Awadh Behari Singh vs Munni Singh & Anr.

Umeshwar Pandey, J.—This appeal under Order XLIII, Rule 1 (k) has been filed against the order dated 971986 passed by the Additional District Judge, Ballia whereby the appellant Awadh Behari Singh''s petition under Order XXII, Rule 9 C.RC. moved for setting aside the abatement and to record the substitution of the deceased appellant was rejected.

The brief facts are .that the respondents Kamta Singh and Munni Singh filed a suit against the two brothers Ram Avadh Singh (deceased) and the present appellant Avadh Behari Singh in the trial Court. The suit was decreed vide judgment dated 1171979. Thereafter out of two defendants only Ram Avadh Singh filed an appeal before the District Judge and his brother Awadh Behari Singh was made a respondent in it. While the appeal (CA No. 250/1979) was pending, the appellant Ram Avadh Singh died on 3071983 leaving the present appellant his brother Awadh Behari Singh as the sole heir. The appellant Awadh Behari Singh moved the Lower Appellate Court vide application dated 2311984 for his substitution at the place of his deceased brother. That application was contested and objections were filed from the side of other respondents. The learned Lower Appellate Court after having heard the parties and on placing reliance upon a decision of Division Bench of this Court in case of Thakur v. Mst. Maida Kaur & Ors., reported in AIR 1954 Aild. 305, found that the appellantAwadh Behari Singh could not be legally transposed as an appellant and accordingly his prayer for substitution after setting aside the abatement of appeal, was refused by the impugned order.

The learned Counsel for the appellantAwadh Behari Singh contends that since one of the defendants, who had not preferred an appeal against the decree passed by the trial Court, was already there on record as a respondent in the first appeal, the said appeal could not abate. In support of this contention, reliance has been placed upon the case law of Munney Khan v. Kallo Singh & Ors., reported in 1986 ACJ 235 and also case law of Mahabir Prasad v. Jage Ham & Ors., reported in AIR 1971 SC 742. With the strength of the aforesaid principle of law, the learned Counsel for the appellant has emphasised that in the present case the only thing which was required to be done by the Lower Appellate Court was to transpose Awadh Behari Singh in place of his deceased brother Ram Avadh Singh as an appellant.

In the case of Mahabir Prasad (supra), the Apex Court while permitting transposition of a legal representative of the deceased who is already on record in another capacity, has observed as below:

"Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal reprerentative Even if there are other heirs and legal representatives and no application for impleading them is made with in the period of limitation prescribed by the Limitation Act the proceeding will not abate. On that ground also the order passed by the High Court cannot be sustened".

The Apex Court in observation has thus, propounded that where one of the legal representatives of a deceased is already on record in some other capacity then also the said appeal or other proceeding as the case may be, shall not abate on the death of such party. The question of limitation will not arise in such cases. The learned Single Judge placing reliance upon the aforesaid principle of law laid down by the Apex Court, has also expressed his view in the same manner in para5 of the judgment in Munney Khan''s (supra) case, which is reproduced below:

"In the instant case, as seen above, there was no dispute that one of the legal representatives of Smt. Jamuna Devi who was also a copiaintiff in the suit namely Kalloo Singh respondent No. 1 was already on record and as such the appeal could not abate. There is no limitation prescribed for impleading we remaining legal representatives on record and this could be done any time before the disposal of the appeal in order to keep the record straight That, in the instant case was done and the lower appellate Court should accordingly have impleaded Smt. Basanti Devi also in the appeal and disposed it of on merits".

In the instant case, the suit for injunction was filed against the appellantAvadh Behari Singh and his deceased brother and it was decreed. It was only the deceased Ram Avadh Singh who preferred the appeal before the District Judge and Avadh Behari Singh was impleaded as a respondent in it. On the death of Ram Avadh Singh on 3071983, no application for his substitution was filed till 2311984 when only the appellant Avadh Behari Singh moved the Court for setting aside the abatement and for transposing him as appellant in the appeal. That prayer, in any view of the matter could not be legally refused in the face of the Apex Court''s decision in the case of Mahabir Prasad (supra) and also because the appeal could not have been eated as abated for want of substitution application, as the sole legal representative of the deceased was already on record.

