Lala v. Lal Khan — 1988 DIGILAW 645 (RAJ)

R.S. VERMA, J.—Ali Mohd., Lal Khan and Gulam Mohd. brought a suit against present appellant Lala in the Court of Addl. District Judge, Churu, for recovery of arrears of rent and possession of a "bari" on the averments that Lal had taken the aforesaid "bari" with a well on rent from them on 28.11.67 at a monthly rent of Rs. 5/-. The lease was to expire on 31.3.68. A "kirayanama" was executed on 28.11.67. The defendant did not pay any rent. It was pleaded that the plaintiffs required the "bari" for their own use. A notice of termination of tenancy was sent to the defendant on 17.3.69, which was received by the defendant on 18.3.69 but he neither paid rent nor vacated the bari and the well, 2. The suit was resisted by the defendant, who traversed the claim of the plaintiffs. He denied that he had ever taken on rent the suit "bari" or the well. It was pleaded that thumb impression of the defendant was obtained by the plaintiff Ali Mohd. by playing fraud on him. On such pleas, it was prayed that the suit may be dismissed. 3. The suit had a chequered history. Eventually the suit travelled to the Court of Munsif, Churu who decreed the suit of the plaintiffs vide his judgment and decree dated 18.5.72. 4. Aggrieved against the decree of ejectment and recovery of rent the present appellant Lala filed a first appeal before learned Addl. District Judge, Churu. This appeal was transferred to the Court of learned Civil Judge. During the pendency of the appeal, respondent no. 2 Ali Modh. expired and his legal representatives, eight in number were brought on record. These included respondent no. 2/2, who was already in the array of respondents as respondent no. 3. 5. Learned Civil Judge after hearing both the sides, partially allowed the appeal He set aside the decree passed in favour of Lal Khan and Gulam Mohd. 6. It appears that due to over-sight or inadvertence, learned Civil Judge in the heading of the judgment of the appeal as also in the operative part of the judgment, mentioned that the suit was being decreed in favour of appellant Ali Mohd., since then deceased. 6. It appears that due to over-sight or inadvertence, learned Civil Judge in the heading of the judgment of the appeal as also in the operative part of the judgment, mentioned that the suit was being decreed in favour of appellant Ali Mohd., since then deceased. Neither the title of the judgment nor the operative part of the judgment mentioned the names of the legal representatives of the deceased Ali Mohd., who had already been brought on record. Learned Civil Judge went to the extent of saying in his judgment that the suit was being decreed in favour of Ali Mohd. This was absolutely a mis-statement and shows callous negligence on the part of the Presiding Officer, who rendered the judgment dated 31.1.77. Actually the suit was decreed in favour of Ali Mohd. by the trial court itself and there was no occasion for the learned Civil Judge to pass a fresh decree in favour of Ali Mohd., who had already expired. 7. Be that as it may, appellant Lala filed present appeal. A certified true copy of the decree sheet was filed, which recited all that what had been recorded in the operative portion of the judgment. 8. Appellant Lala filed this appeal against Lal Khan, Ali Mohd. (wrongly mentioned as Ala Mohd.) and Gulam Mohd. even though Ali Mohd. had died long back. 9. After the appeal had been filed, learned counsel for the appellants realised that legal representatives of deceased AH Mohd. had not been impleaded in this second appeal even though they had been impleaded before the first appellate court. Hence, on 28.3.78, an application was moved by the learned Advocate for the appellants briefly reciting the fact that Ali Mohd. had died on 10.11.72; his legal representatives had been impleaded before the lower appellate court. It was prayed that the various persons mentioned in the application be impleaded as legal representatives of the deceased Ali Mohd. because presence of all of them were necessary for the just decision of the appeal. An apprehension was voiced that the decree in favour of Ali Mohd might otherwise be a nullity. 10. It is curious that this application was not pressed with the result that the application was dismissed as not pressed on 6.7.78. 11. because presence of all of them were necessary for the just decision of the appeal. An apprehension was voiced that the decree in favour of Ali Mohd might otherwise be a nullity. 10. It is curious that this application was not pressed with the result that the application was dismissed as not pressed on 6.7.78. 11. The learned counsel for the appellants moved a second application on 6.7.78 supported by an affidavit wherein it was stated that the legal representatives of deceased Ali Mohd. had not been impleaded by him and an application u/s 5 of the Limitation Act was required to bring them on record. It was pleaded that it was because of over-sight that names of, the legal representatives were omitted. This application came up for hearing on 25.7.84. The application was opposed on behalf of the respondents Lal Khan and Gulam Mohd. The application was dismissed by a reasoned and detailed order rendered by his Lordship Mr. Justice S.K. Mal Lodha (as he then was). 12. Now this appeal has come up for hearing before me. Shri Rajesh Balia on behalf of respondent no. 3 submits that the first appellate court dismissed the suit so far as respondents Lal Khan and Gulam Mohd were concerned. They have not filed any appeal against the dismissal of their suit. Hence, the lis survived only in favour of the legal representatives of Ali Mohd and vis a vis appellant Lala. He submits that since the appeal has not been filed against legal representatives of Ali Mohd., the appeal is incompetent and should be dismissed on this count alone. 