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2014 DIGILAW 121 (HP)

Kamlesh Kumar v. Baba Himachal Giri

2014-02-24

DHARAM CHAND CHAUDHARY

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Judgment : Dharam Chand Chaudhary, J. (Oral) Challenge herein is to the judgment and decree dated 14.5.2013 passed by learned Additional District Judge, Hamirpur, in Civil Appeal No.21 of 2012, whereby the judgment and decree passed by learned Civil Judge (Junior Division), Court No.III, Hamirpur, in Civil Suit No.157 of 2002, has been affirmed and the appeal dismissed. 2. Appellants are the plaintiffs. One of the appellants-plaintiffs Rattni Devi has passed away on 20.1.2013, i.e., during the pendency of the appeal in the lower appellate Court. The appeal, however, has been dismissed by the lower appellate Court without taking note of her death vide judgment and decree impugned before this Court in the present appeal. The impugned judgment, therefore, admittedly is against a dead person, i.e., appellant-plaintiff Rattni Devi. There is no quarrel so as to she died well before hearing of arguments in the appeal by the lower appellate Court. 3. Whether the appeal on her death stands abated for want of consequential steps by the surviving appellants-plaintiffs or her legal representatives or not, is a question to be gone into and determined by the lower appellate Court. Of course, affidavit of appellant-plaintiff Kamlesh Kumar filed alongwith this appeal reveals that it is he and his brother Jagir Singh (appellants), being her sons, are her only legal representatives and also represent her estate and as such legally entitled to continue with the proceedings. In support of the affidavit, a copy of the death certificate and a copy of registered Will executed by her in their favour have also been filed on the record of this appeal. However, such material placed on record cannot be looked into by this Court and appellants-plaintiffs should bring the same on the record of lower appellate Court to seek deletion of her name in case it is they who are her only legal heirs. 4. A co-ordinate Bench of this Court in Jagan Nath and others v. Smt. Ishwari Devi, 1988 (2) Shim.L.C. 273 , has held that the question of substitution of legal representatives of a deceased party and the abatement of the suit/appeal for want of consequential steps has to be decided by that very Court where at the time of death of such party the lis was pending. Consequently, the judgment under challenge was set aside and the case was remanded to the lower appellate Court for deciding the questions of substitution of legal representatives of the deceased party and abatement of the appeal, if any. 5. A co-ordinate Bench of this Court, in Karam Chand and others v. Bakshi Ram and others, 2002 (1) Shim. L.C. 9 has again held as under: “4. In the given circumstances of the case, one or the questions which arises for determination is as to the effect of death of Pohlo Ram and not bring 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 abatement, if any, took place.” 6. In view of the legal as well as factual position discussed hereinabove, this Court is not left with any other and further option except to allow this appeal and set aside the impugned judgment and decree and remand the case to the lower appellate Court for deciding the question of substitution of legal representatives of deceased appellant-plaintiff Rattni Devi and that on her death the appeal stands abated or not and to decide the appeal afresh on merits. 7. For all the reasons hereinabove, the impugned judgment and decree is set aside and the case is remanded to the lower appellate Court with a direction to allow the plaintiffs-appellants to take consequential steps as they deem appropriate and decide the question of substitution of legal representatives of the deceased appellant-plaintiff Rattni Devi and also the question of abatement of the appeal, if any, after affording the respondent-defendant due opportunity of being heard. The parties through learned Counsel representing them are directed to appear before learned lower appellate Court on 18th March 2014. 8. The parties through learned Counsel representing them are directed to appear before learned lower appellate Court on 18th March 2014. 8. An authenticated copy of this judgment be sent to learned lower appellate Court (Additional District Judge, Hamirpur) for compliance and being taken on record.