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2012 DIGILAW 1050 (ALL)

HARI LAL CHAURASIA (DEAD) v. KRISHNA DEVI

2012-05-03

RAJES KUMAR

body2012
JUDGMENT Hon’ble Rajes Kumar, J.—It appears that respondent No. 1 died on 10.4.2004 during the pendency of the 1st appeal. Since no substitution application was filed and dead person was made party an application for abatement of the appeal against the legal heirs of respondent No. 1 has been filed. Lateron, appellants filed the substitution application on 3.9.2010 on which the Court has issued notices to the proposed legal reprsesenatives of the deceased on 18.11.2011. The notices were sent by ordinary post as well as by registered post and an application for setting aside the abatement application has also been filed on 7.4.2011. In paragraph-3 of the substitution application, it is stated that the counsel for the respondents did not inform the factum of death to the Court as required under Order 22 Rule 10A of the Code of Civil Procedure (herreinafter referred to as “C.P.C.”) and as such the appellants could not know about the death of respondent No. 1. Learned counsel for the respondents informed the deponent about the death of respondent No. 1 on 31.8.2010 and then the deponent enquired about the legal heirs of respondent No. 1 and then filed the substitution application. It is stated that the application is in time, however, if there is any delay, the same may be condoned. 2. Counter-affidavit has been filed by the respondnets. In paragraph-3 of the counter-affidaivt, it is stated that respondent No. 1 has died on 10.4.2004 and not during the pendency of the second appeal. She died before the order has been passed in Civil Appeal No. 232 of 1998 on 6.9.2006 as such the present second appeal has been preferrred against the dead person as such the substitution application is not maintainable. 3. Rejoinder-affidavit has been filed. In paragraph-4 of the rejoinder-affidait, the factum of date of death mentioned in the counter-affidavit has not been disputed. It is stated that the fact was never brought to the notice of the lower Court nor the counsel for the respondents ever informed the lower appellate Court about the death of late Smt. Krishna Devi; the respondnet No. 1 who according to respondent No. 2 died on 10.4.2004 during the pendency of Civil Appeal No. 232 of 1998. Information, as required under Order 22 Rule 10A of C.P.C. was not given and as such the appellants could not know about the death of respondent No. 1. Ms. Information, as required under Order 22 Rule 10A of C.P.C. was not given and as such the appellants could not know about the death of respondent No. 1. Ms. Kamla Misra, learned counsel for the respondnets in the present second appeal informed the deponent about the death of respondent No. 1 on 31.8.2010 and then the deponent enquired about the legal heirs of respondent No. 1 and as such the present substitution application has been filed and the same is maintainable. 4. Sri A.K. Srivastava, learned counsel for the appellants submitted that Order 22 Rule 10A of C.P.C. provides that whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party. In the present case, the pleader has not informed about the death of respondent No. 1 before the first appellate Court therefore no steps have been taken to substitute the heirs. He further submitted that Smt. Krishna Devi was daughter of late Munni Lal, who was the defendant in the suit. Sri Bhagwati Prasad, son of late Munni Lal, is arrayed as respondent No. 2. He is still alive. Therefore, having regard to the nature of the suit and the issue involved, the abatement of the appeal against the heirs of respondent No. 1 will have no ultimate effect. He submitted that a liberal view should be taken in setting aside the abatement. Reliance is palaced on the decision of the Apex Court in the case of State of Madhya Pradesh v. S.S. Akolkar, AIR 1996 SC 1984 . 5. Sri Arvind Kumar Shukla, learned counsel for the respondents submitted that the appeal has been filed against the dead person, therefore Order 22 Rule 10A of C.P.C. does not apply in the present case and the appeal stands abated against the legal heirs of respondent No. 1. He placed reliance on the decision of the Apex Court in the case of T. Gnanavel v. T.S. Kanagaraj and another, JT 2009 (3) SC 196. 6. I have considered the rival submissions. 7. The suit has been filed against Munni Lal for permanent injunction restraining him to raise any construction over the suit property and in the peaceful possession of the plaintiff. 8. 6. I have considered the rival submissions. 7. The suit has been filed against Munni Lal for permanent injunction restraining him to raise any construction over the suit property and in the peaceful possession of the plaintiff. 8. The claim of the plaintiff was that he had purchased plot No. 794/1 in Mauja Chakka, Pargana Arail, District Allahabad measuring Rakba 3 Bishwa 12 Dhoor from Sri Sangam Lal and Sri Ribai against the registered sale-deed dated 27.10.1959. The said property has been mutated in the name of the plaintiff and his name has been recorded in Plot No. 794/1, 1368 fasli. The said plot lateron, numbered as 794/2, 1370 fasli in the revenue record. The case of the defendant is that he was owner of Plot No. 793, which was purchased by him from Sri Ibrar Hussain, son of Sri Niyat Hussain, vide registered sale-deed dated 20.5.1957 and in the year 1958 over the said plot he had constructed two rooms. He has not disputed the ownership and possession of the plaintiff over plot No. 794/1, new number 794/2. The Trial Court recorded the finding that the plaintiff failed to prove that the disputed plot is part of plot No. 794/2. This finding has been upheld by the appellate Court. 9. It appears that during the pendency of 1st suit, Munni Lal died and his daughter Smt. Krishna Devi and son Sri Bhagwati Prasad were substituted. In the appeal also, they were made party. On the facts and circumstances, the Court is of the view that if respondent No. 1 died in the year 2004, the pleader of respondent No. 1 should have informed the Court about her death but it is not the case of any party that the pleader has informed about the death of respondent No. 1. In the circumstances, there was no occasion with the appellants to know about the death of respondent No. 1 and to move the substitution application. During the pendency of the present appeal, when the appellants came to know through counsel of respondents that respondent No. 1 has died, steps have been taken and the substitution application has been filed. The Court is of the view that at the stage of second appeal also, the heirs of the party who died during the pendency of suit or appeal can be made as party and their names can also be substituted. The Court is of the view that at the stage of second appeal also, the heirs of the party who died during the pendency of suit or appeal can be made as party and their names can also be substituted. It is settled law that in the cases of substitution and in setting aside the abatement, a liberal view should be taken to avoid the defeat of justice. 10. In the circumstances, the substitution application is allowed. The appellants may substitute the heirs of respondent No. 1. ——————