Dharam Singh vs Gurbax Singh

Dharam Chand Chaudhary, J.—Appellants, who were defendants in the trial Court, are in second appeal before this Court. They are aggrieved by the judgment and decree dated 11.6.2012 passed by learned Additional District Judge, Una, in Civil Appeal No. 38/2010, whereby the appeal has been dismissed and the judgment and decree dated 29.3.2010, passed by learned Civil Judge (Junior Division), Court No. II, Amb, in Civil Suit No. 196/96 affirmed.

One of the defendants-appellants Shri Dalip Singh passed away on 30.10.2011 during the pendency of the appeal in the lower Appellate Court. No application for substitution of his legal representatives or setting aside the abatement, if any, consequent upon the death of said Dalip Singh was filed in the lower Appellate Court. It is not decipherable from the record as to whether he was proceeded against ex-parte in the lower Appellate Court or contested the appeal. The fact, however, remains that his predecessor-in-interest deceased Khushal Devi, defendant No. 1 in the main suit, had filed written statement and contested the suit. Since no steps for substitution of the legal representatives of deceased defendant Dalip Singh have been taken nor an application filed for setting aside the abatement, if any, of the appeal consequent upon his death in the lower Appellate Court, therefore, the applications filed in this Court for the purpose cannot be entertained, because as per the settled legal principles, the question of abatement of appeal on the death of a party can only be considered and decided by the Court where the lis at the time of death of such party was pending disposal.

A co-ordinate Bench of this Court in Jagan Nath and Others Vs. Smt. Ishwari Devi, , has held that the question of substitution of legal representatives of a deceased party and the abatement of the suit/appeal for want of consequential steps has to be decided by that very Court where at the time of death of such party the lis was pending. Consequently, the judgment under challenge was set aside and the case was remanded to the lower appellate Court for deciding the questions of substitution of legal representatives of the deceased party and abatement of the appeal, if any.

A co-ordinate Bench of this Court, in Karam Chand and Others Vs. Bakshi Ram and Others, has again held as under:

In the given circumstances of the case, one or the questions which arises for determination is as to the effect of death of Pohlo Ram and not bringing on record his legal representatives in the appeal before the lower appellate Court or in other words, the questions now involved in the matter are as follows:

(i) Whether the appeal before the lower appellate Court had abated, if so the effect and extent of the abatement;

(ii) Whether the abatement should be set aside or not; and

(iii) Whether the legal representatives of the deceased may be allowed to be brought on record or not?

It is well settled that as and when the questions, as aforesaid, arise in relation to a suit or appeal, at the first instance, these are to be decided by the Court in which the suit or appeal was pending at the time of the death of the party and abatement, if any, took place.

In view of the legal as well as factual position discussed hereinabove, this Court is left with no other and further option except to allow this appeal and set aside the impugned judgment and decree and remand the case to the lower appellate Court for deciding the question of substitution of legal representatives of deceased defendant-appellant Dalip Singh and that on his death the appeal stands abated or not and thereafter to dispose of the appeal afresh on merits.

For all the reasons hereinabove, the impugned judgment and decree is set aside and the case is remanded to the lower appellate Court, i.e., Additional District Judge, Court No. I, Una, with a direction to allow the appellants-defendants therein to take consequential steps as they deem appropriate and decide the question of substitution of legal representatives of the deceased defendant-appellant Dalip Singh and also the question of abatement of the appeal, if any, after affording due opportunity of being heard to the other party. The parties through learned Counsel representing them are directed to appear before learned lower appellate Court on 28th July, 2014.

An authenticated copy of this judgment be sent to learned lower appellate Court {Additional District Judge, Court No. I, Una}, for compliance and being taken on record. Record be also sent back.