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2001 DIGILAW 36 (HP)

BARFI DEVI v. STATE OF H. P.

2001-03-20

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.—This appeal has been preferred by the appellants against the judgment and decree dated 11.5.2000 passed by the learned District Judge, Bilaspur in Civil Appeal No. 18 of 1992 whereby the judgment and decree dated 31.1.1992 passed by the learned Sub Judge 1st Class, Ghumarwin in favour of the predecessor-in-interest of the present appellants had been reversed. 2. The appeal was admitted for hearing on two substantial questions of law vide order dated 12.7.2000. It has, however, been brought to the notice of the Court that Brij Lal, appellant and proforma respondent Piar Singh, originally defendants in the case, had died respectively on 21.9.1995 and 8.12.1997 during the pendency of the appeal before the lower appellate Court. However, the factum of their death was neither known to the present appellants who were respondents before the lower appellate Court nor was brought to the notice of the lower appellate Court by the respondents and that the appeal preferred by the respondents before the lower appellate Court had, thus, abated for want of bringing on record the legal representatives of the aforesaid deceased persons. 3. In view of the aforesaid submissions, I have heard the learned counsel for the parties about the further course of action is the matter. 4. It is not disputed that Brij Lal, appellant before the lower appellate Court and Piar Singh who was proforma respondent therein died during the pendency of the appeal and no steps whatsoever were taken to bring on record their legal representatives. Therefore, the following questions are necessarily involved for determination in the dispute between the parties: "1. Whether the appeal before the lower appellate Court had 1 abated; if so, the extent and effect of the abatement? 2. Whether there is any sufficient cause for setting aside the abatement or not? 3. Whether the legal representatives of the aforesaid deceased persons may be allowed to be brought on record or not?" 5. As and when such questions as aforesaid arise in relation 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. As and when such questions as aforesaid arise in relation 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. ML 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 Sim. L.C. 25). 5-A. In view of the above position in law, the only alternative left open to this Court is to set aside the impugned judgment and decree and to remand the case to the lower appellate Court. 6. As a result, the impugned judgment and decree are set aside and Civil Appeal No. 18 of 1992 is remanded to the learned District Judge, Bilaspur, who shall, after restoring the appeal to its original number and date, permit the appellants-defendants to take such steps as are permissible to them under the law and afford opportunity to the opposite party to take objections thereto and thereafter take a decision in accordance with law, 7. The appeal is disposed of in terms of the above order, leaving the parties to bear their own costs. 8. Since the matter has become pretty old, therefore, the lower appellate Court is directed to dispose of the matter as expeditiously as possible; preferably within six months. Parties are directed to appear before the lower Appellate Court on 10.4.2001. Records of the Courts below be returned forthwith. CMP 483 of 2000 Dismissed as infructuous. Appeal dismissed.