Godho Ram and others vs Bhim Singh and others

Dua, J.—This regular second appeal has been referred by a learned Single Judye to a larger Bench because there appears to be a serious conflict of judicial opinion on the question whether an order setting aside an abatement can be questioned on appeal against the final decree, as provided by Section 105 Code of Civil Procedure.

After going through the facts, however, it appears to us that this question does not arise for consideration and that the appeal can be disposed of without going into it.

For the purposes of understanding the controversy which calls for determination at this stage, the relevant facts may briefly be stated. Defendants Nos. 14 to 16 sold the land in dispute to Defendants Nos. 1 to 13 for a sum of Rs. 4000/- by means of a registered sale deed dated 2nd December 1957. The Plaintiffs claiming to be the heirs of the vendors instituted the present suit for possession by pre-emption of the land so sold. It was contested by the vendees and one of the issues related to limitation. The trial Court on 24th August 1959, passed a decree in favour of the Plaintiffs on payment of Rs. 4,106/-, the amount to be deposited by 5th October 1959 after deducting one-fifth of the sale price already deposited. It has been stated before us at the bar on behalf of the Appellants and not disputed on behalf of the Respondents that on 27th June 1959 Bakhtawar, Defendant No. 12, one of the vendees, had died and his legal representatives were not brought on the record in the trial Court.

The vendees appealed from the pre-emption decree dated 24th October 1959 on 27th October 1959 ; the legal representatives of the deceased Bakhtawar also joined in the appeal. The very first ground taken in the memorandum of appeal preferred in the Court of the District Judge related to the death of Bakhtawar and it was urged that the legal representatives of the deceased having not been brought on the record within time, the decree against him being against a dead person was a nullity. In the second ground it was urged that the suit abated in toto on account of non-impleading of the legal representatives of Bakhtawar as the claim was not separable. The other grounds of course related to other points decided by the Court of first instance against the vendees. On 28th October 1959, notice of the appeal was directed to go to the Respondents in that Court for 2nd December 1959. On 7th November 1959, the guardian for the minors was served. On 7th December 1959, an application was made on behalf of the Respondents Nos. 1 to 5 under Order 22, Rules 4 and 9, CPC Code, for bringing on record the legal representatives of Bakhtawar deceased, it being also prayed that they should be deemed to have been brought on record at the stage of the suit in the trial Court. The learned District Judge granted this application on 8th January 1960 and also disposed of the appeal on the same day, though by a separate order.

On appeal, having been preferred in this Court, the order of the learned District Judge dated 8th January 1960 allowing the petition of the Plaintiff-pre-emptors was also challenged on behalf of the Appellants and it was in this connection that the Respondents urged that Section 105, CPC Code, was inapplicable to this order because it did not affect the decision of the case on its merits.

In my opinion, this question does not call for decision on the facts and circumstances of this case because here we are only concerned with the effect of the decree of the Court of first instance passed on 24th August 1959 when admittedly neither Bakhtawar nor his legal representatives were on the record. Prima facie, the decree could not bind the legal representatives of Bakhtawar deceased because they were not parties to the proceedings on that date ; nor could they be held bound on account of Bakhtawar having been a party to the suit, to begin with, because he had died on 27th June 1959. It is true that in the Court of the learned District Judge, on appeal, they were brought on the record on 8th January 1960 when the appeal was also finally disposed of, but the question, which arises in the present second appeal, is, whether such an order can cure the defect in the decree of the Court of first instance.

Reference at the bar has been made to two decisions: one of this Court and the other of the Lahore High Court.

In Birbal and Others Vs. Harlal Sadasukh and Others, , on which the learned District Judge has also placed his reliance and which is again strongly relied upon by Shri Sarin, is a decision by G.D. Khosla J, (as he then was) and Soni J., the main judgment having been written by the former. There, a suit had been filed on 28th November 1950 and was decreed on 29th December 1951 but during the pendency of the suit Surja, one of the Defendants, died on 28th July 1959 and no attempt was made by the Plaintiff to bring on record the legal representatives of the deceased. The Defendants along with the legal representatives of Surja preferred an appeal on 29th January 1952, one of the grounds of appeal taken being that the decree was a nullity having been passed against a dead person. On appeal, the Plaintiff on 7th April 1952 applied for bringing on record the legal representatives of Surja and also prayed that the abatement of the suit, if any, be set aside. The learned District Judge after enquiring into the matter allowed the legal representatives of Surja to be brought on the record and proceeded to decide the appeal on the merits. The Defendants'' appeal having been dismissed, they preferred a second appeal to this Court and it was on these facts that the Bench made the following observations:

The second point to consider is what is the procedure to be adopted in a case of this type. Abatement having been set aside, parties are restored to their original position at the stage of the proceedings when Surja''s death took place, and the normal course would be to remit the case to the trial Court with a direction that the proceedings be continued from that stage. But this course need be adopted only if the legal representatives of the deceased have been prejudiced in any way. In the present case, we find that Surja died on 28th July 1951 After this date no evidence was taken and the only proceedings which took place were the address of arguments by counsel, and the District Judge has found and rightly so that the decision of the case would not have altered in any way had Surja''s legal representatives been brought on the record before the decree was passed in favour of the Plaintiff.

