Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 830 (RAJ)

Raghuveer Singh v. Ridmal Singh

2014-04-02

ARUN BHANSALI

body2014
Judgment : Heard learned counsel for the parties on applications filed by the appellant under Order XXII, Rule 4 & 10 CPC and application under Section 5 of the Limitation Act, 1963 read with Order XXII, Rule 9 CPC. It is inter-alia indicated in the application that respondent-defendant Nos.3 & 7 have expired on 31.7.2009 and 26.8.2007 respectively and therefore, it is prayed that their legal representatives be taken on record, the delay in filing application under Order XXII, Rule 9 CPC be condoned and the abatement be set-aside. It may be noticed that the suit was dismissed by the trial court by its judgment and decree dated 21.7.2006, against which, first appeal was preferred by the appellant and the same was rejected by the lower appellate court on 25.10.2010 i.e. the said respondent Nos.3 & 7 had died during the pendency of the first appeal. A reply to the application under Order XXII, Rule 9 CPC has been filed by learned counsel appearing for the proposed respondent No.7/1 Hem Singh inter-alia indicating that the first appeal itself had abated and therefore, the legal representatives cannot be impleaded in the present second appeal and consequently, the appeal deserves to be dismissed as having abated. It is submitted by learned counsel for the appellant, on the strength of two judgments of this Court in Nanhe Khan v. Ram Das : 1985 RLR 748 and Udai Ram v. Dharam Chand : AIR 1994 Rajasthan 187, that in a circumstance where in an appeal a decree is passed in ignorance of the fact that of one of the defendant-respondent has died during the pendency of the appeal, the decree passed by the appellate court may be set-aside and the matter be remanded back to the trial court for considering the fact of abatement and / or setting aside of the same. Opposing the submission, learned counsel for the proposed legal representative submitted that the application is sought to be moved after a passage of almost eight years and such a huge delay even otherwise cannot be condoned and therefore, the remanding of the matter in such circumstance does not arise. Reliance was placed on a judgment of the Hon'ble Supreme Court in Balwant Singh (Dead) v. Jagdish Singh & Ors. : AIR 2010 SC 3043 . Reliance was placed on a judgment of the Hon'ble Supreme Court in Balwant Singh (Dead) v. Jagdish Singh & Ors. : AIR 2010 SC 3043 . It was further submitted that the suit was filed seeking injunction, which has been dismissed by both the courts below and therefore, in case the plaintiff has any right, the same can independently be enforced against the legal representatives. So far as the present decree passed by the appellate court is concerned, the same need not be disbursed by this Court. Learned counsel for the appellant submitted that the land in dispute regarding which the appellant is seeking right of way and has sought declaration is a joint property and all the respondents are co-sharers and therefore, it cannot be said that the decree passed is a separable decree qua the deceased defendants and therefore, the submissions made by learned counsel for the proposed respondent in this regard has no basis. I have considered the rival submissions. Admittedly, the suit was filed by the appellant seeking declaration of right of way from the land of the respondents No.1 to 9 and permanent injunction against them. The suit was dismissed by the trial court by its judgment and decree dated 21.7.2006, against which an appeal was filed before the first appellate court, during the pendency of the said appeal, the respondent No.3 Bhag Singh expired on 31.7.2009 and the respondent No.7 Dhool Singh expired on 26.8.2007. However, no steps were taken by the appellant for bringing on record their legal representatives. The appeal was decided by the first appellate court rejecting the same on 25.10.2010, against which the present second appeal was filed before this Court on 10.1.2011. When notices were sent to the respondents, the above fact was reported that the respondent Nos.3 & 7 had died, whereafter the present applications as noticed hereinbefore were filed. A bare look at the provisions of Order XXII, Rules 3 & 4 CPC would reveal that the provisions are applicable when the death of the plaintiff/defendant and/or appellant/respondent takes place during the pendency of the proceeding and therefore, application under the said provisions cannot be made when the suit/appeal is filed against a dead person. Admittedly, the respondent Nos.3 & 7 were dead when the appeal was filed against them, therefore, the provisions of Order XXII, Rule 4 CPC cannot be invoked by the appellant. Admittedly, the respondent Nos.3 & 7 were dead when the appeal was filed against them, therefore, the provisions of Order XXII, Rule 4 CPC cannot be invoked by the appellant. So far as submission made by learned counsel for the appellant based on the judgments of this Court in Nanhe Khan (supra) and Udai Ram (supra) is concerned and the contra submissions made by learned counsel for the proposed respondent is concerned, when admittedly, the suit was filed by the appellant seeking right of way from the property, which is jointly owned by 9 respondents and has further sought declaration and injunction in this regard, it cannot be said that even if the present appeal and / or the appeal before the appellate court stands abated against the respondent Nos.3 & 7, the appeal can be maintained against the other respondents. The law laid down by this Court in similar circumstances appears to be well settled as this Court in Nanhe Khan observed as under:- “An application u/o.22, Rr.9 & 10-A, read with Sec. 151, CPC, has been filed by respondent No.1 Ramdas. In this application it has been mentioned that respondent Ramdas filed a suit for rent and ejectment against Nanhekhan appellant and Kamruddin respondent No.2. That suit was decreed against Nanhekhan and Kamruddin. Then an appeal was preferred by Nanhekhan and Kamruddin in the court of Additional District Judge, Gangapur City (for short hereinafter, “the ADJ”). It is alleged that during the pendency of the first appeal, Kamruddin expired on 16th Jan., 80. No application was filed by either Nanhekhan or anybody else to bring the legal representatives, of the deceased Kamruddin on the record. The first appellate court rejected the appeal of Nanhekhan and Kamruddin and maintained the judgment and decree passed by the lower court. The present second appeal has been filed by Nanhekhan, and Kamruddin has been shown as proforma respondent No.2. 