Full Judgment
CM No.14323-CII OF2010in/ and -1- CM No.12112-CII of 2010 in/and FAO No.122-M of 2003 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.14323-CII OF2010in/ and CM No.12112-CII of 2010 in/and FAO No.122-M of 2003 Parminder Kaur versus Karanjit Singh Mann Present: Mr.Devinder Pal Soni, Proxy counsel for Mr.A.P.S.Shergill, Advocate, Mr.Arvind Kashyap, Advocate, for the respondent.
Mr.Gagandeep Singh, Advocate for Mr.Ankur Bansal, Advocate for respondent No.2.
******** CM No.14323-CII OF2010 This C.M has been filed on behalf of the appellant for placing on record her reply supported by her affidavit to the application i.e.CM No.12112 CII of 2010 filed by Damanjit Singh Mann son of late Harjeet Singh Mann for impleading the minor daughter of the respondent-huband as a legal representative of the respondent-husband.
The reply attached to the CM as also the affidavit are taken on record subject to just exceptions.
CM stands disposed of.
CM No.12112 CII of 2010 The CM has been filed by Damanjeet Singh Mann- applicant for impleading the minor-daughter of the respondent- Karan Singh Mann as legal representative of the respondent.
Amit Khanchi The name of the minor is not mentioned in the C.M.However, 2014.02.20 15:44 I attest to the accuracy and integrity of this document High Court,Chandigarh CM No.14323-CII OF2010in/ and -2- CM No.12112-CII of 2010 in/and FAO No.122-M of 2003 CM No.1653-CII of 2009 was earlier filed by Damanjeet Singh for impleading the minor daughter of the respondent as legal representative of deceased Karanjit Singh Mann in which her name is mentioned as Harsimran Karan Mann.
In the meanwhile, the appellant-Parminder Kaur also filed an application i.e.CM No.18284 CII of 2009 for impleading mother of the respondent namely Manjit Kaur as legal representative of the respondent.
She was impleaded as such on 10.08.2009.
In view of the fact that the mother of the respondent Manjit Kaur had been impleaded as a party for her son Karanjit Singh Mann-respondent, the earlier CM No.1653-CII of 2009 for impleading the minor daughter Harsimarn Karan Mann was disposed of on 12.10.2009 as the mother of the respondent had already been impleaded as a party.
The applicant then filed CM No.25622-CII of 2009 for recalling the said order dated 12.10.2009.
It was submitted that relations between Harsimarn Karan Mann and her mother(appellant ) were not cordial and there was a clash of interest ; besides, Manjit Kaur (mother of deceased respondent) and Parminder Kaur-appellant (widow of deceased) were hand in glove with each other and had interests adveRs.to that of the minor Harsimran Karan Mann.
However, the said CM25622CII of 2009 for recalling/modifying the order dated 12.10.2009 was dismissed on 06.11.2009.
Amit Khanchi 2014.02.20 15:44 I attest to the accuracy and integrity of this document High Court,Chandigarh CM No.14323-CII OF2010in/ and -3- CM No.12112-CII of 2010 in/and FAO No.122-M of 2003 Now the present CM No.12112-CII of 2010 has been filed for impleading the minor Harsimran Karan Mann as legal representative of the respondent.
It is submitted that initially the mother of the deceased namely Manjit Kaur had instructed the learned counsel for the respondent to defend the case but thereafter, she withdrew her instructions and is not interested in the case.
Manjit Kaur, the mother of the deceased Karanjit Singh Mann (respondent).it is submitted is not interested in defending the case and has refused to file reply to the application for additional evidence.
This would prejudicially affect the rights of the minor.
The estate of deceased Karanjit Singh Mann at present is to devolve on Hasimran Karan Mann the minor daughter and Manjit Kaur-the mother respectively of the deceased Karanjit Singh Mann.
In case the present appeal succeeds, the appellant Paramjit Kaur would also get a share in the property of the deceased which would otherwise not go to her in case the appeal does not succeed.
It, is therefore, submitted that the interest of the minor daughter of the deceased and the appellant are adveRs.to each other.
