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2015 DIGILAW 170 (HP)

Savitri Devi v. Vidya Devi

2015-03-12

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. 1. Challenge herein is to the judgment and decree dated 20.4.2001 passed by learned District Judge, Sirmaur at Nahan, in Civil Appeal No. 194-CA/13 of 2000, whereby the judgment and decree passed by learned Senior Sub Judge, Nahan in Civil Suit No. 212/1 of 1995, has been set aside and the appeal allowed. 2. Respondent No.10, Krishana Devi has passed away on 16.10.1998, i.e., during the pendency of the suit in the trial Court. The suit, however, has been partly decreed against the defendants including the deceased defendant No.10 Krishana Devi, by learned trial 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 dead person, i.e., respondent No.10 Krishana Devi. 3. In the appeal preferred by the defendants against the judgment and decree passed by learned trial Court said Smt. Krishana Devi though already dead was also arrayed as appellant No.10. Learned lower appellate Court has accepted the appeal and reversed the judgment and decree passed by the trial Court vide judgment and decree under challenge before this Court in the present appeal. In the present appeal, deceased Krishana Devi, however, has not been arrayed as respondent but annexed to the memorandum of appeal is an affidavit sworn in by appellant-plaintiff Ram Chander pointing it out therein that Smt. Krishana Devi defendant No.10 had died on 16.10.1998 (during the pendency of the suit). The death certificate has also been annexed to the memorandum of appeal. The appeal has been admitted on the following substantial question of law: “1. Whether the learned District Judge, in the facts and circumstances of the case, has misconstrued, misinterpreted and misapplied agreement for sale Ex.PW-1/A, Rupatrojnamcha dated 10.11.1971 Ex.PA. Jamabandies Ex.PW1/B to Ex.PW1/F, report of the Local Commissioner Ex.DA, statement of plaintiff before the Local Commissioner in holding that the plaintiff is not in possession of the suit land? 3. Whether appeal filed on 21.8.2000 by the defendants in the first appellate Court was incompetent in view of joining of Smt. Krishna Devi as appellant in the first appellate Court, who had already died on 16.10.1998 and, therefore, the impugned judgment and decree have vitiated and are nonest?” 4. 3. Whether appeal filed on 21.8.2000 by the defendants in the first appellate Court was incompetent in view of joining of Smt. Krishna Devi as appellant in the first appellate Court, who had already died on 16.10.1998 and, therefore, the impugned judgment and decree have vitiated and are nonest?” 4. Substantial question of law No.3 pertains to the competency of the appeal in the lower appellate Court to join Smt. Krishana Devi, who as a matter of fact was dead during the pendency of the suit in the trial Court as appellant in the appeal. 5. There is no quarrel so as to defendant No.10 Krishana Devi has died during the pendency of the suit in the trial Court. The suit was decreed against her and other defendants without taking note of the factum of her death because neither the plaintiff had taken consequential steps on her death nor the surviving defendants brought the factum of her death to the notice of the trial Court. 6. The appeal is at the stage of final hearing and was heard for sometime on the previous date when learned counsel on both sides sought time to address this Court on the question as to what is the impact of death of deceased defendant No.10 Krishana Devi during the pendency of the suit and failure on the part of the respondent-plaintiff to take consequential steps. Learned counsel on both sides are in agreement that the judgment and decree passed by the trial Court and for that matter by learned lower appellate Court also is nullity being against/in favour of a dead person. 7. Whether the suit on the death of respondent Krishana Devi stands abated for want of consequential steps by the appellant/plaintiff or her legal representatives or not, is a question to be gone into and determined by learned trial Court. No doubt, affidavit of appellant-plaintiff Ram Chander has been filed along with this appeal supported by the death certificate of deceased respondent Krishana Devi. However, such material placed on record cannot be looked into by this Court and appellant should bring the same on the record of learned trial Court to seek substitution of legal representatives of deceased respondent Krishana Devi. 8. A Co-ordinate Bench of this Court in Jagan Nath and Others vs. Smt. Ishwari Devi, 1988 (2) Shim. However, such material placed on record cannot be looked into by this Court and appellant should bring the same on the record of learned trial Court to seek substitution of legal representatives of deceased respondent Krishana Devi. 8. A Co-ordinate Bench of this Court in Jagan Nath and Others vs. 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. 9. A Co-ordinate Bench of this Court, in Karam Chand and Others vs. 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 bring 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. (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.” 10. The apex Court in Kishnu @ Ram Kishnu vs. Bihari, AIR 2005 SC 3799 has also held that a judgment against or in favour of a dead person is nullity. 11. The apex Court in Kishnu @ Ram Kishnu vs. Bihari, AIR 2005 SC 3799 has also held that a judgment against or in favour of a dead person is nullity. 11. In view of the legal as well as factual position discussed hereinabove, this Court is not left with any other and further option except to allow this appeal and set aside the impugned judgment and decree and remand the case to learned trial Court for deciding the question of substitution of legal representatives of deceased respondent Krishana Devi and that on her death the suit stands abated or not and thereafter to dispose of the suit afresh on merits after deciding the questions of abatement of suit and substitution of the legal representatives of deceased respondent Krishana Devi. 12. For all the reasons hereinabove, the impugned judgment and decree is set aside and the case is remanded to the learned trial Court with a direction to allow the appellant-plaintiff herein to take consequential steps as he deems appropriate and decide the question of substitution of legal representatives of deceased respondent Krishana Devi and also the question of abatement of the suit, if any, after affording due opportunity of being heard to the parties. The parties through learned counsel representing them are directed to appear before learned trial Court on 30th March, 2015. The trial Court to dispose of the suit expeditiously, however, not later than 30th September, 2015. Pending applications, if any shall also stand disposed of. No order so as to costs. 13. Records be sent back along with a copy of this judgment so as to reach in the trial Court well before the date fixed.