2. Mr. Tibrewal has filed a reply to the application filed by respondent No.1. It has been admitted that Kamruddin died on 16th Jan., 80. It is contended that it was not necessary to bring the legal representatives of Kamruddin on record, because, he was never in possession of the disputed property. This fact is admitted that Kamruddin died during the pendency of the first appeal and the learned ADJ rejected the appeal filed by the both. It is contended that it was not necessary to bring the legal representatives of Kamruddin on record, because, he was never in possession of the disputed property. This fact is admitted that Kamruddin died during the pendency of the first appeal and the learned ADJ rejected the appeal filed by the both. The argument on behalf of the respondents is that appellant Nanhekhan who is the son-in-law of Kamruddin, had the knowledge of the death of Kamruddin, and therefore, the legal representatives of Kamruddin ought to have been brought on the record, and as the legal representatives have not been brought on the record, the whole appeal in the first appellate court had abated, and as such, the decree passed by the first appellate court, is no decree in the eye of law. During the course of argument, it was urged that the question of abatement is to be decided by the first appellate court, because, Kamruddin died during the pendency of the appeal in the first appellate court. 3. In this view of the matter, the judgment of the first appellate court, is set aside the case is remanded back to the first appellate court for deciding the legal aspect on the death of Kamruddin. The first appellate court would decide whether on the death of Kamruddin and without bringing his legal representatives on the record, the appeal should have proceeded or abated. The status quo as it exists today, shall continue. There will be no order as to costs.” Further though not noticing the judgment in the case of Nanhe Khan, this Court again in Udai Ram (supra) came to almost similar conclusion wherein it held and observed as under:- “3. At the outset, it was urged by the learned counsel for the appellant that before the lower appellate Court during the pendency of the appeal one of the defendants respondents Hazari died on 1.3.1984 but his legal representatives have not been brought on record at any time. The appeal before the Additional District Judge, Chittorgarh abated so far Hazari was concerned and as the decree of dismissal of the suit was joint and indivisible one, the appeal against remaining respondents also could not have proceeded. He, therefore, contends that decree having been passed against dead person is nullity and cannot be sustained. 4. The appeal before the Additional District Judge, Chittorgarh abated so far Hazari was concerned and as the decree of dismissal of the suit was joint and indivisible one, the appeal against remaining respondents also could not have proceeded. He, therefore, contends that decree having been passed against dead person is nullity and cannot be sustained. 4. The fact of death of one of the respondents before lower appellate Court on 1.3.1984 has not been disputed by the learned counsel for the respondent and this fact is also not in dispute that no application to bring legal representatives of deceased Hazari was made. However, it is not known, who are the legal representatives of the deceased Hazari. It is also not known whether in the absence of any other legal representatives, or otherwise right to sue survive to the remaining defendant respondents. 5. The consensus of legal opinion in such circumstances appears to be that where in an appeal a decree is passed in ignorance of death of one of the defendants respondents during the pendency of that appeal, the appeal abates against the dead person. The High Court in appeal against such a decree cannot itself set aside the abatement nor can it affirm the decree passed by the lower appellate Court. The proper course in such a case is to set aside the ineffective decree passed by the lower appellate Court and, remand the case to the Court where abatement has taken place leaving the parties to take necessary steps to have the effect of abatement set aside if they so desire and if they can satisfy the Court that parties are entitled to get the abatement set aside under law. ............. 6. Keeping in view the aforesaid principles which are fully applicable to the facts of the present case, the decree passed by the Additional District Judge, Chittorgarh dated 11.12.1989 is set aside and the case is sent back to the lower appellate Court where during the pendency of that appeal Hazari, defendant respondent No.2 had died resulting in abatement of appeal against him to enable the appellant, Dharamchand, before the Additional District Judge, Chittorgarh, to take steps to set aside the abatement if so advised. The lower appellate Court shall decide the matter in accordance with law.” (emphasis supplied) So far as the plea raised by the proposed respondent that the appellant himself is a co-owner of the land in question and being neighbour cannot claim ignorance about the death of respondent Nos.3 & 7 is concerned, it would be open for the respondents to raise all the factual pleas including reliance on the judgment in the case of Balwant Singh (supra) and any other judgment relevant to the issue, in case the appellant takes proceedings for getting the abatement set-aside before the first appellate court. In view of the above discussion, the applications filed by the appellant are dismissed as not maintainable. The judgment of the first appellate court is set-aside. The case is remanded back to the first appellate court where during the pendency of that appeal, the respondent Nos.3 & 7 had died resulting in abatement of appeal against them to enable the appellant to take steps to set-aside the abatement, if so advised. The lower appellate court shall decide the matter in accordance with law without being influenced by the fact that the matter has been remanded by this Court. With the above observations and directions, the appeal stands disposed of. The stay application is dismissed.