In the reply that has been filed, which has been taken on record by a separate order passed today it is submitted that the application is actually being filed by the brother of the deceased Karanjit Singh Mann (respondent) by misusing the name of the daughter of the said deceased to serve his own Amit Khanchi 2014.02.20 15:44 I attest to the accuracy and integrity of this document High Court,Chandigarh CM No.14323-CII OF2010in/ and -4- CM No.12112-CII of 2010 in/and FAO No.122-M of 2003 personal interests.
It is submitted that an attempt is being made to make the daughter contest the divorce proceedings between her mother and father, which is not permissible and sustainable in the eyes of law.
A daughter cannot be a party in the present case as the appellant is the natural guardian of her daughter.
The applicant, it is submitted, is a self proclaimed next friend of the minor but in reality the situation is otherwise.
As a matter of fact, when the only contesting legal representative, that is, the mother of the respondent Karanjit Singh Mann has already been impleaded as a party vide order dated 12.10.2009, there is no requirement of appointing another legal represetative.
It is submitted that it has been specifically averred that the mother of the respondent has withdrawn her instructions, which would only mean that the main appeal is to be allowed as not contested.
The brother-in-law of the appellant who is a defacto applicant in the instant application cannot step into the shoes of the respondent or take place of the mother of the deceased, as he has a vested interest adveRs.to the minor.
In case anything happens to the minor all the property vested in the minor would go to him and he wants to control the property of the minor and it is for this basic illegal motive that he is wanting to change places, which is not permissible in the eyes of law.
Moreover, his previous application stands dismissed.
Therefore, he cannot be permitted to file another application.
It Amit Khanchi 2014.02.20 15:44 I attest to the accuracy and integrity of this document High Court,Chandigarh CM No.14323-CII OF2010in/ and -5- CM No.12112-CII of 2010 in/and FAO No.122-M of 2003 is submitted that the respondent Karanjit Singh Mann died on 21.11.2008 and subsequently an application was filed by the appellant herein for impleading the mother of the deceased as a necessary party, which was allowed and she was impleaded as a necessary party.
The mother of the respondent is already a party as she has been impleaded as such, after the death of the respondent.
After a period of 1½ years the present application has been filed with a similar prayer of impleading another party which is not only time barred but is not permissible under the law.
The objection of the appellant is that the mother of the respondent has already been impleaded as a party, therefore, another person cannot be a party.
We have given our thought consideration to the matter.
The daughter of the parties is a legal heir of the respondent Karanjit Singh Mann.
The mother of the respondent namely Manjit Kaur is also a legal heir.
The marriage between the appellant and respondent Karanjit Singh Mann was dissolved by a decree of divorce under Section 13 of Hindu Marriage Act, 1955 by the learned Additional District Judge, Jalandhar on 01.02.2003.
The appellant Parminder Kaur is in appeal against the said decree.
Therefore, in case the other legal heir i.e the daughter of the respondent namely Harsimaran Karan Mann seeks to be impleaded as a party even though the mother of the deceased is already a party, no prejudice would be Amit Khanchi 2014.02.20 15:44 I attest to the accuracy and integrity of this document High Court,Chandigarh CM No.14323-CII OF2010in/ and -6- CM No.12112-CII of 2010 in/and FAO No.122-M of 2003 caused to the appellant.
The issue as to whether the appeal of the appellant is liable to be allowed or not is to be considered and gone into at the time of deciding the appeal.
The outcome of the decision would also determine the status of the appellant as to whether she is the wife of deceased Karanjit Singh Mann.
In case, the appeal is allowed the appellant would be entitled to a share in the properties of her deceased husband Karanjit Singh Mann and in case it is dismissed, the minor daughter of the parties namely Harsimran Karan Mann would get more share.
Therefore, the applicant Harsimran Karan Mann has an interest in the lis.
It has been alleged on behalf of the applicant that the mother of the deceased Karanjit Singh Mann, namely Manjit Kaur has withdrawn the instructions to contest the appeal.
Even if this be untrue, the minor daughter of the parties would still have an interest in the case.
