Lutu Uraon and Others vs Balu Uraon and Others

S.K. Chattopadhyaya, J.—This appeal is directed against the order dated 22.6.81 and decree signed on 1.7.81 by reason of which the Title

Appeal No. 179/1 of 1976/78 was dismissed as abated as a whole by the learned Sub-Judge, Gumla.

The plaintiffs-appellants filed the title suit No. 321/69 for declaration that the final decree dated 8.5.67 passed in partition suit No. 47/69 is null

and void so far as the plaintiffs are concerned. The plaintiffs were Lutu Oraon, Repa Oraon, Bandhana Oraon, sons of late Birsai Oraon, Budhua

Oraon, minor son of Birsai Oraon through his-mother, natural guardian plaintiff No. 3, Mostt. Gumi Oraon whereas defendants were Balu Oraon

Gahanu Oraon sons of late Mangu Oraon, Narwa Oraon, Wala Oraon, Budhu Oraon, sons of late Rama Oraon, minors through their mother,

natural guardian Mostt. Ghasni, Deoir Oraon, Gandur Oraon sons of late Jitia Uraon, Bandhana Oraon, Bhairo Oraon, Natwa Oraon, sons of late

Sukra Uraon and Most. Sanjhia widow of late Sukra Uraon. On contest the suit was dismissed with cost. The plaintiffs/appellants carried the

matter in appeal before the First Appellate Court. During pendency of the appeal a petition dated 21.7.79 was filed by the respondents under

Order XXII, Rule 4, C.P.C. praying therein to dismiss the appeal as abated on the ground that the defendant-Respondent No. 1 Balu and his heirs

were not substituted within the statutory period. From the order-sheet of the Court of appeal below, it appears that prayer for filing of rejoinder

was also made on behalf of the appellants and the matter was not finally disposed of till the impugned order was passed on 22.6.81. It was the

stand of the appellants before the Court below that Balu died not on 7.5.78 but on 12.5.79 and to resolve this controversy, oral evidence was

adduced before the Court. Having appreciated the evidence on record, the learned lower appellate Court has come to a finding that the

respondents were able to prove the factum of death of Balu as well as the date of his death. On the other hand, it was found that the appellants

miserably failed to prove that Balu died on 12.5.79 and not on 7.5.78 as asserted by the respondents. From the impugned order, it appears that

the lower appellate Court has taken care to scrutinise the evidences of the parties carefully and has come to a definite conclusion that Balu died on

7.5.78 and not on 12.5.79. Moreover, the Court was of the view that instead of placing the actual date of death of Balu, it could have been proper

for the appellants to take steps for substitution along with a petition for condoning the delay in filing the same. The appellate Court having found

that the appeal has abated as against the deceased-respondent Balu, has come to the conclusion that as the appeal involves the common interest of

the parties concerned, the appeal has abated as a whole. With this finding, he dismissed the petition for substitution.

The following substantial questions of law were formulated while admitting the appeal on 12.10.82:

(i) Whether in view of the provisions contained in Order XXII, Rule 10-A of the Code of Civil Procedure, the dismissal of the appeal on the

ground of abatement by the learned Court of appeal below is illegal?

(ii) Whether in a case where the other respondents who are sufficient to represent the interest of the deceased-respondent are already on the

record, the appeal can abate as a whole?

Thereafter, it appears that before this Court the appellants filed an application on 245.1.83 under Order XXII, Rule 4 read with Sections 151

and 152 of the Code praying therein to expugne and delete the name of Balu Oraon and to substitute the names of his heirs and legal

representatives. Paragraphs 3 and 4 of the petition reads as follows:

That the respondent No. 1 Balu Oraon was shown as defendant/respondent No. 1 in the certified copy of the decree under appeal and

accordingly, he was made as respondent No. 1 in the present appeal.

That it has now been transpired that the decree under challenge was not amended by the lower appellate Court, though in place of the respondent

No. 1 Balu Oraon who died during the pendency of the appeal in the Court below and in his place his heirs namely (i) Budhram Oraon (ii) Budhu

Oraon (iii) Chamu Oraon were substituted.

On such petition being filed, by an order dated 31.1.83, this Court sent down the decree for necessary correction by the Court below.

However, the Court below returned the decree under appeal without making any correction in view of the fact that the substitution petition filed by

the appellants was dismissed by the lower appellate Court on 22.6.81 and as such, there was no question of any correction on the decree under

appeal. When this fact was brought to the notice of the Court by the Registry, by an order dated 10.3.83 the said application under Order XXII,

Rule 4 was held to be not maintainable and it was not pressed by the Counsel for the appellants. However, liberty was given to the appellants to

make an application under Chapter VI of the Patna High Court''s Rules.

