Validity of judge requesting amendment and apc

This query is : Resolved 
 

(Querist)
19 February 2020

Dear Respected Sir,

I Plaintiff had filed OS5854/2016 against 6 of the family (Father, Mother and 4 Major children) for money recovery and cancellation of sale deed of a property due to defendants cheating. The 3rd person of the defendant family’s D3 (Eldest Son) in their written statement and subsequent memo in 2017 filed that he is appearing on behalf of rest of the family by claiming his Father (D1) died also produced death certification.

The case progressed till argument stage, though we (plaintiff) had given Memo of deletion of D1

Judge is asking us (Plaintff) to file Amendment and APC posted stage back to Summons instead of Arguments stage and thus delaying the proceedings.

When all info in prior stages is available for court to verify; is it necessary that we should still submit Amendment and APC, if so what should be content of Amendment OR can we point to Judge since D3 has already mentioned that he is representing on rest of the family hence the case should be posted immediately to arguments.

Even otherwise after submitting Amendment will the judge post of Argument OR will Judge / Defendants still find some frivolous point to delay the proceedings.

Requesting your kind help with detail advice.

Thanks
Stephen


Raj Kumar Makkad (Expert)
19 February 2020

If defendant no. 3 has submitted his power of attorney issues by all other defendants to represent them in the ongoing case then only a formal application seeking substitution of defendant no. 1, since deceased, is required to be made and memo of parties shall change accordingly but no fresh summoning shall be required but if the defendant no. 3 had not produced any authority in his favour then the judge is right and it is a lacuena on the part of the court which can be got corrected at any stage, though, it shall prolong the case but no party can be condemned unheard. The notice to all other legal heirs of deceased is mandatory to be issued.

Stephen (Querist)
20 February 2020

Dear Sir, Many thanks for you response to my query. I would like to seek clarification from your response you have stated the D3 thru power of attorney from rest of the defendants etc. Therefore to obtain clarification I provide below sequence of events in this case.
a) I plaintiff had filed OS5854/2016 in Sep2016.against 6 members of the family. After court issued many summons for defendants to respond
b) On 3Feb2017 defendant No-3 filed written statement to our OS and mentioned D-1 has expired and he D3 on behalf of D2, D4-D6 is filing along with Affidavit
Since at the begining of the same itself D3 has taken responsibility on behalf of rest of the family.. Hence during Argument stage we have filed memo to delete D1. Therefore my question is as the Judge posted for Amendments and APC. Is it necessary for us to file Amendments, Also does the Defendant WS and Affidavit should contain signatures of all other family members.

To alleviate my concern, your further clarification on this will be much appreciated.


Thanks
Stephen

KISHAN DUTT RETD JUDGE (Expert)
20 February 2020

Dear Sir,
You are correct, since Defendant No.3 representing other defendants and he being a legal heir of deceased Defendant No.1 their needs no amendment. You may at the most file a memo stating that amendment of plaint is not necessary and the parties on record are sufficient to proceed.

Raj Kumar Makkad (Expert)
20 February 2020

You failed to respond to my specific query whether apart from the affidavit submitted by defendant no. 3, is there any other document on the file which authorizes him to represent rest of the defendants in the civil suit?

If there is no specific power of attorney of other defendants in favour of defendant no. 3 to represent them in the civil suit, his affidavit shall not absolve the court to summon all other defendants so notice is necessary to be issued to them.

After demise of defendant no.1, the memo of parties is required to be amended legally.

Stephen (Querist)
21 February 2020

Dear Sirs,

Many thanks for both of your responses.

Just to reiterate there are no other documents, except that to protract the case D3 since WS stage onwards has been mentioning in all other docs with its respective affidavits that he is representing on behalf of rest of the family.

In fact a crimial case has also been filed against D1 and D3 wherein police have excluded D2, D4-D6 in chargesheet. In hindsight its the Father and Son are mainly implicated of 420B case and as such all money transaction are on D3.

Hope with above infomation, awaiting your kind clarification with confidence I can approach court/judge.

Thanks
Stephen

Dr J C Vashista (Expert)
21 February 2020

Mr. Stephen,
You did not disclose whether D2, D4, D5 and D6 has also authorised D3 to contest the suit on their behalf as was in the case of D1 ??
Since D1 is stated to have been expired the PoA granted by him in favour of D3 elapsed / came to an end.
However, all LRs of D1 are to be impleaded to substitute him (for his share) by amendment in Memo of Parties before final hearing/ arguments of the suit.

Dr J C Vashista (Expert)
21 February 2020

Civil suit and criminal case are on two different footing, which can not be proceeded together or similarly, so do not mix them.
Criminal case (if any) against deceased shall abate.

P. Venu (Expert)
21 February 2020

First, as the plaintiff, it has been your duty to move appropriate application either to delete D1 from the array party and/or to implead his legal heirs.his legal heirs.

Secondly, other defendant ought to have filed memos to adopt the written statement and pleadings of D3.

T. Kalaiselvan, Advocate (Expert)
24 February 2020

In a civil suit, any of the party to the suit dies and if right to sue survive then the suit can be continued by the heirs or legal representative of the deceased party. If in any case where right to sue does not survive the suit will come to an end. The most essential element which affects the abetment of a suit after the death of party is the survival of right to sue; if that is there then the suit can be continued.
Here the D3 has not produced before court that he will represent other defendants by a GPA deed or any application filed under Order 3 rule 2 seeking permission of court to represent other defendants.
At least he should have filed an affidavit before court stating that all the LRs of the deceased D1 are already on record and there is no new LR to be impleaded as LR of the deceased d1.
However an amendment petition is to be filed to amend i.e., to add the word died against D1 and APC to be carried out.
he procedure will be the same as that was followed in the initial stage

Stephen (Querist)
24 February 2020

Dear Sirs,

Many thanks for providing many legal points to ponder.

As details mentioned in my initial query and subsequent info to my query. I restate the D3 in his / their WS along with affidavit he mentions D1 is dead and that he on behalf of D2, D4-D6 apprearing on behalf of rest of the family. Followed by memo as well to consider WS with D3 representing on behalf rest as well.

So therefore in view of these details already on record for court to verify, and I plaintiff also filed memo to strike D1 name and requested to post the hearing back to arguments. Why still judge is insisting / expecting Amendments and APC to be done. Hence I am seeking your help how to address Judge concern / wrongly directing the proceedings which is further delaying administering justice for the last 6 months.(FYR) I am pasting the WS where D3 claims thru affidavit


Thanks & Regards
Stephen

Raj Kumar Makkad (Expert)
24 February 2020

You are again and again repeating the same query in changed words adding nothing new. One thing is clear that even if all other defendants are summoned, they shall not be allowed to file fresh written statements rather the case shall be posted for the argument i.e. the stage wherein the defendant no. 1 had expired and defendant no. 3 as well as you had filed application seeking change of memo of parties. There is no harm for you if legal lacuna is cured at this stage.



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