Amar Nath vs Ram Nath and others

Rajendra Nath Mittal, J.—This appeal has been filed by Amar Nath, defendant, against the judgment and decree of the Additional District Judge, Faridkot, dated 14th November, 1973.

Briefly, the facts are that Ram Nath, plaintiff, instituted a suit for dissolution of partnership, rendition of accounts and recovery of the money that may be found due after the accounts were rendered, against Amar Nath, partner, and Prabh Dayal, Mukhtiariam of the firm. The suit was contested by the defendants.

The trial Court passed a preliminary decree in favour of the plaintiff. The defendants went up in appeal before the Additional District Judge, Faridkot. During the pendency of the appeal Prabh Dayal died. Amar Nath the surviving appellant filed an application on 2nd February, 1972 stating that Prabh Dayal had died about four months back and that he had come to know about his death a month back Consequently, he prayed that the legal representatives of the deceased be impleaded as appellants The application was opposed by the plaintiff respondent who pleaded that Prabh Dayal had died about five months ago and that the application having been filed after more than 90 days the appeal stood abated as a whole. The learned Additional District Judge held that the application was not for setting aside the abatement as contemplated by Order 22 Rule 9 of the CPC and that it was not maintainable by the co-appellant In view of the above said observations he dismissed the application He also further held that after the abatement of appeal against Prabh Dayal, the appeal abated as a whole. In view of the said findings he dismissed the appeal as having abated. Amar Nath the surviving appellant has come up in second appeal to this Court.

The first contention of the learned counsel for the appellant is that the surviving appellant can move an application for impleading the legal representatives of the deceased-appellant and the finding of the appellate Court to the contrary is erroneous.

I have considered the argument of the learned counsel and find substance in it. Clause (2) of Rule 9 of Order 22 makes a provision as to who can make an application for setting aside the abatement. The clause reads as follows:--

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

Rule 11 provides that while applying the provisions of Order 22 to appeals the word "plaintiff" would include an appellant, the word "defendant" a respondent and the word "suit" an appeal. From a conjoint reading of the clause and Rule 11 it is evident that an application for setting aside an abatement can be made by the legal. I representative of the deceased or the surviving appellant, if any. If the Legislature meant that only the legal representative of the deceased could make such an application, there was no idea to add the word plaintiff/appellant in the clause. It is well settled that where the language of a statute is plain and unambiguous, the courts must give effect to it. Similarly, it is provided in clause (1) of Rule 3 that an application for impleading the legal representative of the deceased-appellant can be made by the surviving appellant, if any, or the legal representative of the deceased. The learned counsel for respondent No. 1 made reference to Mathevan Damodaran and Others Vs. Saraswathi Amma and Others, wherein it is held that an application under Order 22 Rule 3 for impleading the legal representative of the deceased-appellant an application under Order 22 Rule 9(3) for setting aside the abatement can be made only by the legal representatives of the deceased. With great respect to the learned Judge, I have not been able to persuade myself to accept the view expressed in that case.

The second submission of the learned counsel for the appellant is that even if the application by the surviving appellant was not for setting aside the abatement but only for impleading the legal representatives of the deceased a prayer for setting aside the abatement would be implied as it was filed after the expiry of the period of 90 days. To support his contention he made reference to Bachan Ram and Others Vs. The Gram Panchayat Jonda and Others, and Union of India v. Kundan (1977) 79 P.L.R.D. 86

I find force in this submission too In case an application for impleading the legal representatives of a deceased appellant has been made after the time prescribed for making the application that would imply the prayer for setting aside the abatement though no prayer to that effect has been made therein. I am fortified in the above view by the observation of this Court in Bachan Ram''s case (supra) where in it was held that an application made to bring the legal representatives of the deceased-defendant on record after the time prescribed therefor by law should ordinarily be treated as an application for setting aside the abatement of the suit which has taken place. This ratio was followed by a Division Bench of Delhi High Court in Kundan''s case (supra) and similar observations were made therein. I am in respectful agreement with the above view

Now the question arises as to whether there are sufficient reasons for setting aside the abatement. It has not been gone into by the learned 1st appellate court for the reason that it came to the conclusion that there was no application for setting aside the abatement and also that the application by the surviving appellant could not be filed The question in view of the above findings, is now required to be gone into by that Court.

The learned appellate Court also held that the appeal abated as a whole. If it now comes to the conclusion that there were sufficient reasons for not filing the application for impleading the legal representatives in time, there will be no necessity to give any finding on this matter and consequently I leave it open.

For the aforesaid reasons I accept the appeal, set aside the judgment and decree of the 1st appellate court and remand the case to it for fresh decision The parties are directed to appear before the District Judge, Faridkot on 25th March, 1983 who shall decide the appeal himself or entrust it to a Court of competent, jurisdiction for decision. No order as to costs.