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2021 DIGILAW 373 (HP)

Chughi Devi & Ors. v. Nika Ram & Ors.

2021-07-05

VIVEK SINGH THAKUR

body2021
JUDGMENT Vivek Singh Thakur, J. - Predecessor-In-Interest of appellants No.1 to 4 and proforma respondents No.6 to 10 had filed Civil Suit No.54 of 2007 and for their death during pendency of the suit, appellants No.1 to 4 and respondents No.6 to 10 were brought on record as plaintiffs. Suit was dismissed vide judgment and decree dated 30.06.2015, passed by learned Civil Judge (Junior Division) Court No.2, Sundernagar, District Mandi, H.P., in Civil Suit No.54 of 2007, titled as Parwati (deceased through L.Rs.) vs. Nikka Ram & others. 2. Dismissal of the suit was assailed by the appellants No.1 to 4 by filing Civil Appeal No.187 of 2015, titled as Chughi Devi & others vs. Nikka Ram & others. Whereas, other plaintiffs, who are respondents No.6 to 10, did not opt to assail the judgment and decree passed by the trial Court and thus in first appeal also, were arrayed as proforma respondents No.6 to 10 alongwith other defendants and proforma defendants. This appeal was dismissed by learned Additional District Judge, Sundernagar, District Mandi, H.P., vide judgment and decree dated 10.11.2020. 3. Present Regular Second Appeal has been preferred by appellants No. 1 to 4 assailing aforesaid judgment and decree dated 10.11.2020 passed in Civil Appeal No.187 of 2015, arraying parties in the same fashion as were before learned Additional District Judge Sundernagar. 4. On issuance of notice to respondents all other respondents except respondent No.6 were served, and it was reported that respondent No.6 had expired during pendency of the first appeal which is also evident from the death certificate of respondents No.6, placed on record by the appellants alongwith CMP(M) No.348 of 2021 which indicates that he had expired on 28.07.2018 i.e. after filing of the first appeal on 31.07.2015, but before dismissal thereof vide judgment and decree dated 10.11.2020. Respondent No.6 was one of the plaintiffs, however, he did not assail the impugned judgment and decree whereby suit was dismissed. But before First Appellate Court, he had attended the proceedings by ensuring his representation through his learned counsel and was duly represented. 5. Respondent No.6 was one of the plaintiffs, however, he did not assail the impugned judgment and decree whereby suit was dismissed. But before First Appellate Court, he had attended the proceedings by ensuring his representation through his learned counsel and was duly represented. 5. This Court, vide judgment dated 24.05.2021, passed in RSA No.261 of 2019, titled as Jaishi Ram vs. Manohar Lal and others after taking into consideration relevant provisions of law as well as judgments passed by this High Court previously and also pronouncements of the Supreme Court in cases Gurnam Singh (Dead) through Legal Representatives and others vs. Gurbachan Kaur (Dead) by Legal Representatives, (2017) 13 SCC 414 ; Sher Singh and others vs. Raghu Ram and others, (1981) ShimLC 25; Ram Rakha and others vs. Brahma Nand and others, (1994) Supp ShimLC 29; Jagdish vs. Ram Karan and others, (2002) 1 CurLJ 232 , referred in Dewana and another vs. Gian Chand Malhotra and others,2011 LatestHLJ 1420 and also judgments in Jaswant Singh vs. State of Himachal Pradesh and others, (2015) 2 ShimLC 674 ; Jagan Nath and others vs. Ishwari Devi, (1988) 2 ShimLC 273 ; Karam Chand and others vs. Bakshi Ram and others, (2002) 1 ShimLC 9 ; and Gurnam Singh (dead) by legal representatives and others vs. Gurbachan Kaur (dead), (2017) 13 SCC 414 , referred in Tara Wati and others vs. Suman & others, (2018) LatestHLJ 1046, has held as under:- "9. It is well settled that a decree in favour of or against a dead person is nullity. For non substitution of legal representatives of deceased defendant, out of several defendants, may cause abatement of appeal against the deceased defendant or as a whole, depending upon the effect of non substitution of legal representatives of deceased defendant on the relief claimed. Appellant/plaintiff has set up a case of ignorance of death of defendants. 10. For non substitution of legal representatives of deceased defendant, out of several defendants, may cause abatement of appeal against the deceased defendant or as a whole, depending upon the effect of non substitution of legal representatives of deceased defendant on the relief claimed. Appellant/plaintiff has set up a case of ignorance of death of defendants. 