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2001 DIGILAW 177 (PAT)

Biku Yadav And Others v. Champa Devi And Others

2001-02-23

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This miscellaneous appeal is directed against the order dated 9th July, 1993 passed by the 4th Additional District Judge, Purnea in Title Appeal No. 48 of 1989. 2. The relevant facts for deciding the present appeal are that the plaintiff-appellants had allegedly purchased certain lands from one Ramphal Yadav. However, one Bhutari Devi, wife of Ramphal Yadav filed Title Suit No. 611 of 1967 against the plaintiff-appellants and others and obtained an ex parte decree. No notice was served in that title suit. When the judgment was passed in this suit on 11th June, 1970, the plaintiff-appellants filed Title Suit No. 1072 of 1970, praying that the decree passed in Title Suit No. 611 of 1967 be declared as fraudulent, illegal and void. During the pendency of this Title Suit, Bhutari died and the plaintiff-appellants did not know that Bhutari Devi had left behind any heir. So her name was sought to be expunged from the cause title of the plaint and it was accordingly expunged. However, the suit was dismissed after concluding the hearing and production of evidence. Then, the plaintiffs above, filed F.A. No. 48 of 1989. During the pendency of this appeal, the daughter and sons of Bhutan Devi appeared and prayed before the Court that the suit and appeal, both abated and thereafter, the appellants ascertained from the voter list etc. and filed a petition for substituting the heirs of Bhutari Devi, after condoning the delay. However, the plaintiffs prayer was rejected and the appeal and the suit, both were abated. 3. The impugned order states that since heirs of Bhutari Devi were not substituted, the suit had automatically abated. It was further stated in the impugned order that the plaints of S.T. No. 1072 of 1970 indicated that Bhutari Devis husband was alive and so non-substitution of her husband at least as heir, had caused abatement of the suit and, therefore, the plaintiff-appellant was not entitled to seek setting aside of the abatement in the appeal (T.A. No. 48 of 1989) after so many long years. Accordingly, the suit was declared to have abtated and the appeal was, accordingly, disposed of. 4. Before me, it was submitted that in the interest of Justice, the Court ought to be liberal and allow the parties to seek a decision from the Court on contest after adjudication of the rights. 5. Accordingly, the suit was declared to have abtated and the appeal was, accordingly, disposed of. 4. Before me, it was submitted that in the interest of Justice, the Court ought to be liberal and allow the parties to seek a decision from the Court on contest after adjudication of the rights. 5. I find that the cause title of the plaint of Title Suit No. 1072 of 1970 contained the name of defendant No. 1 Smt. Bhutari Devi as wife of Muni Yadav. So it was apparent that Muni Yadav was the husband of Bhutari Devi. So when the Court allowed the expunction of the name of Bhutari Devi, it can be supposed that the Court was aware of the existence of Bhutans husband. So when the Court expunged the name of Bhutari Devi, the Court could also pass an order for abatement of the suit. In such a circumstance, when the Court allowed the suit to proceed in absence of Bhutans heirs, I think, the matter ended there. It was a suit for declaration that the ex parte decree obtained by Bhutari Devi was passed by Balabala service of notice upon the defendants of Title Suit No. 611 of 1967. So, I think the Court which passed the ex parte decree was nationally a party to the decree. So title suit No. 1072 of 1970 could proceed even in absence of Bhutari Devi and the Court, of course, allowed this suit to proceed in absence of Bhutans heirs, as then they were not known to be there. Moreover, name of Bhutans husband was apparent, but he was also not impleaded and still the Court allowed the suit to proceed. Therefore, I am of the opinion that the appellate Court cannot, in future, hold that the suit had abated. Moreover, I find that the respondents of Title Appeal No. 48 of 1989 had contested the claim of the plaintiff-appellants for adding the name of Bhutaris heirs. These respondents were also parties so Title Suit No. 1072 of 1970. So it transpires that the respondents of Title Suit No. 1072 of 1970 had some interest in the suit property, and, therefore, they were challenging the addition of the names of heirs of Bhutari Devi. In that view of the matter also, the entire suit (T.S. No. 1072/70) could not be held to have abated. So it transpires that the respondents of Title Suit No. 1072 of 1970 had some interest in the suit property, and, therefore, they were challenging the addition of the names of heirs of Bhutari Devi. In that view of the matter also, the entire suit (T.S. No. 1072/70) could not be held to have abated. I find that a large area of suit land is being claimed by the plaintiff-appellants and some persons other than heirs of Bhutari Devi had contested the suit concerned and they were also contesting the appeal. In such circumstances, the appellate Courts order declaring the suit to have abated and disposing of the appeal in that light appears to be a bit off the point. In the appeal, there was no question of substitution of the heirs of Bhutari because the question of substitution arises when a party to the suit or appeal, already on record, dies. So when the plaintiff-appellant sought the appeal to be decided by bringing the heirs of Bhutart Devi on record of the appeal, I think these heirs can be impleaded in the appeal under Order I, Rule 10, CPC. An appeal is continuation of the proceedings of the suit and so a person can be impleaded in the appeal by way of addition under Order I, Rule 10, CPC. 6. So in the interest of justice and in the interest of all the parties, including the heirs of Bhutari Devi, I think, the appeal should be decided on contest by all the interested parties in order to adjudicate the rights of the parties finally on contest. Hence, the impugned order is set aside and the Misc. appeal is allowed. It is directed that the heirs of Bhutari Devi shall be impleaded as respondents in the appeal and thereafter, the appeal shall be disposed of on merit.