Learned Counsel for the respondents has contended that the appeal is , otherwise also not maintainable because the appeal before the Lower Appellate Court had already come to an end by virtue of its abatement for want of substitution of sole appellant. The abatement amounts to dismissal of the appeal and that dismissal being a decree with in the meaning of Section 2 (2) of the C.RC. could have bean appealed against by the aggrieved party. No such appeal having been preferred by the present appeilantAvadh Behari Singh, he was not entitled to file an appeal under Order XLIII, Rule 1 (k) of the C.RC. In support of his assertion, the learned Counsel has placed reliance upon the case laws of Bhundel v. Smt Gangajali, reported in 1980 ACJ 261 and Radhey sham Shaw & Ors. v. Corporation of Calcutta, reported in AIR 1973 Calcutta 278.

In the case of Bhundel (supra), the learned Single Judge of this Court while dealing with in a similar matter accepted the contention of the respondents that an order of dismissal of the appeal by virtue of its abatement amounted to a decree under Section 2 (2) of the C.RC. against which a regular appeal lies and no appeal, as contemplated under Order XLIII, Rule 1 (k), would be maintainable.

The view taken by the learned Single Judge of this Court as well as of Calcutta High Court, it so appears that what mattered with the Hon''ble Single Judge to take such a view is that the provision of Order XLlll, Rule 1 (k) provides for an appeal only in the case of dismissal of an application under Order XXII, Rule 9 CP.C. and consequent dismissal of suit for want of substitution. The provision of Order XLIll, Rule 1 (k) is reproduced as below:

"1. Appeal from orders.An appeal shall lie from the following orders under the provisions of Section 104, namely:

(k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit."

The words used for availability of an appeal in the aforesaid Rule 1 (k) are though quite specific in respect of a suit, but it is the settled principle of law that an appeal is also continuation of the suit. Thus, for all practical purposes an appeal should be treated as a continuity of suit and all the procedures and the formalities which are required to be Dona in a suit are also available in an appeal.

In the instant appeal, this appellant Awadh Behari Singh as it is reflected from the aforesaid facts, had not preferred the First Appeal before the District Judge. He was arrayed as respondent and if it is deemed that the appeal of his deceased brother was dismissed as abated and a decree was there under Section 2(2) of the C.P.C., he could not prefer appeal against it, simply because he was not an appellant in that First Appeal. The appellantAwadh Behari Singh, being sole surviving legal heir of the deceasedappellant of the First Appeal and was there on the record in the capacity as respondent, the appeal had virtually not abated vide the principle of law laid down in case of Mahabir Prasad (supra) by the Supreme Court. Thus, the matter being crystal clear that the present appellant could neither prefer an appeal against the so called decree of abatement/dismissal of the First Appeal nor the First Appeal had actually abated, the only option before him, after death of his brother appellant, was to move the I Appellate Court for his transposition at the place of his deceased appellant. He used that option available to him and if such petition moved under Order XXII, Rule 9 of C.P.C. has been dismissed, the only remedy available to Awadh Behari Singh, the present appellant was to come up to this Court under the provision of Order XLIII, Rule 1 (k) of C.RC. Thus, in the present case, the principle of law of the cases of Bhundel (supra) and Radhey sham Shaw (supra) did not come to help the respondents and the contention that an appeal before this Court under Order 43 Rule 1 (k) is not maintainable, does not stand to the legal test.

In the aforesaid view of the matter, the appeal succeeds and is here by allowed with costs. The impugned order of the learned Lower Appellate Court dated 971986 is here by set aside. The case is sent back to the Lower Appellate Court for further proceeding in accordance with law. Since the appeal is very old, it is here by directed that the District Judge, Ballia will get the hearing expedited as to dispose it of with in a maximum period of six months from the date of filing a certified copy of the judgment of this Court before him.