Support for this view was sought from a Bench decision of the Lahore High Court in AIR 1928 784 (Lahore) , a decision by Shadi Lal C.J. concurred in by Johnstone J. In that case also, one Chuni Lal, a vendee, had died on 8th July 1921 during the pendency of a pre-emption suit and his legal representatives were not brought on the record in the trial Court. The suit was decreed on 4th January 1922 before the expiry of six months (the period applicable at that time to an application to implead the legal representative of a deceased Defendant) from the date of his death. The decree formed the subject-matter of a regular first appeal in the High Court and the learned Chief Justice considered the effect of Chuni Lal''s death on the decree. After referring to a decision of the Madras High Court in Goda Coopooramier v. Soondarammall ILR 33 Mad. 167, it was observed that the decree passed after the death of a party to the suit or appeal is not an absolute nullity and that such a decree is not void nor is it open to the collateral attack, but it is erroneous and liable to be set aside. The learned Chief Justice then proceeded to observe as follows:

The mistake can be rectified if the Court sets aside the proceedings taken after the death of the deceased party and directs that the case be rectified in the presence of his legal representatives from the stage which it had reached immediately before the date of the death. This procedure places all the parties to the litigation in the same position in which they would have been if the legal representative had been impleaded at the proper time.

In the Lahore case, the High Court found that on 21st June 1921 after the Defendants had produced the whole of their evidence, Chuni Lal absented himself from the Court and the proceedings thereafter were taken against him ex parte. He died on 8th July 1921 and admittedly the only evidence recorded after his death was produced by the Plaintiffs on the question of waiver. Since no one relied on this evidence in the High Court, it was considered unnecessary to remand the case to the trial Court for impleading the legal representatives of Chuni Lal who were already on the record and it was described to be a useless formality to record in his presence the evidence of the Plaintiff''s witnesses which did not in any way affect the decision of the Court on the issue of waiver and was not relied upon by the Plaintiffs themselves.

Relying on the ratio of this decision, this Court in Birbal and Others Vs. Harlal Sadasukh and Others, also declined to adopt the normal course of remitting the case to the trial Court with a direction to continue the proceedings from the stage of Suraj''s death.

In my opinion, both these decisions do not avail the Respondents. In the present case it is clear that the only oral evidence consists of P.W.1, Joginder Singh Patwari, and D.W.1, both of whom were examined on 19th August 1959, long after Bakhtawar''s death. The grounds on which the two decisions mentioned above proceed are thus not available to the Respondents in the case in hand.

Shri Sarin has, however, urged that issues in the present case were framed on 6th April 1959 and the Defendants had not summoned any witness for the next two days fixed for recording the evidence. The counsel seeks to infer from this that the legal representatives of Bakhtawar could not have adduced any more and better evidence and that, therefore, this Court should hold that they have not been prejudiced by their absence from the record. I am unable to accede to this contention. Whether or not any witness was summoned by the Defendants, they were certainly entitled at least to cross-examine the Plaintiffs'' witnesses and also to put themselves into the witness box. Besides, it is not permissible to conclude that if they had brought some witnesses with them on the day fixed for recording the evidence, the Court must necessarily have declined to record their evidence. In any case, Bakhtawar''s legal representatives were certainly entitled to put themselves into the witness box and also to cross-examine P.W.1 and of this right they have without doubt been deprived by reason of their absence on account of their having not been made parties to the suit by the Plaintiff. The contention that the oral evidence could by no means have outweighed the evidence furnished by the Girdawari need not detain me because there is no such rule of law, the matter depending on the facts and circumstances of each case. Entries in the Girdawari, it may be stated, are not conclusive. and then, it is scarcely permissible for the Courts to speculate about the quality of evidence which a necessary party not impleaded may have led if properly and lawfully impleaded at the proper stage.

The next question which arises is: what order is called for in this Case ? The suit on the date of its decision bad obviously not abated in the that Court for, the suit was finally decided before the expiry of ninety days, the time limited under Article 177, Limitation Act, for making an application under Order 22, Rule 4(1), Code of Civil Procedure. It is nobody''s case that the appeal in the Court below had at any stage abated. The question of setting aside an abatement by the lower Appellate Court, therefore, scarcely arose; likewise for the same reason the point on which conflict has been noticed by the learned referring Judge can hardly be considered to call for determination by us. The decree of the Court of first instance, however, must for the reasons stated earlier be set aside and a fortiorari the same fate must befall the decree of the lower Appellate Court as also its order on the application dated 7th December 1959. The proceedings held in the Court of first instance after the death of Bakhtawar are also tainted with the same legal infirmity or vice with the result that the trial Court would have to consider the position as from that stage. The question then arises about the position created by the legal repsentatives of Bakhtawar having themselves appealed to the Court of the District Judge on 27th October 1959 and about the fate of the petition under Order 22, Rules 4 and 9, CPC Code, made on 7th December 1959 in the lower Appellate Court by Respondents Nos. 1 to 5 and the effect of these facts on the suit Proceedings. In my view, the proper course to adopt would be to leave the question of adjudication and decision of the above application and passing of suitable orders thereon to the trial Court in the light of all the facts and attending circumstances of the case after hearing the parties unheaded and uninfluenced by any decision given by the lower Appellate Court. We too express no opinion on the point as it was not fully debated at the bar. The application dated 7th December 1959 should in the circumstances be forwarded to the trial Court along with the other relevant record of the case.

For the foregoing reasons we set aside the decrees of the Courts below, the order passed by the lower Appellate Court on the application dated 7th December 1959 and also the proceedings of the trial Court after 27th June, 1959, and remit the case to the Court of first instance for fresh decision in accordance with law and in the light of the observations made above. There would be no order as to costs in this Court. The parties have been directed, through their counsel, to appear in the Court of the Senior Subordinate Judge, Karnal on 18th February 1963 when the learned Judge would, if he considers it proper, send the case to some other competent Court with notice to the parties.

Mehar Singh, J.

I agree.