Majeed Khan vs Buddhu Khan and Others

U.C. Maheshwari, J.—This appeal is directed by the appellant under Order 43 Rule 1 (k) and (w) of the CPC being aggrieved by the order dated 3.4.98 passed by the Vth Addl. District Judge, Bhopal in MJC No. 21/97 dismissing his application filed under Order 22 Rule 9 read with Order 47 Rule 1 of the CPC.

The facts giving rise to this appeal are that the appellant preferred the aforesaid application in the subordinate appellate court for setting aside the abatement of the Civil Appeal No. 6-A/95 caused on account of the death of respondent No. 1 Yusuf Khan (in such appeal) along with the prayer for recalling and reviewing the order dated 12.5.1997 holding the aforesaid appeal as abated in toto. As per averments of it appellant being illiterate and uneducated person, did not have any knowledge about the legal procedure, thus he preferred the aforesaid appeal engaging the counsel Shri Sher Singh to prosecute the same. The same was held to be abated in toto vide order dated 12.5.97 on account of non-bringing the legal representatives of deceased respondent/plaintiff No. 1 Yusuf Khan on record within the prescribed limitation. He informed the death of said respondent to his counsel who did not inform him regarding limitation and for filling any application in this regard. As per further averments on non taking the steps such appeal would have been abated against such respondent only and not against other respondents. Thus, the order dated 12.5.97 requires reconsideration by review. The appellant came to know about it only on obtaining the certified copy of said order and on taking advice of some other counsel. Since the appellant could not take appropriate steps in this regard in the lack of advice of the counsel hence the same is liable to be condoned and pardoned. Before passing the aforesaid order, it was not expected that entire appeal would have been abated. The appellant should not be penalised because of the mistake of his counsel. With these pleadings he prayed for setting aside the abatement of the appeal and also the order dated 12.5.97 with a direction to bring the legal representatives of deceased respondent on record. In alternative it was prayed that in any case appeal be proceeded against the other respondents by holding the abatement only against the deceased respondent.

In reply of respondents 1 and 2, the averments of the aforesaid application are denied. The decree subject matter of the appeal was passed in their suit for declaration and partition of a joint property by which the different shares in property were decided by the trial Court and, at the stage of appeal, on account of death of one of the respondent, the appeal could not be adjudicated in the absence of brining the legal representatives of the deceased Yusuf Khan (the respondent) between the remaining parties. Therefore, the appeal was rightly held to be abated in toto. In the lack of any explanation for brining the legal representatives of Yusuf Khan on record at belated stage, the alleged abatement of the appeal can not be set aside. The appellate court has not committed any error or mistake on the face of the record or otherwise , therefore, the ground for review is also not available to the appellant.

On consideration, such application has been dismissed by the subordinate appellate court by holding that the decree of the trial court, being decree for declaration and partition deciding the share of the parties and in the absence of the legal representatives of the deceased respondent the appeal could not be adjudicated between the remaining parties. It was held that there is no ground for setting aside the abatement of the appeal at belated stage. The same is challenged by the appellant in this appeal.

Shri A.B.Khan, learned Counsel for the appellant assailed the impugned order saying that the order passed by the appellate Court in Regular Civil Appeal No. 6-A/95 on dated 12.5.97 is neither in consonance with the record nor is in accordance with the law.

He further argued that the respondent No. 1 and 2 filed an application under Order 22 rule 3 (2) of the CPC on 21.2.97 for dismissal of the appeal by holding as abated in toto on account of death of Yusuf Khan and not brining his legal representatives on record within limitation from the date of his death 27.9.96. The same was replied by the appellant on the same day stating that along with the list of the legal representatives of the deceased Yusuf Khan, the application for bringing them on record was filed on behalf of respondents on dated 17.10.96 , therefore, the appeal could not be held to be abated. The appellant also filed an application under Order 6 rule 17 of the CPC on the same day for amending his appeal memo in this regard. The same was replied by the respondent on dated 26.2.97 stating that the appeal has already been abated and such application could not be allowed. In addition, respondent also filed an application u/s 151 of the CPC on dated 26.2.97 for dismissal of the appeal on the same ground. Subsequent to this, on dated 2.4.97, the appellant again filed an application under Order 22 Order 3 read with Order 6 rule 17 of the CPC mentioning that earlier application filed by respondent on dated 17.10.96 , is still pending, thus appellant be permitted to incorporate the name of the legal representatives of Yusuf Khan on record. The same was replied by the respondent on dated 23.4.97. In such circumstances, he ought to have been permitted by the appellate Court for bringing the legal representatives of Yusuf Khan on record but while passing the order on 12.5.97, the aforesaid circumstances were not taken in consideration. In such circumstances, the steps for setting aside the abatement was not required as the required application was filed by the respondents in one month, within time, therefore, by allowing this appeal,his application be allowed and the impugned order along with the order dated 12.5.97 passed in appeal be set aside. In alternative the abatement of appeal, if any, be also set aside in the available circumstances.

Shri Istiaq Hussain, learned Counsel for the respondents 1 to 4 and 7 while responding the aforesaid arguments justified the impugned order and the order dated 12.5.07 passed in RCA No. 6-A/95 and said that in the lack of bringing the legal representatives of the deceased respondent Yusuf Khan on record within time in the peculiar circumstances of the case, the appeal was rightly abated in toto and no mistake or apparent error has been committed by such Court. In such premises the grounds for review are also not made out. He also placed his reliance on the reported cases in the matter of Ramagya Prasad Gupta and Others Vs. Shri Murli Prasad and Others, , The D.F.O., South Kheri and Others Vs. Ram Sanehi Singh, and Jyatrabai v. Babu 1979(1) MPWN-309.

