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2000 DIGILAW 94 (HP)

TULSI RAM v. KRISHNI DEVI

2000-05-03

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.—This is plaintiffs second appeal. The material facts are that the plaintiffs instituted a suit for declaration that they are the owners in possession of the land specifically detailed in para 2 of the impugned judgment. The defendants inter alia claimed to be the joint owners in possession of the suit land. The trial court dismissed the suit. The first appeal of the plaintiffs was dismissed by the lower appellate court by the impugned judgment and decree. Hence this appeal by the plaintiff alongwith which CMP (M) No. 507/ 99 under Order 22, Rule 4, CPC to bring on record the legal representatives of defendant Paras Ram who is stated to have died on 22.10.1989 and CMP (M) No. 508/99 under Section 5 of the Limitation Act for condonation of delay in filing the CMP (M) No. 507/99 have also been filed. 2. I have heard the learned counsel for the parties and have also gone through the material on record. 3. There is no dispute that defendant Paras Ram died on 22.10.1989, that is, during the pendency of the appeal before the lower Appellate Court. It is also not disputed that neither of the parties informed the lower Appellate Court about the death of defendant Paras Ram nor steps were taken to bring on record the legal representatives of the said deceased with the result that the lower appellate court proceeded to pass the impugned judgment and decree on merits as if defendant Paras Ram was alive. 4. In the given circumstances of the case, there is no findings whatsoever of the lower appellate court as to the effect of the death of said Paras Ram and not bringing his legal representatives on record in the appeal before it in view of the provisions of Order 22, Rules 4 and 10-A of the Code of Civil Procedure, that is to say, there is no finding as to whether the appeal of the plaintiffs before the lower appellate court had abated. 5. Now the questions necessarily involved in matter are: (a) Whether the appeal before the lower Appellate Court, had abated, if so the extent and effect of the abatement? (b) Whether abatement should be set-aside or not, and (c) Whether the L.Rs. of the deceased may be allowed to be brought on record or not? 6. 5. Now the questions necessarily involved in matter are: (a) Whether the appeal before the lower Appellate Court, had abated, if so the extent and effect of the abatement? (b) Whether abatement should be set-aside or not, and (c) Whether the L.Rs. of the deceased may be allowed to be brought on record or not? 6. As and when such questions, as aforesaid, arise in relations to a suit or appeal at the first instance these are to be decided by the court in which the suit or appeal was pending at the time of the death of the party and the abatement took place. (See Ramsewak Mishra and another v. Mt. Deorati Kuer and others, AIR 1962 Patna 178; Muna Devi and another v. Ram Jhari Devi and others, AIR 1969 Patna 314 and Sher Singh and others v. Raghu Ram and others, 1981 Shim. L.C. 25). 7. In view of the above, this Court is left with no option but to set-aside the impugned judgment and decree and to remand the appeal. 8. As a result the impugned judgment and decree are set-aside and Civil Appeal No. 29/1988 is remanded to the learned District Judge, Bilaspur who shall after restoring the appeal to its original number and date permit the plaintiffs/appellants to take such steps as they like in the matter and permit the opposite party to take such objections thereto as they may deem fit and proper, and thereafter take a decision in accordance with law. The appeal is accordingly disposed of leaving the parties to bear their own costs. 9. Since the matter has become very old, therefore, the lower appellate court to dispose of the matter within six months. The parties are directed to appear before the lower appellate court on 29th May, 2000.