This Court in S.Charanjit Singh versus Bharatinder Singh AIR1988P&H page 123 referred to a Full Bench decision of this Court in Mohinder Kaur versus Piara Singh AIR1981P&H Page 130 wherein it was held that determination of the point as to who is the legal representative of the deceased plaintiff or defendant under Order 22 Rule 5 of the Civil Procedure Code ('CPC'- for short) is only for the purpose of bringing legal representative on record for conducting those legal proceedings and does not operate as res judicata and the inter se dispute between the rival legal Amit Khanchi 2014.02.20 15:44 I attest to the accuracy and integrity of this document High Court,Chandigarh CM No.14323-CII OF2010in/ and -7- CM No.12112-CII of 2010 in/and FAO No.122-M of 2003 representatives has to be independently tried and decided in separate proceedings.
After referring to the said decision it was held that the proper couRs.to follow is to bring all the legal representatives on record so that they vouchsafe the estate of the deceased for ultimate benefit of the real legal representative and this would avoid delay.
Therefore, in view of the said decision in the case of S.Charanjit Singh versus Bharatinder Singh (supra).the minor daughters of the parties can be impleaded as legal representative of the deceased.
In any case the status of the appellant as the wife of the deceased Karanjit Singh Mann is to be determined and gone into on the basis of evidence and material on record.
Therefore, even though the application of the applicant for being impleaded as legal representative of the deceased had been declined earlier, she can be impleaded as one of the legal representatives of the deceased at this stage especially when it is stated that Manjit Kaur-the mother of the deceased has withdrawn the instructions to contest the appeal.
Besides, it is to be noticed that the appellant has also stated that if this is so, then her appeal is to be allowed.
Therefore, it would be in the interest of justice to ensure that the rights of the minor are protected and the case on her behalf is represented by impleading her as a party through a next friend, rather than the appeal being allowed uncontested.
As regards the objection of limitation in filing, the Amit Khanchi 2014.02.20 15:44 I attest to the accuracy and integrity of this document High Court,Chandigarh CM No.14323-CII OF2010in/ and -8- CM No.12112-CII of 2010 in/and FAO No.122-M of 2003 application for bringing the legal representative of the deceased Karanjit Singh Mann on record, it is to be noticed that in view of the amendment of this Court in Order 22 Rule 4 CPC, vide Punjab Government Gazettee, 11.04.1975, Part-II, it has been provided that if within the time limited by law no application is made under sub rule (1).the suit shall not abate as against the deceased defendant and the judgment be pronounced notwithstanding the death and shall have the same force and effect as if had been pronounced before the death took place.
That being so, the question of abatment does not arise and the legal representatives are entitled to be brought on record at any time as held by this Court in Saraswati Devi versus Hazari Lal 1989 PLJ670 Besides, in view of the said amendment to the CPC, there is no limitation for bringing on record the legal representatives of a deceased as held in Sukhdev Singh versus Charanjit Singh 2012 (1) RCR (Civil) 932 (P&H).Therefore, in the facts and circumstances, it would be just and expedient to allow the minor daughter of the parties namely Harsimran Karan Mann also to be impleaded as a party in addition to Manjit Kaur, the mother of the deceased Karanjit Singh Mann (respondent).Accordingly, CM No.12112-CII of 2010 is allowed as prayed for and Harsimran Karan Mann minor daughter of the parties is impleaded as respondent through her next friend and Amit Khanchi 2014.02.20 15:44 I attest to the accuracy and integrity of this document High Court,Chandigarh CM No.14323-CII OF2010in/ and -9- CM No.12112-CII of 2010 in/and FAO No.122-M of 2003 guardian Damanjit Singh Mann as legal representative of deceased Karanjit Singh Mann.
FAO No.122-M of 2013.
On request of learned counsel for the appellant, adjourned to 20.02.2014.
(S.S.SARON) JUDGE2301.2014 (NAVITA SINGH) anil JUDGE Amit Khanchi 2014.02.20 15:44 I attest to the accuracy and integrity of this document High Court,Chandigarh