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2004 DIGILAW 160 (HP)

PUSHPA DEVI v. PARSHOTAM SINGH

2004-07-20

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—This Regular Second Appeal has been preferred by the appellant/plaintiff (hereafter referred to as the appellant) against the judgment and decree dated 22.4.2003 passed by the learned District Judge, Kangra at Dharamshala whereby the appeal of the appellant against the judgment and decree dated 1.9.2000 dismissing the suit of the appellant has been dismissed. 2. The relevant and material facts for the purpose of the present discussion are that the appellant instituted a suit for declaration and setting the sale deed dated 3.6.1996 executed by deceased Charan Singh (represented by respondents No. 6 to 8) in favour of respondent/defendant No.10 and for declaring the decree in civil suit No. 257/90 dated 24.9.1991 titled Gian Singh etc. v. Janak Singh as null and void. The suit was contested by the deceased defendants Gian Singh and Charan Singh (represented by respondents No. 1 to 8 and respondents No. 9 & 10). The suit was finally dismissed by the trial Court and the first appeal preferred by the appellant was also dismissed by the learned District Judge Kangra at Dharamshala. Because of the death of Charan Singh, his legal representatives were brought on record in the first appeal. Gian Singh original defendant and one of the respondents in the first appeal also died admittedly during the pendency of the first appeal but in ignorance of his death the appeal proceeded and was finally dismissed. Aggrieved by the judgment and decree of the lower appellate Court, the appellant has preferred the present appeal and has moved CMP(M) No. 382 of 2004 for bringing the legal representatives of deceased Gian Singh on record and CMP(M) No. 383 of 2004 has been moved for condoning the delay in filing the appeal and for setting aside the abatement of the first appeal. The respondents claim that the applications and the appeal are not maintainable. 3. I have heard the learned Counsel for the parties. 4. The respondents claim that the applications and the appeal are not maintainable. 3. I have heard the learned Counsel for the parties. 4. The learned Counsel for the appellant contended that Gian Singh, respondent in the first appeal, died during the pendency of the first appeal before the District Judge, therefore, in view of the settled position in law that the question of abatement and the question as to whether legal representatives are to be brought on record or not falls exclusively within the jurisdiction of the Court which was ceased of the matter at the time when Gian Singh died, therefore, the impugned judgment and decree are nullity and deserve to be set aside and the case deserves to be remanded to the lower appellate Court for passing appropriate orders/judgment in the appeal. To substantiate his contention, the learned Counsel for the appellant relied on Jagan Nath and others v. Smt. Ishwari Devi (1988 (2) Sim. L.C. 273), Udai Ram v. Dharam Chand (1995(1) Civil Court Cases 219, Harish Chandra Habuda v. Kanakamani Mohapatra and others (1996(1) Civil Court Cases 684) and Kararn Chand and others v. Bakshi Ram and others (Latest HLJ 2001 (HP) 787). 5. On the other hand, it was contended by the learned Counsel for the respondents that the deceased Gian Singh had died during the pendency of the first appeal, therefore, the application(s) for bringing on record his legal representatives and setting aside the abatement are not maintainable in this Court. The appellant had failed to take the appropriate steps for bringing on record the legal representatives of Gian Singh at the appropriate time and cannot now claim re-hearing of the first appeal which has been disposed of on merits after hearing the appellant. To substantiate his contention, the learned Counsel relied on (Thamarapalli (Surya Narayana) v. (Gopavajhala) Joga Rao and others (AIR 1930 Madras 719, Rameshwar Prasad and others v. Shambehari Lal Jagannath and another (AIR 1963 SC 1901) and Collector of 24 Parganas and others v. Lalith Mohan Mullick and others (AIR 1988 SC 2121). 6. Rameshwar Prasads case (supra) deals mainly with the question as to whether in an appeal having abated under Order 22 Rule 3 CPC can the Court proceed under Order 41 Rule 4 CPC. Thus the ratio in the said case is not applicable to the facts and circumstances of the present case. 7. 6. Rameshwar Prasads case (supra) deals mainly with the question as to whether in an appeal having abated under Order 22 Rule 3 CPC can the Court proceed under Order 41 Rule 4 CPC. Thus the ratio in the said case is not applicable to the facts and circumstances of the present case. 7. In Collectors case (supra), some of the respondents died during the pendency of the appeal in the Apex Court but the appeal was disposed of without bringing on record the legal representatives of the deceased respondents. In the review petition, it was claimed that the appeal had abated as the legal representatives of such respondents were not brought on record. The Apex Court, however, held that the estates of the deceased were sufficiently represented, therefore, the appeal did not abate. It was a case of the death of the respondents when the appeal was pending in the Apex Court itself and not before any other Court. Thus, the ratio of this case is also of no help to the respondents. 8. In Surya Narayanas case (supra), the Madras High Court no doubt took the view that a party who has once been heard on merits cannot claim re-hearing of an appeal on the premises that at the time when it was heard, the opposite party was dead and legal representatives had not been brought on record. The law, as laid down by the Madras High Court, no doubt supports the contention raised for the respondents but various other High Courts, including this Court, have taken a contrary view which must prevail over the view taken by the Madras High Court, moreso, because of the view taken by this Court. Therefore, the respondent cannot derive any benefit from Surya Narayans case (supra). 