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2014 DIGILAW 379 (HP)

Kuldeep Singh v. Gurdev Singh

2014-04-10

DHARAM CHAND CHAUDHARY

body2014
Judgment : Dharam Chand Chaudhary, J.(Oral): Challenge herein is to the judgment and decree dated 19.3.2013 passed by learned Additional District Judge, Fast Tract Court, Una in Civil Appeal No.62/2009, whereby the judgment and decree passed by learned Civil Judge (Junior Division), Court No.2, Amb, District Una in Civil Suit No.10/1999, has been affirmed and the appeal dismissed. 2. Plaintiff is the appellant and defendants are respondents No.1 to 13. One of the defendants, Raghubir Singh (respondent No.10 herein) has passed away on 22.08.2011, i.e., during the pendency of the appeal in the lower appellate Court. The appeal, however, has been decided by learned lower appellate Court without taking note of his 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., defendant- respondent, Raghubir Singh. There is no quarrel so as to he died well before pronouncement of judgment in the appeal by the lower appellate Court. 3. Whether the appeal on his death stands abated for want of consequential steps by the surviving defendants or his legal representatives or not, is a question to be gone into and determined by the lower appellate Court. No doubt, affidavit of appellant-plaintiff Kuldeep Singh has been filed along with this appeal. In support of the affidavit, a copy of the death certificate has also been filed on the record of this appeal. However, such material placed on record cannot be looked into by this Court and appellant should bring the same on the record of lower appellate Court to seek substitution of legal representatives of deceased defendant-respondent, Raghubir Singh. 4. A co-ordinate Bench of this Court in agan Nath and others v. mt. Ishwari Devi,11988 (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 aram Chand and others v. akshi Ram and others, 2002 (1) Shim. 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 aram Chand and others v. akshi 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 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 abatement, if any, took place.” 6. In view of the legal as well as factual position discussed hereinabove, this Court is left with no 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 defendant-respondent, Raghubir Singh and that on his death the appeal stands abated or not and thereafter to dispose of 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 appellant-plaintiff therein to take consequential steps as he deems appropriate and decide the question of substitution of legal representatives of the deceased defendant-respondent, Raghubir Singh and also the question of abatement of the appeal, if any, after affording due opportunity of being heard to the other party. The parties through learned Counsel representing them are directed to appear before learned lower appellate Court on 20th May 2014. 8. An authenticated copy of this judgment be sent to learned lower appellate Court {Additional District Judge, Fast Tract Court, Una}, for compliance and being taken on record. Record be also sent back.