Having heard the learned Counsel, I have gone through the record of impugned MJC as well as RCA No. 6-A/95 along with impugned orders.

So far review is concerned, the same could be carried out under Order 47 rule 1 of the CPC by the same court which passed the order if the appeal is allowed against such order and the same has not been preferred or the appeal is not allowed against such order but subject to following grounds:

(a) On discovery of new and important matter,

(b) On evidence, which after the exercise of due diligence was not within the knowledge or could not be produced by the party at the time when the order was made,

(c) On account of some mistake or error apparent on the face of the record.

(d) On any other sufficient reason desire to obtain a review of the order made against the party.

As per the aforesaid provision, such application is entertained by the same court which passed the order.

On perusing the record of the said RCA 6-A/95, in its second part, I have found an application along with the list of 9 proposed legal representatives of deceased respondent having thumb impression of respondent No. 1 Buddha with endorsement of the court official about filing the same on dated 17.10.96 by Shri R.N.Malviya the respondent''s counsel. As per averments of it deceased respondent Yusuf Khan had died on dated 27.9.96 at village Bharosa and bringing his legal representatives on record is necessary. The death certificate of Yusuf Khan is also annexed with it. Although, such application is preferred by the respondents counsel, without mentioning any provision of the law on its cause title. The same was preferred within 20 days from the death of said respondent and was pending on passing the order dated 12.5.97. It appears that without taking the same in consideration by passing the aforesaid order, the appeal was held to be abated in toto.

As per provision of Order 22 Rule 4(1) of the CPC,on the death of the defendant or respondent, in that behalf, any interested person can move the application for bringing his legal representatives on record. It does not put the duty only on the plaintiff or the appellant for taking such steps.

In view of the aforesaid, it is not necessary that application for bringing the legal representatives of the respondent against whom the right to sue is survived must be filed by the appellant or plaintiff only if such proceeding is filed by any other interested person or the parties of the case the same can be treated as sufficient compliance of order 22 Rule 4 of the CPC. Under the law within limitation the application for such purpose is necessary but by whom the same be filed it does not have material importance for consideration of such question.

Incidentally, such question was considered and answered by the Apex Court in the matter of Union of India (UOI) Vs. Ram Charan and Others, in which it was held as under:

...Rules 3 and 4 of Order XXII C.P.C lay down respectively the procedure to be followed in case of death of one of several plaintiffs when the right to sue does not survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or of the death of one several defendants or of sole defendant in similar circumstances. The procedure, requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit. It does not say who is to present the application. Ordinarily, it would be the plaintiff as by the abatement of the suit the defendant stands to gain. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates so far as the deceased plaintiff is concerned or as against the deceased defendant....

Thus it has become crystal clear that even the application filed on behalf of the remaining respondents on dated 17.10.96 within the prescribed period from the death of the respondent Yusuf Khan on 22.9.96 would have been considered by the appellate court. But even on passing the order dated 12.5.97 in such appeal holding the same as abated and also on passing the impugned order, such application was not taken into consideration. I have not found a single word about consideration of such application. The same is being undisposed of can be considered at this stage. Although even after committing such error in passing the order on dated 12.5.97 the appellate court could have rectified such mistake while disposing off the impugned review petition as it was a apparent error and mistake committed by the appellate court. In fact,it was a fit case in which by invoking the power of review, the aforesaid application dated 17.10.96 ought to have been allowed by setting aside the order dated 12.5.97 passed in appeal and the same should have been decided on merits.

In above circumstances when the application to bring the legal representatives of deceased respondent was filed on behalf of the remaining respondents then it could be assumed that the appellant and his counsel were remained under the impression that no further application in this regard is necessary. Therefore, the appellant could not be labeled as ignorant person regarding death of the deceased respondent and on that count the appeal would not have been abated even in view of the provision of Order 22 Rule 4(5) of the CPC.

In view of the aforesaid finding the other questions raised by the counsel for the respective parties regarding abatement of the appeal or setting aside the abatement of such appeal do not require any further consideration. In such premises, the case laws cited by the respondent counsel are not helping him because such appeal was never abated in the above mentioned circumstances.

Therefore, it is held that the proceedings for bringing the legal representative of the deceased respondent on record filed within time by the respondents in C.A.No.6-A/95 was sufficient to bring them on record and appellate court ought to have considered and allowed the same in the available circumstances.

In such premises, the impugned order and the order passed on 12.5.97 by the appellate court in Civil Appeal No. 6-A/95 being perverse and contrary to law are not sustainable and deserves to be set aside.

Therefore, by allowing this appeal and the review application filed by the appellant, the impugned order and the order dated 12.5.97 passed in C.R.Appeal No. 6-A/95 are set aside and by allowing the aforesaid application dated 17.10.96 filed on behalf of respondent No. 1 the appellant is permitted to incorporate the name of legal representatives of deceased respondent Yusuf Khan on record. The appellate court is further directed to restore such appeal on its original number and subject to compliance of this order decide the same on merits expeditiously probably before winter vacation of 2007. There shall be no order as to the cost.

Appeal is allowed as indicated above.