13. Learned counsel for the appellant submits that the appellant should not be punished on account of the mistake committed by the learned Presiding Officer and his appeal should be accepted and the judgment and decree rendered by the learned first appellate court should be set aside and the suit may be remanded for rendering a proper decision and pass a proper decree. He has placed reliance in this connection upon Hari Chand vs. Gordhan Das (1). 14. Learned counsel for respondent No. 3 submits that this is a case where appeal has been tiled against a dead person. Such an appeal is incompetent and cannot be proceeded with. He has placed reliance in this connection upon Hari Chand vs. Gordhan Das (1). 14. Learned counsel for respondent No. 3 submits that this is a case where appeal has been tiled against a dead person. Such an appeal is incompetent and cannot be proceeded with. There might have been some mistake committed by the learned first appellate court but the mistake had come to the notice of the appellant and he did move an application for bringing the legal representatives of. Ali Mohd. on-record; he chose not to press that application with the result that the application was dismissed Hari Chands case(supra) pretains to a case where appellant was not at all at fault In the present case, the appellant is as much guilty of negligence and carelessness as the learned Judge of the first appellate court and hence, the appellant cannot takeshelter behind the negligence of the learned first appellate court. 15 I have bestowed my earnest consideration to the rival contention advanced before me. This is a patent fact that suit of Lal Mohd and Gulam Mohd was dismissed by the first appellant court against Lala and as such, when Lal Khan and Gulam Mohd. had not come into appeal against such dismissal, the lis did not survive between Lala on one hand and Lal Khan and Gulam Mohd. on the other. However, the lis did survive against the legal representatives of deceased Ali Mohd. who had been impleaded during the pendency of the first appeal. When the first appellate court impleaded the legal representatives of deceased plaintiff-respondent AH Mohd, and dismissed the appeal of Lala, it had the effect of confirming the decree of the trial court in favour of the legal representatives of Ali Mohd. The judgment of the first appellate court ought to have shown this position, both in the title of the judgment as also in the decree, I regret to say that the learned Presiding Officer of the first appellate court did not bestow that care and attention on the matter which he ought to have shown. In the main body of the judgment, he has racked that Ali Mohd had died and his legal representatives have been brought on record yet in the title of the judgment he did not take care to ensure that their names were included. In the main body of the judgment, he has racked that Ali Mohd had died and his legal representatives have been brought on record yet in the title of the judgment he did not take care to ensure that their names were included. Even in the operative part of the judgment, he purported to pass a decree in favour or Ali Mohd., which was absolutely uncalled for, since appeal of Lala had already been dismissed against the legal representatives of Ali Mohd. 16. This is a well settled principle of law that the mistake committed by a Court should not come in way of a litigant in securing justice. The principle is embodied in the famous dictum actus curiae nominem gravabit". The precedent cited before me also establishes this proposition. But, the precedent does not help the appellant in any manner, because the matter does not rest at the negligence of the learned first appellate court. In the present case, the appellants counsel fully well know that Ali Mohd had died and his legal representatives had been brought on the record of the first appellate court and hence, the appeal ought to have been filed against them. A bare reading of the judgment of the first appellate court makes this position clear. The judgment of the first appellate court notices at page 3 as follows:- vihy isk gksus ds ckn jsLiksaMsaV vyh eksgEen dh e`R;q gks tkus ij mlds dkuquh okfjlku jsdkMZ ij yk;s x;s rFkk lakksf/kr vihy eheksa isk fd;k x;kA 17. In the present case, the appellants counsel did move an application on 28-3-78 for impleading the legal representative of the plaintiff Ali Mohd. He, however, got this application dismissed as not pressed on 6-7-78. Why this was done, is not clear and has not been explained. Thus, the appellant deliberately did not take effective steps to rectify the mistake originally committed by him intiling the appeal against a dead person including respondents against who no relief could be claimed. The principle of equity invoked by the learned counsel of the appellant does not and cannot come to rescue of the appellant. The doctrine vigilantibus, et. non dormentibus, jura subvenient" is attracted to the present case. Law helps those, who are vigilant and not those who sleep. To put in other words, law comes to the rescue of such persons, who are themselves vigilant about their rights. The doctrine vigilantibus, et. non dormentibus, jura subvenient" is attracted to the present case. Law helps those, who are vigilant and not those who sleep. To put in other words, law comes to the rescue of such persons, who are themselves vigilant about their rights. In the present case, the learned counsel for the appellant did not exhibit reqired vigilance and the appeal was filed and continued, inter alia, against a dead person. 18. Since the appellant himself has been negligent and oblivious in the matter, he cannot claim the indulgence of Court by saying he should not be punished for the mistake of the Presiding Officer. The fact remains that this appeal had been filed against a dead person without bringing his legal representatives on record within the period of limitation. Such an appeal is obviously incompetent and is liable to be dismissed with costs. Hence, the same is dismissed accordingly.