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1964 DIGILAW 36 (PAT)

Bahela Kuer v. Garjan Rai

1964-02-14

R.K.CHOUDHARY

body1964
Judgment R.K.Choudhary, J. 1. This Civil Revision application by defendant No. 2 (a) is directed against the order of the learned Additional Subordinate Judge, First Court, Arrah, refusing to transpose her to the category of the plaintiff in the suit out of which this application arises. 2. Moti Kuer, the deceased plaintiff in the suit, and the petitioner, Bahela Kuer, are the daughters of one Ramyad Rai, whose widow, Mosammat Phulesara Kuer, was defendant No. 2, Ramyad Rai had one more daughter, Usafir Kuer, who died leaving a son, Garjan Rai, defendant No. 1. It appears that, on the 6th of June, 1953, the plaintiff Moti Kuer and her mother, Phulesara Kuer (defendant No. 2), executed a deed of bakhshishnama-cum-surrendernama in favour of defendant No. 1. The plaintiff Moti Kuer, thereafter instituted the suit, out of which the present application arises, for a declaration that the said deed of bakshishnama-cum-surrendernama was invalid and inoperative, and that a compromise decree, in Title Suit No. 78/22 of 1953/54, is also invalid and inoperative and they are not binding on her. Subsequent to the filing of the suit, defendant No. 2 Phulesara Kuer died on the 2nd of September, 1960. On the 12th of November, 1960, the plaintiff Moti Kuer filed an application for substitution of her name as also the name of her sister, defendant No. 2 (a), in place of the deceased defendant No. 2 Phulesara Kuer, as being her heirs and legal representatives. That application was allowed on the 14th of December, 1960, as a result of which the plaintiff Moti Kuer remained on the record as the plaintiff and her sister, Bahela Kuer was added as defendant No. 2 (a) in the suit. The name of the deceased defendant No. 2 Phulesara Kuer was expunged. The newly added defendant No. 2 (a) filed a written statement supporting the claim of the plaintiff. On the 27th of August, 1962, the plaintiff Moti Kuer also died. On the 14th of September, 1962, one Satyadeo Rai (opposite party No. 4 to this Court) filed a petition for his substitution in place of the deceased plaintiff as being an agnate of her husband. On the 10th of December, 1962, defendant No. 1 filed an application objecting to the substitution of opposite party No. 4 and claiming that his sons and heirs were the heirs and legal representatives of the deceased plaintiff. On the 10th of December, 1962, defendant No. 1 filed an application objecting to the substitution of opposite party No. 4 and claiming that his sons and heirs were the heirs and legal representatives of the deceased plaintiff. On the 17th of December, 1962, defendant No. 2 (a) Behela Kuer filed an application that she, being the sister of the deceased plaintiff, was her heir and prayed that she may be transposed to the category of the plaintiff in place of the deceased plaintiff. It was held by the learned Additional Subordinate Judge that neither Satyadeo Rai, opposite party No. 4, nor the sons and heirs of defendant No. 1 were the heirs and legal representatives of the deceased plaintiff and that defendant No. 2 (a) was her legal heir. Since, however, she did not make an application for her being substituted in place of the deceased plaintiff within the time allowed by law, the suit abated and, therefore, she could not be transposed to the category of plaintiff. He, accordingly, rejected the prayer of the petitioner and, holding that the suit had abated as a whole, dismissed the same. Being thus aggrieved, the present application has been filed by the defendant No. 2 (a) in this Court. 3. Counsel for the petitioner has contended that, on the facts and in the circumstances of the case, it was not at all necessary for the petitioner to make an application for substitution within the period of limitation. It has been contended that the petitioner and defendant No. 1 Garjan Rai could only be the legal heirs and legal representatives of the deceased plaintiff, both of whom were already on the record, though in the capacity of defendants. An argument has been advanced that where all the heirs and legal representatives of a decased party are already on the record in any capacity there is no abatement and no application for substitution need be made within the time allowed by law. The submission is well-founded and must prevail. An argument has been advanced that where all the heirs and legal representatives of a decased party are already on the record in any capacity there is no abatement and no application for substitution need be made within the time allowed by law. The submission is well-founded and must prevail. A Bench of this Court, to Barmeshwar Nath Prasad Singh V/s. Babu Kuer Rai, First Appeal No. 398 of 1959, D/- 9-8-1963 : ( AIR 1964 Pat 116 ), after examining the various Decisions, has laid down that where all the heirs and legal representatives of a deceased party are already on the record in any capacity there is no necessity for filing an application for their substitution. That being so, the order of the learned Subordinate Judge refecting the application for transposing the petitioner to the category of the plaintiff is based on an error of jurisdiction. There being no abatement of the suit, there was nothing an law to prevent the petitioner from being transposed to the category of the plaintiff on the death of the sole plaintiff. 