From the facts aforesaid, it is clear that though the appellants were aware of the fact that substitution petition in respect of heirs of deceased-

respondent Balu was dismissed by the lower appellate Court and though that very order has been impugned in this Second Appeal, the petition

under Order XXII, Rule 4 was filed by stating that though in place of respondent No. 1. Balu Oraon, who died during pendency of the appeal in

the Court below and in his place his heirs were substituted, but decree under challenge was not amended by the lower appellate Court. I fail to

appreciate as to how this sort of submission was made on affidavit. It appears that by mis-statement of facts the appellants, who obtained the

order dated 31.1.83 by which this Court had sent down the decree for necessary correction, placed that though heir of Balu were substituted in

the lower appellate Court, but by mistake the decree was not correctly prepared. When true fact was brought to the notice of this Court, learned

Counsel for the appellants has no option but to withdraw the said application on 10.3.89. However, as liberty was given by this Court on 10.3.89,

the appellants filed a petition under Chapter VI, Rule 4 of the Patna High Court''s Rules read with Section 151 of the Code praying therein to

substitute the names of the persons as stated in Paragraph 11 of the said petition, after deleting the name of the deceased-respondent No. 1, Balu

Oraon. However, on 12.9.83, it appears, again believing on the averments made by the appellants, this Court allowed the said petition by

substituting the legal heirs and representatives of deceased-Respondent as mentioned in paragraph 11. In this petition, the appellants have stated

the background of the case and the nature of the impugned order which resulted in filing the Second Appeal by them. In paragraph 11 of the said

petition, it has been stated that ''in view of the facts stated above, it is necessary to delete the name of the deceased respondent No. 1 Balu Oraon

from the memo of appeal and in his place, the name of his heirs and legal representatives namely (i) Budhram Oraon...: son (ii) Budhu Oraon...son

(iii) Chamu Oraon...son, all residents of village Sillam. P.S. Raidih District Ranchi be substituted.

It does not stand to reason as to how with the aforesaid facts and prayer, an application was filed under Chapter VI, Rule 4 of the Patna High

Court Rules. Rule 4 of Chapter VI reads thus:

A party to a decree or order desiring to appeal therefrom and to make the legal representative of party who died before the decree or order was

made, a respondent, may, if such legal representative has not been made a party to any subsequent proceedings under such decree or order, enter

his name as a respondent in the memoran, dum of appeal if he presents therewith an affidavit showing that he did not know before the decree or

order was made that such party has died or that he had no reasonable opportunity of informing the Court before such decree or order was made

that such party was dead and stating such other facts as may be necessary in support of his application.

In the petition under Chapter VII the appellants could not have stated that they did not know before the decree or order was made that Balu

had already died because Balu and Gahanu were two brothers and the legal representatives sought to be substituted are none but the sons of Balu.

Mr. Debi Prasad, learned Sr. Counsel appearing on behalf of the appellants, after going through the petitioner, has fairly submitted that in the

present facts and circumstances, the petitioner under Chapter VI Rule 4 was not maintainable but as because an effective order has been passed

by this Court on 12.3. 83, the matter need not be agitated any further.

While agreeing with these submission, I indicate that in order to dispose of this appeal, the maintainability of such application is not required to

be considered but only to highlight the conduct of the appellants throughout, I have mentioned the aforesaid facts. The impugned order clearly

indicates the application of judicial mind of the lower appellate Court inasmuch as it has scrutinised the evidence on record and has given reasons

for dismissing the appeal as abated as a whole. Learned Counsel for the appellants could not point out that the evidence of witness has been mis-

appreciated or misread by the lower appellate Court. However, Mr. Prasad has relied on the decision in the case of Ram Sumiran and Others Vs.

D.D.C. and Others, , in support of his contention that the appellants being rustic and tribal have no legal augment and as such, delay in filing of the

substitution petition before the Court below beyond the statutory period should have been condoned by the learned Court below. In my view, this

argument could have been made if the appellants instead of misleading the Court below would have filed a petition u/s 5 of the Limitation Act along

with a substitution petition. Admittedly, the same was not done and this fact was noticed by the Court of appeal below.

Under the facts and circumstances, in my view, none of the substantial questions of law formulated arises for any decision.

In the result, I find no merit in this appeal and the same in dismissed. As the contesting respondents have not appeared in spite of valid service

of notice, no order as to costs.