9. In Jagan Naths case (supra), this Court held as under:- "6. The fact that one of the several defendant appellants against whom an indivisible decree was passed by the trial Court, had died during the pendency of the appeal before the lower appellate Court, and steps to bring his legal representatives on the record of the appeal had not been taken within the prescribed period, being undisputed, it must be held that the appeal had already abated prior to the decision of the lower appellate Court dated April 9, 1987. The decree of the lower appellate Court was thus a nullity as it had been passed also against a dead person. The legal position is not in dispute. What is the course which should normally be adopted in a situation like this, has been succinctly stated in the decision of the Calcutta High Court in Kanailals case (supra). It was observed by the Division Bench, after noticing the decisions of various High Courts and the Supreme Court, that: ....... In such circumstances, in our opinion, the uniform procedure followed by the other High Courts as referred to hereinbefore should be accepted, namely, the ineffective decree passed by the Court of appeal below should be set aside and the appeal should be remanded to the said Court, keeping it open to the appellants to move the said Court for an opportunity to have the abatement set aside if the appellants could satisfy the said Court that they are so entitled in law....... I am in entire agreement with the aforesaid observations.” 10. In Karam Chands case (supra) this Court held as follows:— 4. In the given circumstances of the case, one of the questions which arises for determination is as to the effect of death of Pohlo Ram and not bringing on record his legal representatives in the appeal before the lower appellate Court or in other words, the questions now involved in the matter are as follows: (i) Whether the appeal before the lower appellate Court had abated, if so the effect and extent of the abatement; (ii) Whether the abatement should be set aside or not; and (iii) Whether the legal representatives of the deceased may be allowed to be brought on record or not? 5. It is well settled that as and when the 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, if any, took place. (See: Sher Singh and others v. Raghu Rant and others (1981 Shim. L.C. 25) and Tulsi Ram and others v. Smt. Krishni Devi and others (2000(2) Shim.L.C.172). 6. In view of the above settled position in law, this Court is left with no option but to set aside the judgment and decree and to remand the appeal. (See: Sher Singh and others v. Raghu Rant and others (1981 Shim. L.C. 25) and Tulsi Ram and others v. Smt. Krishni Devi and others (2000(2) Shim.L.C.172). 6. In view of the above settled position in law, this Court is left with no option but to set aside the judgment and decree and to remand the appeal. 11. A similar view has been taken by the High Courts of Rajasthan and Orisaa respectively in Udai Ram and Harish Chandras cases (supra). 12. The ponderance of the opinion of the various High Courts including this High Court thus is that when a party to a suit or appeal had died and its legal representatives have not been brought on record, the further proceedings in the case by the Court are without jurisdiction and any judgment or decree passed as a consequence of such proceedings is a nullity and cannot be sustained. It is also further clear in view of such decisions that the questions arising out of the death of a party to a lis concerning the abatement status of legal representatives etc. are to be decided by the Court where the lis was pending at the time when the party died. The controversy in hand has thus to be decided in view of the decisions of this Court and other concurring decisions of other High Courts as referred to hereinabove. 13. It is not in dispute that Gian Singh respondent before the lower appellate Court died on 24.1.2003, as mentioned in the certified copy of Parivar Register Annexure P-3 annexed with CMP(M) No. 382 of 2004 when the first appeal was pending before the lower appellate Court, however, in ignorance of the death of said respondent which was not disclosed even by the Counsel representing him, the lower appellate Court proceeded to dispose of the appeal by the impugned judgment and decree. Thus, the questions as to whether the appeal had abated or not or who were the legal representatives of the deceased and whether they were required to be brought on record or the estate of Gian Singh was sufficiently represented in the appeal did not come up for consideration and determination before the lower appellate Court whereas all such questions were to be decided by the lower appellate Court where a the first appeal was pending at the time of death of Gian Singh. The impugned judgment and decree are, therefore, a nullity. This Court has thus no option but to set aside the impugned judgment and decree and to remit the case to lower appellate Court. 14. As a result, this appeal is allowed and the impugned judgment and decree are set aside and the first appeal is remitted to the lower appellate Court with the direction to re-admit it against its original number and date and permit the appellant to make such application(s) concerning the abatement/bringing on record the legal representatives of deceased Gian Singh as the appellant may deem fit and proper within the framework of law and then give opportunity to the respondents to file their reply(s) to such application(s) and thereafter to proceed to dispose of the case in accordance with law. In the facts and circumstances of the case, there is no orders as to costs. CMP(M) Nos. 382 & 383 of 2004 : 15. These applications stand disposed of in terms of the above orders. 16. Parties through their learned Counsel are directed to appear before the lower appellate Court on 20th August, 2004. Appeal allowed.