Bhola vs Bhagu and Another

Chopra, J.—This second appeal of the Defendant arises out of a suit which was originally instituted 23 years ago. The case has a checkered history and has been going on from one Court to the other. Briefly stated the facts are these: one Labhu had four sons Bhagu, Teju, Prabh Das and Joginder. The four brothers sold their 58 Kanals of agricultural land for Rs. 5936/- by a registered deed dated 10th Poh 1980 to Karam Chand and Shanker Das. Bhagu and Teju were minors at the time and, therefore, the sale on their behalf was effected through Mst. Hukma, their mother, as their de facto guardian.

On 15-2-1986 Bhagu and Teju, minors through the guardianship of one Inder Singh brought the suit giving rise to the present appeal for possession of their share of the land and for a declaration with respect to the other half sold by their brothers alleging that the sale was without consideration and necessity and that the land in the hands of their brothers was ancestral qua them. Karam Chand and Shanker Das the original vendees had in the meantime sold away half of the land purchased by them to one Kalu son of Niranjan Das of village Bupa Rai. This Kalu was, therefore, also impeded as a Defendant in the suit. The suit remained pending in the trial Court for a number of years when on 14-3-2001 Karam Chand and Shanker Das defendants came forward with an application that the suit had abated as Kalu had died eight or nine years ago and no legal representative of his had been brought on the record. The Plaintiffs then submitted an application on 20th Har 2001 praying that Bhola his son be impleaded as the legal representative of Kalu who died some years ago. On the objections raised by the defendants two issues were framed by the Court On 2-9-2001 and the Plaintiffs were called upon to prove why the suit be not held to have abated. In spite of five adjournments having been given to them the Plaintiffs did not produce any evidence. In his, statement recorded by the Court before framing the issues Bhagu Plaintiff admitted that Kalu was dead for the last six or seven years.

On 17-2-2002 the Court made an order that Bhola son of Kalu be summoned. Bhola did not appear in spite of service of the notice and the Court without passing any formal order for setting aside the abatement or impleading Bhola as the legal representative partly decreed the suit on 30th Sawan 2002. Both the parties went in appeal to the District Judge who set aside the decree of the trial Sub-Judge and remanded the case for fresh decision by his order dated 11-3-2003. The counsel for the parties have not been able to tell me as to what happened thereafter and how the case remained pending all these years.

From the judgment of the trial Judge, however, it appears that some revisions against the order of the District Judge were filed in the High Court of erstwhile Kapurthala State, which were dismissed and the case was tried by the Sub-Judge de novo. After framing issues on the merits of the case the trial Sub-Judge recorded evidence of the parties and finally on the date when the judgment was to be pronounced Karam Chand and Shakar Das entered into a compromise with the Plaintiffs and delivered back half of the property sold on payment of Rs. 2700/-. The suit was consequently decreed in accordance with the terms of, the compromise as against Karam Chand and Shankar Das and ex parte decree against Bhola son of Kalu was passed on 31-7-1950. Bhola went in appeal to the District Judge and took up the plea that the suit against his father had long abated and that no order for setting aside the abatement had been made. Another objection taken by him was that the Court without impleading him as a Defendant could not pass an ex parte decree against him. The District Judge did not accept the first objection but finding that Bhola had not been served as a Defendant in the suit he set aside the ex parte decree and remanded the case for fresh decision under Order 41, Rule 23, C.P.C. Bhola has now come to this Court in second appeal against this order of the District Judge.

A preliminary objection is taken by Shri Lachhman Das, the learned Counsel for the respondent, that the appeal was not competent. His argument is that since an order setting aside abatement of a suit was not appealable a second appeal from the remand order on the question of abatement which should be taken to have been set aside, would not lie. Reliance has been placed on Order 43, Rule 1(u), C.P.C. which enjoins that an appeal from an order under Rule 23 of Order 41 remanding a case was competent only wh''en an appeal would lie from the decree of the appellate Court.

After hearing the counsel for the parties on the point I am of opinion that there is no substance in the preliminary objection. The question before me is whether a second appeal against the appellate decree of the District Judge in this case would have been filed it the District Judge instead of remanding the case had finally disposed of the first appeal. The Legislature has placed the right of appeal from an order of remand on the same footing as the right of appeal from an appellate decree. I am not to see on what grounds the first appeal was (sic) and the grounds on which the second appeal is presented. In order to determine whether an order of remand is appealable or not the test is whether an appeal would have been competent if the Court instead of making an order of remand passed a decree on the strength of the adjudication constituting the order of remand. If a second appeal would lie from the decree, then the order of remand is appealable, otherwise not. In other words an appeal from an order of an appellate Court remanding a case under Order 41, Rule 23, C.P.C. would lie in all cases except where no right of second appeal against the appellate decree is given by the Code or by any other law. Shri Lachhman Das conceded that a second appeal to this Court against the appellate decree of the District Judge in the present case, if it had not been an order of remand, would have been competent. The objection is, consequently, overruled.

As already observed the Plaintiff in his statement dated 2-9-2001 admitted that Kalu to whom a part of the suit property had passed and who was in possession of it and was therefore, a necessary party to the suit, had died six or seven years before. This means that Kalu died somewhere in the year 1994. An application to bring his legal representatives on record was presented for the first time on 29th Har 2001. The issues framed on 2nd Poh 2001 called upon the Plaintiff to prove it the abatement could be set aside. In spite of five adjournments he did not lead any evidence nor did he himself come into the witness-box, to make out a case for setting aside the abatement. The Court thereafter, without assigning any reasons and without impleading him as a defendant, summoned Bhola son of Kalu to appear in the suit. Ex parte proceedings against him were taken on his non-appearance and the suit was finally decreed against him ex parte. The learned Counsel for the respondents has not been able to draw my attention to any order of any Court by which the abatement was ordered to be set aside, nor has he been able to satisfy me why the abatement should have been or should not be set aside. The suit ipso facto abated after expiry of the limitation provided for bringing on record the legal representatives of the deceased Defendant and no specific order to that effect was required to be made under the law. According to the admission of the Plaintiff himself the suit must be taken to have abated somewhere in the year 1994. An express order setting aside the abatement and impleading the legal representatives of the deceased Defendant was then necessary before the suit could be proceeded or decreed against any of the legal representatives. No such order appears to have been made in this case so far.

At one time I had a mind to send back the case for consideration of the question of setting aside the abatement and for decision of the issues which wore framed on 2-9-2001 and remained undecided. But taking into consideration all the facts of the rase I do not think it advisable to start another cycle of litigation at this stage, i.e. 23 years after the suit was instituted. My view is that the Plaintiffs have no case and cannot succeed in putting forward valid reasons for setting aside the abatement. In spite of getting several adjournments they did not lead any evidence to prove the issues or to make out a case for setting aside the abatement and I do not think they deserve any more latitude. This appeal is, consequently, accepted and the decree of the trial Sub-Judge against. Kalu or his son Bhola is set aside. This order, however, will not affect the decree passed against Shankar Das and other who had entered into a compromise with the Plaintiff. No order as to costs.