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2014 DIGILAW 1820 (HP)

Seeta Ram v. Ashok Kumar

2014-12-05

DHARAM CHAND CHAUDHARY

body2014
JUDGMENT : Dharam Chand Chaudhary, J. CMP No. 3122 of 2014 & RSA No. 610 of 2007 Defendants are in second appeal before this Court. They are aggrieved by the judgment and decree dated 8.10.2007 passed by learned Additional District Judge, Fast Track Court, Una in Civil Appeal No. 61/2K RBT 65/04/2000. The appellants-defendants suffer the decree passed by learned Sub Judge 1st Class, Court No. (I), Amb, District Una, whereby the plaintiffs and proforma defendants, (respondents herein) have been declared owner in possession of the suit land measuring 48 kanals 3 marlas entered in Khewat No. 418min, Khatoni No. 1813, Khasra Nos. 6281, 10899/6283 and 6284, situate in Village Lohara, Tehsil Amb, District Una. Learned lower appellate Court has dismissed the appeal and affirmed the judgment and decree passed by the trial Court. 2. One of the respondents-proforma defendants Harnam Singh (respondent No. 21) had expired on 09.12.2006 during the pendency of the appeal in the lower appellate Court. The appellants-defendants and respondents-plaintiffs failed to report the factum of the death of respondent-defendant Harnam Singh in the lower appellate Court nor consequential steps taken and to the contrary the appeal came to be decided by learned lower appellate Court without taking notice of his death and substituting his legal representatives. It is when notice of this appeal issued to respondent-defendant Harnam Singh, it transpired that he has already expired. Initially, the appellants-defendants have filed application CMP(M) No. 867 of 2008, with a prayer to delete his name from the array of parties. The same, however, was allowed to be withdrawn with liberty reserved to file fresh one vide order passed on 24.02.2014. 3. It is in this backdrop, the application (CMP No. 3122 of 2014) aforesaid came to be filed on behalf of the appellants-defendants with a prayer that the name of deceased respondent Harnam Singh may be ordered to be deleted from the array of parties and the question of abatement of the appeal on account of his death is ordered to be determined in accordance with law. 4. 4. The application has been contested and resisted on various grounds, however, mainly that the deceased was a proforma defendant and there being no clash of interest inter-se the respondents-plaintiffs and the deceased and also that in view of his brother Baldev Singh is on record as respondent No. 24, coupled with the factum of their rights in the suit land joint and indivisible his estate was sufficiently represented and, as such, there is no question of abatement of the appeal. It has also been pointed out that the appellants-defendants cannot be allowed to take benefit of their own wrongs, as it was an obligation on their part to bring on record the legal representatives of deceased respondent in the lower appellate Court. The name of deceased respondent has, therefore, been sought to be deleted from the array of parties. 5. Admittedly, Harnam Singh, respondent No. 21 in the lower appellate Court had died during the pendency of the appeal in the lower appellate Court. There is again no quarrel so as to his predecessor was ex-parte in the lower appellate Court and he did not contest the suit. Similarly, on substitution of deceased respondent No. 21 Harnam Singh, he also opted for not putting appearance and contest the suit. In the lower appellate Court also he was ex-parte. The fact, however, remains that the suit has not only been decreed in favour of plaintiffs-respondents No. 1 to 11 but also in favour of deceased respondent Harnam Singh along with other proforma defendants-respondents. Meaning thereby that irrespective of his brother Baldev Singh is there on record, the right to sue survives in favour of legal representatives, if any, of the deceased respondent Harnam Singh. The appeal stands abated on his death or not, is also a question, which cannot be gone into by this Court and rather the Court where the lis was pending at the time of his death. Otherwise also, in view of the constant legal position settled by this Court and also the apex Court in various judicial pronouncements, as and when the question of abatement of the suit or appeal arises, such question can only be gone into and decided by the Court where the suit or appeal was pending at the time of death of a party. It has been held so by a Co-ordinate Bench of this Court in Jagan Nath and others v. Ishwari Devi, 1988 (2) Shim.L.C. 273 and in Karam Chand and others v. Bakshi Ram and others, 2002 (1) Shim.L.C. 9 . 6. Even the decree passed in favour of a dead person is also nullity. It has been held so by the apex Court in Kishun @ Ram Kishun (dead) versus Bihari (D), AIR 2005 Supreme Court 3799, which reads as follows : “5. As rightly pointed out by learned counsel for the appellants and fairly agreed to by learned senior counsel for the respondent, the decree passed by the High Court against a party who was dead, is obviously a nullity. It is conceded that the legal representatives of neither of the parties were brought on record in the second appeal and the second appeal stood abated. On this short ground this appeal is liable to be allowed and the decision of the High Court set aside. 7. We think that in this case, a proper enquiry as to whether there was a compromise or an adjustment of the dispute, in terms of the proviso to order XXIII, Rule 3 of the Code is warranted. The decision in the Second Appeal is also a nullity since it was passed in favour of a deceased appellant against a deceased respondent.” 7. On the death of a party to a suit or appeal and for want of consequential steps, suit/appeal abates because abatement is automatic after the expiry of limitation prescribed for substitution of LRs of deceased party and setting aside the abatement. In the case in hand, respondent No. 21 had expired on 09.12.2006 during the pendency of the appeal in the lower appellate Court. The limitation prescribed for taking consequential steps and setting aside the abatement has expired long back. In view of the judgment and decree under challenge is in favour of deceased respondent Harnam Singh also, the right to sue survives in favour of his legal representatives. The appeal, for want of consequential steps within the period of limitation stood dismissed having been abated qua deceased Harnam Singh in the lower appellate Court, whereas, vide judgment and decree under challenge, the suit has been decreed in favour of respondents-plaintiffs and surviving proforma respondents-defendants. There cannot be two judgments in one case. 8. The appeal, for want of consequential steps within the period of limitation stood dismissed having been abated qua deceased Harnam Singh in the lower appellate Court, whereas, vide judgment and decree under challenge, the suit has been decreed in favour of respondents-plaintiffs and surviving proforma respondents-defendants. There cannot be two judgments in one case. 8. In view of the legal as well as factual position discussed supra, this Court is left with no other and further option except to hold that the judgment and decree under challenge being in favour of a dead person is nullity, hence not legally sustainable. 9. Consequently, the judgment and decree under challenge in this appeal, being in favour of a dead person is nullity and is hereby quashed and set aside. The case is remanded to the lower appellate Court with a direction to the appellants-defendants herein to take consequential steps on the death of deceased respondent Harnam Singh and thereafter to decide the question of substitution of legal representatives and also the question of abatement of the appeal, if any, after affording the parties an opportunity of being heard. The parties through learned counsel representing them are directed to appear before learned lower appellate Court on 23rd December, 2014. Record be sent back so as to reach in the lower appellate Court well before the date fixed. Learned lower appellate Court is directed to dispose of the appeal as expeditiously as possible as but not later than the quarter ending 31st March, 2015. 10. The appeal stands disposed of accordingly. Pending application(s), if any, shall also stand disposed of.