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2014 DIGILAW 1891 (HP)

Mohar Singh v. Devta Shri Shringa Rishi Ji

2014-12-11

SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. The issue, which arises for consideration in the present appeal, filed under the provisions of Order 43 Rule 1(k), read with Section 104 of the Code of Civil Procedure, is as to whether lower Appellate Court erred in dismissing the appeal as abated. 2. Certain facts are undisputed. Plaintiff Devta Shri Shringa Rishi Ji (respondent No. 1 herein) filed suit for mandatory and permanent prohibitory injunction, as also recovery of certain amounts from the defendants, including the present appellants. Suit stands partly decreed by Civil Judge (Senior Division), Kullu, Himachal Pradesh, vide judgment and decree dated 25.7.2011, passed in Civil Suit No. 43 of 2007, titled as Devta Shri Shring Rishi Jee v. Virender Kumar and others, as under: "In view of my discussion and findings on issues No. 1 to 11 above, the suit of the plaintiff is partly decreed and defendants No. 1, 4 to 6 are hereby restrained from making payment to the defendants No. 2 and 3 out of the income of the Devta Shri Shringa Rishi Ji occurring at Temple Bagi at the rate of 15% and the income of Devta outside the temple at the rate of 10% of the total income and to Goor, the defendant No. 7 at the rate of 10% of the income of the Devta. The defendants No. 1, 4 to 6 are directed to disclose the income and expenditure of the Devta to the plaintiff/worshipers. Suit for recovery is hereby dismissed. Parties are left to bear their own costs. Decree sheet be drawn up, accordingly. File, after due completion, be consigned to the Record Room." 3. Learned counsel for the parties invite attention of this Court to the following decisions of Hon'ble Supreme Court of India, as also this Court, as reported in Gurcharan Singh Vs. Surjit Singh and Another, (2012) 4 RCR(Civil) 936; Shyamali Das Vs. Illa Chowdhry and Others, (2006) 12 SCC 300 ; Jet Ply Wood Private Ltd. and Another Vs. Madhukar Nowlakha and Others, (2006) 3 SCC 699 ; Shipping Corporation of India Ltd. Vs. Machado Brothers and Others, (2004) 11 SCC 168 ; Satguru Sharan Shrivastave Vs. Dwarka Prasad mathur (dead) through LRs. and Others, (1996) 10 SCC 293 ; and State of Himachal Pradesh, etc. Vs. Dhuru Ram, etc., AIR 1981 HP 34 . 4. Madhukar Nowlakha and Others, (2006) 3 SCC 699 ; Shipping Corporation of India Ltd. Vs. Machado Brothers and Others, (2004) 11 SCC 168 ; Satguru Sharan Shrivastave Vs. Dwarka Prasad mathur (dead) through LRs. and Others, (1996) 10 SCC 293 ; and State of Himachal Pradesh, etc. Vs. Dhuru Ram, etc., AIR 1981 HP 34 . 4. In view of limited controversy raised in the present appeal, with regard to illegality committed by the Court below, in dismissing the appeal, as a whole, for having been abated, this Court has refrained from dealing with the same as also other rival contentions raised by the parties. 5. Bhagwan Dass (original defendant) expired prior to the presentation of the appeal before the lower Appellate Court. Significantly, the appeal, though presented on 30.8.2011, came up for consideration before the concerned Court on 1.10.2011. On 5.6.2012, original plaintiff filed an application, under the provisions of Order 22 Rule 4 of the Code of Civil Procedure, praying for dismissal of the appeal, as having been abated, for not taking steps for bringing on record the legal representatives of Bhagwan Dass. 6. Significantly, said application stands allowed by the lower Appellate Court, in terms of impugned order dated 26.10.2013, passed by District Judge, Kullu, in Civil Appeal No. 21/2014 (4 of 2013), titled as Mohar Singh v. Devta Shri Shringa Rishi Ji & others. 7. In my considered view, provisions of Order 22 Rule 4 of the Code of Civil Procedure, in the given facts and circumstances, are totally inapplicable. Party-respondent already stood expired, prior to the presentation of the appeal. The fact that Bhagwan Dass died prior to the presentation of the appeal stands observed by the lower Appellate Court in Para-12 of the order. Hence, the first appellate Court erred and committed an illegality in dismissing the appeal only on the ground that it stood abated. As such, present appeal is allowed and the impugned order dated 26.10.2013, passed by District Judge, Kullu, in Civil Appeal No. 21/2014 (4 of 2013), titled as Mohar Singh v. Devta Shri Shringa Rishi Ji & others, is quashed and set aside. The appeal is restored to its original number and position. Lower Appellate Court is directed to decide the appeal in accordance with law. Liberty reserved to the parties to raise all contentions, including the ones raised herein. 8. The appeal is restored to its original number and position. Lower Appellate Court is directed to decide the appeal in accordance with law. Liberty reserved to the parties to raise all contentions, including the ones raised herein. 8. Parties are directed to appear before the first Appellate Court on 9.1.2014. Registrar (Judicial) is directed to ensure that the record is sent back to the Court below well before the date fixed. Appeal stands disposed of, so also the pending application(s), if any.