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Jharkhand High Court · body

2017 DIGILAW 1842 (JHR)

Raghubir Mahto v. Chandra Nath Karmali

2017-11-02

APARESH KUMAR SINGH

body2017
JUDGMENT : 1. The appeal has been put up today on number of interlocutory applications. All have been filed by the Appellant, except I.A. No. 8683 of 2013, which has been filed by the Respondents. Different interlocutory applications filed on behalf of the Appellants are in effect seeking substitution of one or the other Appellants or the Respondents who have died during pendency of the appeal. In some of the I.A.s the Appellants have also sought setting aside of abatement and condonation of delay for seeking substitution of the deceased parties. 2. Through I.A. No. 8683 of 2013, Respondents have sought abatement of appeal itself on account of the death of several parties during pendency of the appeal. 3. Learned counsel for the Appellants submits at the outset that the suit was preferred by the Plaintiff/Respondents against the entire villagers of Khurdh Jamira, P.S. Ramgarh, District Hazaribag ( Now Ramgarh). The suit was decreed in favour of the Plaintiffs giving reasons to the aggrieved Defendants to prefer the instant appeal. Since the Appellants were large number of villagers being 57 in number and Plaintiffs/Respondents also being 12 in number and other proforma Respondents also being 27 in number, likelihood of death of one or the other party during long pendency of the appeal is always an eventuality not within the control of either of the Appellants or the Respondents. That is why the death of one of the Appellants or the Respondents was not accurately known or informed to the counsel representing parties during pendency of the appeal. Therefore, it has been recorded in the order dated 5.12.2013 that both counsels appearing for the Appellants as well as Respondents informed the Court that some of the Appellants and the Respondents have died but not substituted through their legal heirs/representatives. In view of the information, learned counsel for both the side were directed to furnish details with regard to the respective Appellants and Respondents who were no more in this world so that petition for substitution may be filed. It was only thereafter that I.A.s, such as I.A. No. 9174 of 2013 seeking substitution of deceased Appellant no. 7,11,26,33,34,41,42,46,54 was filed while I.A. No. 9166 of 2013 seeking substitution of deceased Respondent no.20,21,25 and 29 were also filed. It was only thereafter that I.A.s, such as I.A. No. 9174 of 2013 seeking substitution of deceased Appellant no. 7,11,26,33,34,41,42,46,54 was filed while I.A. No. 9166 of 2013 seeking substitution of deceased Respondent no.20,21,25 and 29 were also filed. Other I.A.s such as I.A. No. 1092 of 2014 seeking substitution of Appellant no.17, I.A. No. 2737 of 2014 seeking substitution of Respondent No.13 were also filed immediately thereafter. Some more I.A.s have been filed such as I.A. No. 6920 of 2016 seeking substitution of Appellant no.53,who died on 13.2.2016, I.A. No. 5661 of 2017 for substitution of Appellant No. 46 have also been filed by the Appellants. Since the death of number of Appellants mentioned in I.A. No. 9174 of 2013 had taken place long back, beyond the limitation period for seeking substitution, separate prayer for setting aside the abatement of appeal as against those Appellants and condonation of delay in making such prayer have also been made through I.A. No. 5802 of 2017 and I.A. No. 1091 of 2014 respectively. Similarly in respect of I.A. No. 9166 of 2013 also separate application being I.A. No. 5801 of 2017 was preferred for setting aside of abatement of appeal as against deceased Respondents. In rest of the I.A.s, some applications praying for substitution have been made within time, while prayer for setting aside of abatement after condonation of delay has been made in I.A. No. 6920 of 2016. In I.A. No. 5660 of 2017 prayer for substitution of Appellant No. 53 and Appellant No. 32 respectively has been made after period of limitation. 