable. Therefore, this appeal may be allowed, impugned order and the ex-parte judgment and decree may be set-aside and the civil suit may be restored for hearing on merits in accordance with law. 6. On the other hand, learned counsel for the respondent would support the impugned order as well as the ex-parte judgment and decree and prays to dismiss the appeal. 7. Admittedly, the appellant herein has filed an application under Order 9 Rule 13 CPC for setting aside the ex parte decree by making averment that his father, namely, Shri Ram Chandra Soni has died on 21.02.2011 before institution of the civil suit on 14.11.2011. 5 8. It is well settled law that where suit is brought against a dead person, the plaint cannot be amended by bringing legal heirs on record though suit has been filed, may be, ignoring his death, for the reason that suit against dead person is considered a nullity from the beginning, and further the plaintiff cannot amend the plaint by adding the deceased's legal heirs. Since no valid legal action can be taken against a dead person, the entire proceeding is void, and the court cannot cure this defect by substitution. 9. In the present case, the application was filed not for any independent cause of action against the appellant herein but the application was filed for bringing legal heirs on record under Order 1 Rule 10 read with Order 6 Rule 17 CPC. The said application itself was not maintainable under the law. Further, the plaintiff has not amended its suit suitably though after coming to know fact that a cause of action still survives against the appellant herein but the plaint has not been amended though there is no bar to file a fresh suit, if any cause of action and limitation survives. However, the said aspect has been ignored by the learned Court below. 10. Considering the aforesaid facts and settled principles, this Court finds that the Court below has committed legal error by passing the ex-parte decree in the suit which was filed against the dead person. 11. Accordingly, the impugned order dated 15.09.2016 passed in MJC No.71/2015 as well as the ex-parte judgment and decree dated 05.07.2013 passed in Civil Suit No.84-A/2011 by the Third Additional District Judge, Durg are hereby set-aside. 6 12. The civil suit is restored to its original number for deciding the same in accordance with law. 13. The parties are directed to appear before the concerned trial Court on 18.11.2025. 14. The respondent/plaintiff is at liberty to take appropriate steps in accordance with law, if so advised. 15. With the aforesaid direction, this appeal is allowed. Sd/- (Deepak Kumar Tiwari) Judge Ajay