4. Counsel for the defendant No. 1 -- opposite party No. 1 had, on the face of this decision, to concede that there was no abatement of the suit and the order of the learned Subordinate Judge rejecting the application of the petitioner on the ground of abatement could not be supported. He has, however, taken a point that the ultimate order of the Court made in the impugned order is that the suit had abated and it was, therefore, dismissed. The order of abatement of the suit as well as the order of dismissal on the ground of abatement amount to a decree against which an appeal lay before the District Judge. The petitioner, not having preferred an appeal before the District Judge, could not maintain an application in revision in this Court. For this proposition, he has relied on a Bench decision of this Court in Hare Krishna Mallik V/s. Narsingh Das, AIR 1935 Pat 121, in which it was held that where it was possible for a party to appeal against the decision of the appellate Court and they did not appeal, they could not agitate the matter which they might have agitated in appeal by preferring an application in revision. That was a case where an appeal lay to the High Court, but no appeal was preferred and the question that could have arisen in the appeal, if so preferred, was sought to be agitated in the revision application. To such a case, Sec.115 of the Code of Civil Procedure, in term, does not apply. That case has, therefore, no application to the facts here, in which an appeal lay, not to the High Court, but before a Court subordinate to it. 5. Sec.115 of the Code of Civil Procedure lays down that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in, which no appeal lies thereto. The expression "in which no appeal lies thereto" means "in which no appeal lies to the High Court". Therefore, if the appeal lies to a Court subordinate to the High Court, there is no bar to the application of this section for entitling the High Court to revise any order, if the conditions mentioned in that section are fulfilled. This view gains support from a decision of this Court in Tipan Prasad Singh V/s. Secretary of State, AIR 1935 Pat 86. In that case it was definitely pointed out that Sec.115 of the Code of Civil Procedure provides that the High Court may act under that section in a case which has been decided by a Court subordinate to it and in which no appeal lies to the High Court, It was further pointed out that the said section does not provide that the High Court cannot interfere in a case where an appeal lies to an inferior Court. Consequently, it was held that where the plaintiff had not filed an appeal to the District Judge which remedy he had from an order of the Subordinate Judge rejecting a plaint, the High Court could interfere in revision, 6. The above contention raised on behalf of opposite party No. 1 can also be rejected on the ground that, when the foundation of the order of dismissal of the suit is based on a finding which the High Court holds to have been reached by error of jurisdiction, the subsequent order itself falls on setting aside of that finding. The above contention raised on behalf of opposite party No. 1 can also be rejected on the ground that, when the foundation of the order of dismissal of the suit is based on a finding which the High Court holds to have been reached by error of jurisdiction, the subsequent order itself falls on setting aside of that finding. In this case, as already observed, there was no abatement of the suit and the order rejecting the prayer of the petitioner to be transposed to the category of plaintiff was passed due to error of jurisdiction. That portion of the order, therefore, has to be set aside; and if that portion is set aside, the foundation of the subsequent portion of the order with regard to the dismissal of the suit ceases to exist. In other words, the order refusing to transpose the petitioner to the category of plaintiff having been set aside, the subsequent order dismissing the suit on account of abatement automatically stands set aside. The above, view gains support from two decisions of this Court, namely, Ramjee Ojha V/s. Basudeva Charya, Civil Revn. No. 1311 of 1961, D/- 17-12-1962 (Pat), and Borhan Sahu V/s. Ramdhari Poddar, Civil Revn. No. 612 of 1961, D/-23-1-1963 (Pat). In the first case, the Court below permitted the plaintiff to amend the plaint as a consequence of which it was held that the suit was beyond the pecuniary jurisdiction of that Court and the plaint was directed to be returned to the plaintiff for presentation to the proper Court. An appeal lay to the lower Appellate Court against the order directing the return of the plaint; but, without filing an appeal in that Court, the plaintiff filed a civil revision application in this Court. It was contended in this Court that the civil revision could not be entertained by reason of the fact that an appeal lay to the lower Appellate Court, but no appeal had been filed. It was contended in this Court that the civil revision could not be entertained by reason of the fact that an appeal lay to the lower Appellate Court, but no appeal had been filed. It was held that the order allowing the plaintiff to amend the plaint was revisable by this Court in an appropriate case and there was no bar to entertaining the revision application under the provisions of Sec.115 of the Code of Civil Procedure and setting aside the order of the learned Munsif in its entirety including his order by which the plaint had been ordered to be returned to the plaintiff for presentation to the proper Court. It was pointed out in that case that the order was a composite one and the main part of the order allowing amendment of the plaint could be revised by this Court, and if it was revised, then the subsequent order returning the plaint would fall ipso facto. The same view was reiterated in the second case also. 7. As a result of the discussion of the subject under consideration, I hold that the civil revision application is maintainable and the entire order of the learned Additional Subordinate Judge refusing to transpose the petitioner to the category of the plaintiff and dismissing the suit on account of abatement is liable to be set aside. 8. The result, therefore, is that the application is allowed, the entire order of the learned Additional Subordinate Judge, dated the 7th January, 1963, is set aside and it is directed that the petitioner be transposed to the category of plaintiff. The suit will now proceed in due course. The petitioner is entitled to her costs. Hearing fee Rs. 50/-.