4. Learned counsel for the Appellants submits that chronology of facts would itself show that there are no deliberate latches on the part of the Appellants for seeking substitution of large number of parties in the appeal. He further submits that Appellant No. 41, Bhaglal Bedia was actually the pairwikaar on behalf of the Appellants, who himself had died on 8.12.2008 and therefore the information relating to the death of even the Appellants could not be brought to the notice of learned counsel representing them. 5. Learned counsel for the Respondents also did not have the information till 5.12.2013 about the death of one or the other Respondents. Since such information could not be conveyed to learned counsel for the Appellants, steps for substitution of those Respondents could not be taken in respect of them earlier. 5. Learned counsel for the Respondents also did not have the information till 5.12.2013 about the death of one or the other Respondents. Since such information could not be conveyed to learned counsel for the Appellants, steps for substitution of those Respondents could not be taken in respect of them earlier. He submits that interest of justice would suffer if such prayer for-3 setting aside of the abatement, after condonation of delay in preferring such application is not allowed. It would therefore be proper that deceased Appellants and Respondents both are allowed to be substituted so that appeal can be heard in the presence of necessary parties/their legal heirs on merits. Learned counsel for the Respondents have not filed any individual reply to the I.A.s preferred by the Appellants as above , though earlier I.A. No. 8683 of 2013 in general was filed seeking abatement of the entire appeal itself. 6. I have considered the submission of the parties. In an appeal of such nature where large number of Appellants and Respondents are parties, it cannot be lost sight of that death of one or the other parties is a contingent eventuality, which if not properly brought to the notice of the learned counsels representing them within time, leads to the abatement of the appeal vis-a-vis one or the other Appellants/Respondents. From the chronology of facts noticed hereinabove, it appears that both learned counsel for the parties were not aware of the details of the death of the Appellants or some of the Respondents when the matter was taken on 5.12.2013. Thereafter two I.A.s being I.A. No. 9174 of 2013 and I.A. No. 9166 of 2013 seeking large scale substitution of the Appellants or the Respondents were duly made on behalf of the Appellants. The Appellants realizing that the appeal might have abated as against deceased parties, also subsequently filed I.A.s for setting aside the abatement after condonation of delay in terms of Order 22 of the Civil Procedure Code. Some of the parties appear to have died thereafter also, as noticed hereinabove. Other I.A. No. 1092 of 2014, I.A. No. 2737 of 2014, I.A. No. 6920 of 2016, I.A. No. 5660 of 2017 and I.A. No. 5661 of 2017 were filed with a prayer for setting aside of abatement after condonation of delay. 7. Some of the parties appear to have died thereafter also, as noticed hereinabove. Other I.A. No. 1092 of 2014, I.A. No. 2737 of 2014, I.A. No. 6920 of 2016, I.A. No. 5660 of 2017 and I.A. No. 5661 of 2017 were filed with a prayer for setting aside of abatement after condonation of delay. 7. Taking a holistic view of the matter, this Court considers that interest of justice would be better served if prayer for substitution of the parties as prayed for in these I.A.s are allowed, otherwise, for death of one or the other Appellants or Respondents in such as suit/appeal where there are large number of parties, the appeal itself might abate leading to no decision on merits. 8. In that view of the matter, prayed made in the aforesaid I.A.s are allowed after setting aside the abatement of appeal and condonation of delay as prayed for in cases of individual deceased Appellants/Respondents. The proposed legal heirs of the Appellants/Respondents be duly substituted.-4 Some of the proposed legal heirs of the deceased Appellants have reportedly appeared as it also appear from the office note. Learned counsel for the Appellants would take steps for service of notice on the legal heirs of the remaining deceased Appellants and Respondents after due inspection and verification from the record within a period of 4 weeks under ordinary process. Learned counsel for the Appellants would file fresh memo of the parties also within the same period. I.A. No. 8683 of 2013 9. In view of the aforesaid order, this Court is not inclined to allow the prayer made I.A. No. 8683 of 2013 for declaration of appeal as abated. The same is accordingly rejected.