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2016 DIGILAW 1264 (HP)

Tarsem Kumar v. State of H. P.

2016-07-04

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. In this petition a prayer has been made to review the judgment dated 14.8.2015, passed by this Court in RSA No.138 of 2004. 2. The appeal preferred by the respondent-State was allowed and the judgment and decree passed by both Courts below quashed and set aside vide the judgment and decree sought to be reviewed. It is pertinent to note that respondents No.8, Onkar Chand, respondent No.9 Moti Ram and respondent No.17 Tilak Raj had already expired, when the appeal was heard and judgment announced. The deceased-respondents were duly represented by a counsel, however, learned counsel has failed to inform this Court qua the factum of death of the said respondent as required under Order 22 Rule 10-A of the Code of Civil Procedure. The State of Himachal Pradesh, appellant in the appeal, has also not taken any step qua their substitution. It is for this reason the appeal came to be heard and decided without taking note of the death of respondents No.8, 9 and 17. 3. This petition has been filed with a prayer to recall the judgment and decree and decide the appeal, after deciding the question of abatement of the appeal on the death of respondents hereinabove and substitution of their legal representatives. 4. A bare perusal of Order 47 Rule 1 CPC makes it crystal clear that a decree or order, from which an appeal is allowed, but no appeal has actually been preferred, should be reviewed on the discovery of new and important matter or evidence, which, after the exercise of due-diligence, was not within the knowledge of the review-petitioner or could not be produced at the time when the decree was passed on account of a mistake. 5. Since the judgment in the main appeal has been passed without taking note of the death of respondents No. 8, 9 and 17, therefore, there is an error apparent on the face of the record and in the ends of justice, the same is required to be corrected by reviewing the judgment and decree in the main appeal. 5. Since the judgment in the main appeal has been passed without taking note of the death of respondents No. 8, 9 and 17, therefore, there is an error apparent on the face of the record and in the ends of justice, the same is required to be corrected by reviewing the judgment and decree in the main appeal. It is worth mentioning that the surviving respondents came to know about non-substitution of the respondents No.8, 9 and 17 and deciding the question of abatement of the appeal on their death, after the appeal was finally heard and decided vide judgment and decree dated 14.8.2015, therefore, on discovery of such facts, this petition has been filed. 6. In the given facts and circumstances, the judgment and decree passed in the main appeal is required to be recalled and the appeal heard as well as decided afresh after deciding the question of abatement of the appeal, if any, on the death of respondents No.8, 9, and 17 and also there being necessity of substitution of their legal representatives, if any. 7. A co-ordinate Bench of this Court in an unreported judgment dated 26.2.2002 passed in CMP(M) (RSA No.294 of 2000) No.562 of 2001, titled Karam Chand & Others versus Bakshi Ram and others, in the similar circumstances has recalled the judgment and decree passed in the main appeal and the appeal heard afresh after deciding the question of abatement and the substitution of the legal representatives of deceased respondents. 8. In view of what has been said hereinabove, this petition is allowed. Consequently, the judgment dated 14.8.2015 passed in RSA No.138 of 2004 is hereby recalled and the appeal restored to its original number and file. The petition is accordingly disposed of. Pending application(s), if any, shall also stand disposed of.