Laxman Das v. Board Of Revenue — 1985 DIGILAW 147 (ALL)

JUDGMENT : K.P. Singh, J. This writ petition arises out of a suit for declaration and partition u/s 229-B/176 of the U.P. Zamindari Abolition and Land Reforms Act (See Annexure I attached with the writ petition). The Plaintiff opposite party No. 3 in the present writ petition had filed the suit claiming 1/3rd share in the disputed land. The Defendants Petitioner bad contested the claim of the Plaintiff opposite party. The suit was dismissed by the trial court on 3-5-1976. During the pendency of the First Appeal it appears that Jaggi died on 24-9-1976. An application for impleading the heirs of Jaggi was filed on 26-7-1977 which appears to have been rejected on 28-9-1977. The appeal was also abated on 28-9-1977 as is evident from Annexure IV attached with the writ petition. Thereafter the Plaintiff opposite party preferred a second appeal which has been allowed by the second appellate court through its order dated 29-5-1982. Aggrieved by the judgment of the second appellate court the Defendants Petitioners have approached this Court under Article 226 of the Constitution. 2. The learned Counsel for the Defendants-Petitioners has contended before me that the second appellate court has patently erred in applying the amended provisions of Order 22 Rule 4 of the CPC to the facts of the present case. According to him unamended provisions of the CPC would apply to the facts and circumstances of the present case. 3. Second contention raised on behalf of the Petitioner is that the Second Appellate Court has patently erred in holding that the deceased Jaggi was a proforma Defendant, hence the appeal before the first appellate court could not abate. 4. The learned Counsel for the contesting opposite party has tried to support the impugned judgment of the second appellate court. He has also invited my attention to the provisions of Section 97(2)(r) and (3) of Act No. 104 of 1976 whereby the provisions of the Civil Procedure Code, 1908 have been amended. It has been contended on behalf of the opposite party that the order of abatement had not been passed in the appeal before the commencement of Act No. 104 of 1976, hence the Second Appellate Court was fully justified in passing the impugned order. 5. It has been contended on behalf of the opposite party that the order of abatement had not been passed in the appeal before the commencement of Act No. 104 of 1976, hence the Second Appellate Court was fully justified in passing the impugned order. 5. The learned Counsel for the Petitioner has submitted in rejoinder that in the facts and circumstances of the present case the abatement had taken place due to death of Jaggi Defendant Respondent before the First Appellate Court much before the amendment Act of 1976 which became enforceable on 1-2-1977. He has also emphasized that Jaggi deceased was a necessary party and that he had not transferred his right to the Defendants Petitioners and this aspect of the matter has been misunderstood and misconstrued by the Second Appellate Court. 6. I have considered the contentions raised on behalf of the parties. It is well known by now that specific order of abatement in writing is not necessary. The abatement of the suit or appeal is automatic if steps for substitution of the heirs of the deceased party are not taken within the prescribed time by the Plaintiff or the Appellant. In the present case Jaggi had died on 24-9-1976, An application for condonation of delay and substitution of heirs of Jaggi was moved on 26-7-1977. According to the learned Counsel for the Petitioners the first appeal had abated in December 1976 whereas the amended provision came into force on 1-2-1977, hence the second appellate court patently erred in applying the amended provision of law to the facts and circumstances of the present case. 7. According to the learned Counsel for the contesting opposite party, the provision of Order 22 Rule 4 was amended by Section 73 of Act No. 104 of 1976 which was enforced on 1-2-1977 and the provisions of Section 97(2)(r)(3) of the Amendment Act No. 104 of 1976 reads thus: 97 (2). Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897- .... .... .... (r) the provisions of Rule 4 of Order XXII of the First Schedule, as substituted by Section 73 of this Act, shall not apply to any order of abatement made before the commencement of the said Section 73; .... .... .... .... (r) the provisions of Rule 4 of Order XXII of the First Schedule, as substituted by Section 73 of this Act, shall not apply to any order of abatement made before the commencement of the said Section 73; .... .... .... (3) Save as otherwise provided in sub-section (2), the provisions of the Principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement. 8. The learned Counsel for the contesting opposite party has submitted that no order of abatement had been made in the present case before the enforcement of Act No. 104 of 1976. Therefore, the Second Appellate Court was justified in applying the amended provisions of law to the facts and circumstances of the present case. 9. To my mind when abatement of the suit, appeal or proceeding is automatic and needs no written order, it is futile to contend that the amended provision would apply to a case where abatement had taken place much before the date of enforcement of the Amendment Act, i.e. 1-2-1977 In the present case the abatement had taken place in the month of December, 1976 and the Amendment Act No. 104 of 1976 was enforced on 1-2-1977. Therefore, I think that the second appellate court has patently erred in applying the amended provision of law to the facts and circumstances of the present case. 10. It is note-worthy that the second appellate court has not examined the relevant provisions pointed out by the learned Counsel for the contesting opposite party in this regard. In the present case an application for condonation of delay and substituting the heirs was moved on 26-7-1976 and on 28-9-77 the first appellate court abated the appeal by rejecting the application for condonation of delay and not substituting the heirs of the deceased Jaggi. In the present case an application for condonation of delay and substituting the heirs was moved on 26-7-1976 and on 28-9-77 the first appellate court abated the appeal by rejecting the application for condonation of delay and not substituting the heirs of the deceased Jaggi. The second appellate court has not examined this aspect of the matter that the appeal had already abated in December, 1976 and application for substitution of heirs in the present case can be treated as an application for setting aside abatement, hence it was proper for the second appellate court to record a categorical finding as to when the order of abatement of the first appeal would be considered as made before applying the provisions of the amended law. Since this necessary aspect has not been adhered to by the second appellate court, I think that the second appellate court has patently erred in applying the amended provision of law without giving necessary finding. Even if I accept the contention of the learned Counsel for the contesting opposite party as correct in this regard I feel that necessary finding has not been recorded by the second appellate court before applying the amended provision of law to the facts and circumstances of the present case. 11. The second appellate court has also patently erred in observing that Jaggi deceased had transferred his interest to the Defendants Petitioners, hence he was not necessary party in the first appeal. True, that the Petitioners had made some allegation about the extinction of the interest of Jaggi and thereafter settlement of the disputed land with them but they had not made any allegation regarding sale deed executed by the aforesaid Jaggi in their favour. The second appellate court has made wrong observations in paragraph 4 of its judgment. 12. The second appellate court has not decided on merits that the Defendants Petitioners were not entitled to condonation of delay in the circumstances of the present case though the first appellate court had recorded a finding on that point. According to the views of their Lordships of the Supreme Court, the question of substitution of heirs should be liberally dealt with because the law regarding procedure is meant for advancing justice. Therefore, I think that the case should be sent back to the second appellate court to consider the claim of the Petitioners regarding condonation of delay on merits also. 13. Therefore, I think that the case should be sent back to the second appellate court to consider the claim of the Petitioners regarding condonation of delay on merits also. 13. For the foregoing discussions I think that the impugned judgment of the Second appellate court suffers from patent errors of law and deserves to be quashed in the ends of justice. 14. In the result, the writ petition succeeds and the impugned judgment of the second appellate court dated 29-4-1982 is hereby quashed and the second appellate court is directed to re-determine the question of abatement in the light of the above discussions and strictly in accordance with law. It should deal with the points raised by the counsel for the parties before it. There would be no order as to costs.