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2014 DIGILAW 860 (HP)

Surat Singh v. Dhajju Ram

2014-07-08

DHARAM CHAND CHAUDHARY

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JUDGMENT : - Dharam Chand Chaudhary, J.(Oral): RSA No. 301 of 2014 & CMP(M) No.886 of 2014. Aggrieved by the judgment and decree dated 30.4.2014 passed by learned Additional District Judge, Sirmaur district at Nahan in Civil Appeal No.63-N/13 of 2013, the appellants-plaintiffs in the trial Court have preferred the present appeal for quashing the same. Annexed to the memorandum of appeal is an application under Order 22 Rules 3 and 9 read with Section 151 of the Code of Civil Procedure and also under Section 5 of the Limitation Act [CMP(M) No.886 of 2014, supra], filed for substitution of the legal representatives of deceased appellant-plaintiff, Smt. Ram Mati, on condonation of delay. Said Smt. Ram Mati has passed away on 20.11.2013, during the pendency of appeal in the lower appellate court. She is survived by S/Shri Randeep, Anil and Kamal Singh, on the basis of ‘will’, she allegedly executed in their favour. 2. Plaintiffs are the appellants and defendants are respondents No.1 to 6. One of the plaintiffs, Smt. Ram Mati (respondent No.2 in the lower appellate Court) has passed away on 20.11.2013, i.e., during the pendency of appeal in the lower appellate Court. The appeal, however, has been decided by learned 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., plaintiff-appellant No.2 in the lower appellate Court. There is no quarrel so as to she died well before pronouncement of judgment by the lower appellate Court. 3. Whether the appeal on her death stands abated for want of consequential steps by the defendants or her legal representatives or not, is a question to be gone into and determined by the lower appellate Court. No doubt, affidavit of one Anil Kumar, legal representative of appellant-plaintiff, Smt. Ram Mati 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 appellants/applicants should bring the same on the record of lower appellate Court to seek substitution of legal representatives of deceased appellant-plaintiff, Smt. Ram Mati. 4. 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 appellants/applicants should bring the same on the record of lower appellate Court to seek substitution of legal representatives of deceased appellant-plaintiff, Smt. Ram Mati. 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 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. 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 plaintiff-appellant, Smt. Ram Mati and that on her 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 respondents-defendants therein to take consequential steps as they deem appropriate and decide the question of substitution of legal representatives of the deceased appellant-plaintiff, Smt. Ram Mati 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 5h August 2014. 8. An authenticated copy of this judgment be sent to learned lower appellate Court {Additional District Judge, Sirmaur district at Nahan}, for compliance and being taken on record. Record be also sent back.