10. In view of judgments relied upon by the appellant, referred supra, an application for setting aside abatement and substitution of legal representatives of deceased defendants should have been made and dealt with by the Court in which abatement occurred as abatement is automatic irrespective of passing of or not passing of such order by the Court and question whether suit to abate in toto or in part, has also to be decided by the same Court where during pendency of the appeal one of parties had expired before hearing the arguments and where he was a necessary party to the lis and his legal representatives have not been brought on record, and issues as to whether there was sufficient cause for setting aside the abatement or whether legal representatives of deceased are to be brought on record or not in relation to a suit or appeal, at the first instance, are also to be decided by the Court, in which the suit or appeal was pending at the time of death of party and the abatement took place." 6. By way of an amendment applicable to Delhi, Himachal Pradesh, Punjab and Haryana High Courts, there is addition to sub rule (3) of Rule 14 of Order 41 Code of Civil Procedure (CPC), which reads as under:- "Delhi, Himachal Pradesh and Punjab, Haryana and Chandigarh.-(i) Add the following as sub-rule (3): "(3) it shall be in the discretion of the appellate court to make an order, at any stage of the appeal whether on the application of any party or on its own motion, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the court whose decree is complained of, or at any proceedings subsequent to the decree of that court, or on the legal representatives of any such respondent: Provided that- (a) That court may require notice of the appeal to be published in any newspaper or in such other manner as it may direct: (b) No such order shall preclude any such respondent or legal representative from appearing to contest the appeal."" 7. In present case respondent No.6 has contested the suit as plaintiff in the trial Court and was duly represented in the First Appellate Court also. Therefore, benefit of provisions added by way of amendment, referred supra, is also not available to the parties in present case. 8. Consequently, the judgment and decree passed by the Appellate Court is quashed and set aside and case is remanded to first Appellate Court with direction to allow the appellants to take consequential steps on the death of respondent No.6-Traru Ram and thereafter to decide the question of substitution of his legal representatives, if any; and question of exemption to the plaintiffs from necessity of substituting the legal representatives of deceased defendants; and also question of abatement, if any, as the case may be on the basis of steps so taken by the appellants. Needless to say that first Appellate Court shall consider and decide all the pleas and counter pleas of the parties after affording the parties due opportunity of being heard. 9. The contesting parties are directed to ensure their appearance through their learned counsel representing them before learned First Appellate Court on 05.08.2021, either virtually or physically as possible and permissible in peculiar circumstances on account of pandemic Covid-19. 9. The contesting parties are directed to ensure their appearance through their learned counsel representing them before learned First Appellate Court on 05.08.2021, either virtually or physically as possible and permissible in peculiar circumstances on account of pandemic Covid-19. It is made clear that no fresh notice shall be issued to the parties by learned first Appellate Court for ensuring their presence. It is clarified that respondents who have been proceeded ex-parte in the Courts below or in this Court need not to be served afresh. However, in case they appear voluntarily, they shall be permitted to join the proceedings. First Appellate Court shall hear the contesting parties and decide the appeal afresh in accordance with law. 10. Consequential steps on account of death of respondents shall be taken by the plaintiffs/appellants preferably on the first date of hearing, but not later than two weeks thereafter. Reply thereto, if any also be filed within four weeks, positively and the first Appellate Court shall make an endeavor to decide the application and appeal preferably on or before 31.12.2021. 11. Appeal stands disposed of in aforesaid terms alongwith pending applications. 12. Copy of judgment be transmitted to learned first Appellate Court for record/compliance.