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2014 DIGILAW 871 (HP)

Ram Pal v. Subhadra Devi

2014-07-09

DHARAM CHAND CHAUDHARY

body2014
JUDGMENT : - Dharam Chand Chaudhary, Judge. (Oral) Plaintiff Ram Pal is in second appeal before this Court as he is aggrieved by the judgment and decree passed by learned Additional District Judge, Una in Civil Appeal No. 60/2010 whereby the judgment and decree passed by learned Civil Judge (Senior Division), Una in case No. 10/1996 has been affirmed and the appeal dismissed. 2. The appeal is time barred. An application registered as CMP(M) No. 11019/2013 has been filed under Section 5 of the Limitation Act for condonation of delay, as occurred in filing the main appeal. It is during the course of service of the respondents, in CMP(M) No. 11019/2013 aforesaid, it transpired that respondent No. 10, herein Mukhtiar Singh (defendant No. 3 in the trial Court) is now no more being expired on 30.04.2011, during the pendency of the appeal in the lower Appellate Court. Deceased respondent-defendant Mukhtiar Singh was a contesting party in the suit, as he has filed the written statement and also contested the same. This has led in filing two applications one under Order 22 Rule 4 read with Section 151 CPC and another under Section 5 of the Limitation Act, registered as CMP(M) Nos. 766 and 767 of 2014 for substitution of his legal representatives on condonation of delay. 3. Admittedly, the factum of death of deceased respondent Mukhtiar Singh was neither brought to the notice of learned Appellate Court nor any steps taken for substitution of his legal representatives. The dismissal of the appeal preferred by the appellant-plaintiff by learned lower Appellate Court, no doubt, is in favour of the deceased and other defendants, however, nullity, as the Apex Court in Kishnu @ Ram Kishnu versus Bihari, AIR 2005 Supreme Court 3799 has held that a judgment against or in favour of a dead person is nullity. 4. 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 Smt. Tripta Devi the General Power of Attorney of appellant-plaintiff Ram Pal has been filed along with this application {CMP(M) No. 766 of 2014}. In support of the affidavit, a copy of the death certificate has also been filed on the record of this appeal. No doubt, affidavit of Smt. Tripta Devi the General Power of Attorney of appellant-plaintiff Ram Pal has been filed along with this application {CMP(M) No. 766 of 2014}. 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 the record of this appeal cannot be looked into. The appellant may bring the same on the record of lower appellate Court while seeking the substitution of the legal representatives of deceased defendant-respondent, Mukhtiar Singh and raising the question of setting aside the abatement of the appeal, if any. 5. 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 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 in that case was set aside being against a dead person and the case was ordered to be 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. 6. 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 of 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. 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.” 7. 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 on condonation of delay and set aside the impugned judgment and decree and also remand the case to learned lower appellate Court for fresh disposal after deciding the question of substitution of legal representatives of deceased defendant-respondent, Mukhtiar Singh and the abatement of the appeal, if any, and if the appeal is abated, the abatement should be set aside or not. 8. 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 to take consequential steps as he deems appropriate and decide the question of substitution of legal representatives of the deceased defendant-respondent, Mukhtiar Singh and also the question of abatement of the appeal, if any, after affording due opportunity of being heard to the other party. All the three applications and also the main appeal shall stand accordingly disposed of. The main appeal be also registered before consignment of the record. The parties through learned Counsel representing them are directed to appear before learned lower appellate Court on 26th July, 2014. The record requisitioned from learned lower appellate Court be returned forthwith along with a copy of this judgment.