Hari Saran Singh and Others vs Syed Md. Eradat Hussain

Kulwant Sahay, J.—This is an appeal against an order of the Additional District Judge of Patna dismissing the appellant''s appeal pending before him on the ground that no application for substitution had been made within time as regards respondent No. 2 who had died during the pendency of the appeal. He further ordered that as the appeal could not proceed in the absence of the heirs of the deceased respondent the appeal be dismissed as against the other respondents also.

A preliminary objection has been taken by the learned Vakil for the respondent that no appeal lies against this order to this Court. His contention is that the application filed by the appellant before the lower Appellate Court was an application for substitution under Order 22, Rule 4 of the CPC and the prayer in that application was for substitution of the legal representatives of the deceased respondents. This application had been refused by the District Judge and there is no provision in the CPC giving a right of appeal to the appellant against an order refusing an application for substitution.

The ground taken may be correct in so far as the form of the application is concerned but we have to look to the substance of the application and not merely to the form of it. What happened was that the respondent No. 2 Musammat Bibi Amma died on the 22nd March, 1923. On the 20th July. 1923, the Vakil for the deceased respondent informed the Court that his client was dead. This was after the service of the notice of the appeal upon the respondent and after she had entered appearance in the appeal. Thereupon the learned Judge made an order to the effect that the appellants be informed and they do take the necessary steps at once. On the 10th September, 1923, the appellants filed an application before the District Judge in which they stated in paragraph 2, that although an order had been made to the effect that they, appellants, be informed about the death of the respondent no such information had been given to them and in paragraph 3 they stated that they had come to know of the death of the deceased respondent for the first time on the 10th September, 1923, and by this application they applied that respondent No. 1 who was a relative of the deceased respondent may be directed to disclose the name of the heir of respondent No. 2. As I have said, this application was filed on the 10th September, 1923. On the 18tb September, 1923, the appellants filed an application for substitution stating that Mt. Bibi Amma, the deceased-respondent, had died leaving certain heirs whose names were set out, that the appellant had come to know of the death of the respondent on the 10th September, 1923, on seeing the order of the Court dated the 20th July, 1923, and that the deceased-respondent was a pardanashin Muhammadan lady and had died at Yusufpur, in the District of Muzaffarpur and that the appellants were residents of Jalalpur, Pargana Phulwari, District Patna and therefore the appellants could not ascertain the actual date of the death of the said respondent No. 2. This application was headed as one under Order 22, Rule 4 and the prayer was that the legal representatives named in the petition may be made respondents in place of respondent No. 2. Now it has been argued that this was an application for substitution under Order 22, Rule 4 and not an application for setting aside the abatement of the appeal under Order 22, Rule 9 of the Code of Civil Procedure. Order 43, Rule 1(k) of the CPC provides for an appeal against an order under Order 22, Rule 9 refusing to set aside the abatement or dismissal of a suit and it has been argued by the learned Vakil for the respondent that the present order which was passed on the application for substitution was not an order refusing to set aside the abatement or dismissal of the appeal. Having regard to the circumstances of the case I am of opinion that the application filed on the 18th September, 1923, must be treated as an application for setting aside the abatement and dismissal of the suit. When a respondent dies and no application for substitution is made within the period prescribed by law, the appeal abates automatically under the provisions of Order 22, Rule 4, and the application which is filed after the abatement of the appeal must be an application for setting aside the abatement and then for substitution. No doubt there is no prayer in the application filed on the 19th September, 1923, asking the Court to set aside the abatement, but having regard to the nature of the application it must be treated as if the appellants wanted substitution to be made which substitution could only be made after the setting aside of the abatement and therefore, in substance, this application was an application for setting aside the abatement and then for substitution. This was the view taken under similar circumstances in the cases of Lachmi Narain v. Mohammad Yusuf (1920) 42 All. 540 and Babu Badlu v. Mt. Naraini AIR 1924 Lah. 424. The preliminary objection therefore fails and it must be held that the appeal is an appeal as contemplated by Order 43, Rule 1, (k) of the Civil Procedure Code.

It has next been argued that Order 43, Rule 1, (k) refers to an order refusing to set aside the abatement or dismissal of the suit, and not of an appeal; in the present case the order relates to an appeal and therefore Order 43, Rule 1, (k) has no application to the present case; but Order 22, Rule 11, provides that in the application of this Order (that is Order 22) to appeals, so far as may be, the word "suit" should include appeal and I am clearly of opinion that Order 43, Rule 1(k) would apply to the abatement or dismissal of an appeal also.

It has next been argued that if this application be treated as an application for setting aside the abatement and the order of the District Judge be treated as an order refusing to set aside the abatement, then the matter should be sent back to the learned Judge for consideration of the application as an application for setting aside the abatement and that an opportunity be given to the respondent to adduce evidence to show that the appellant was aware of the death before the date alleged by him. Now we have got before us the petition for substitution and for setting aside the abatement filed by the appellant supported by an affidavit. We have also got before us the petition of objection filed by the respondent in the Court below supported by an affidavit. In the application filed by the appellant an explanation was given why the application could not be filed within the period limited by law. In the petition of objection filed by the respondent there is no allegation made to show that the appellant was aware or could have been aware of the death of the respondent at any time before the date as stated by the appellant. The respondents had full opportunity to take any objection they liked to the grounds of the application filed on the 18th September, 1923. They contented themselves with the objection contained in their petition of the 24th September, 1923, and they did not choose to take any other objections and I see no reason to allow them a further opportunity for adducing evidence. As regards the merits of the case I am clearly of opinion that this is a fit case in which the abatement should be set aside. The deceased respondent was a pardanashin lady residing in the interior of a different district and there is no reason to suppose that the appellant was aware of her death at any time prior to the 10th September, 1923. As I have already said, notice of the appeal had already been served on the deceased respondent and she had entered appearance, as is evident from the order dated the 30th January, 1923, After that it was not the duty of the appellant to be on the look out and to be always enquiring as to whether the respondent in the appeal were alive or dead and if the appellant had done all that was necessary to bring the appeal to hearing, it was not incumbent upon him to go on enquiry every now and then as to whether the respondents were alive or dead. When the appellant came to know of the death he was very prompt and within 8 days of his knowledge he filed an application for setting aside the abatement. There is nothing to show that there were any laches on the part of the appellant or that by the use of reasonable diligence he could have come to know earlier of the death of the respondent No. 2. In the circumstances I am of opinion that the abatement should be set aside and the appeal restored and the case remitted to the learned District Judge so that he might make the substitution of the heirs of the deceased respondent and proceed to dispose of the appeal in accordance with law. The costs of this appeal will abide the result of the appeal in the lower Court.

Jwala Prasad, A.C.J.

I agree.