Raj Mal and Others vs Phulan Devi and Others

V.D. Misra, C.J.—This revision is directed against the order of Sub-Judge 1st Class, Kangra, allowing the Plaintiff''s application for bringing the legal representatives of the deceased Defendant on record.

Plaintiff Roop Chand filed a suit for pre-emption and for possession of land. Defendants Puran Chand and others resisted the suit. During the course of proceedings an order was passed on 12th June, 1978 Puran Chand moved the High Court in revision (CR. No. 77 of 1978). During the pendency of the proceedings in the High Court, Roop Chand died on 5th June, 1979. The Defendants made an application for bringing the legal representatives of deceased Roop Chand on record. This application was not opposed and the legal representatives were brought on record by an order dated 12th May, 1980. The revision was decided on 21st July, 1980 and the parties were directed to appear before the trial court on 28th August, 1980. The counsel for the legal representatives already brought on record appeared before the trial court on 4th December, 1980. On 11th December, 1980 an application was made for bringing the legal representatives on record in the suit. This application was resisted. However, the application was allowed.

Mr. Kapil Dev Sood, learned Counsel for the Defendants Petitioners, contends that since the suit was pending before the trial court and the legal representatives were not brought on record in the suit within the limitation, the suit has abated in terms of Order 22, Rule 3 of the Code of Civil Procedure. It is submitted that the bringing of the legal representatives on record in the course of proceedings in the revision does not enure for the benefit of the suit. It is also submitted that the proceedings in the trial court were not stayed though the record was sent for by the High Court. In the alternative, it is submitted that even if the proceedings were stayed, the suit continued to be pending in the trial court where requisite application under Order 22, Rule 3 should have been made within limitation to save abatement.

It is not disputed that this Court had sent for the records and thereafter no proceedings took place in the trial court during the pendency of the revision. For all practical purposes the suit stood stayed. It is the practice of this Court either to stay the suit specifically or, in the alternative, to send for it he records. The results are the same.

My attention has been drawn to a judgment of the Punjab and Haryana High Court in Brij Lal and Ors. v. Vijay Kumar and Ors. 1979 P.L.R. 391. A similar question had arisen in that case. A revision was preferred against an interlocutory order passed by the trial court. During the pendency of the revision the High Court had stayed the proceedings before the trial court. Before it could be decided a party had died. The High Court brought on record the legal representatives of the deceased party. After considering some decisions, it was held that the suit shall not be taken as pending "in the context of Order 22, Rule 4, Code of Civil Procedure, during the pendency of revision in the High Court against the order of the trial court....wherein the proceedings in the trial court had been stayed. The question of abatement of the suit, therefore, does not arise.

Mr. Sood has assailed the correctness of this decision. I need not go into the question because I find that the Supreme Court has spoken about the question. The decision of the Supreme Court is reported in Rangubai Kom Shankar Jagtap Vs. Sunderabai Bhratar Sakharam Jedhe and Others, It is unfortunate indeed that this decision was not brought to the notice of the learned Judge who decided the case of Brij Lal (supra).

In Rangubai''s case (supra), the court considered the judgment of the Judicial Committee of the Privy Council in Brij Inder Singh v. Lala Kanshi Ram and Ors. AIR 1917 P.C. 156. After quoting the reasons given by the Judicial Committee holding that the suit did not abate, the court observed:

This judgment is an authority for the position that if the legal representatives of a deceased Plaintiff or Defendant are brought on record in an appeal or revision from an order made in the suit, that would enure for all subsequent stages of the suit".

(Emphasis supplied)

Thereafter the Supreme Court proceeded to consider the decision of the High Court of Madras in Shankaranaraina Saralaya v. Laxmi Hengsu and Ors. AIR 1931 Mad 277, which distinguished the Privy Council decision. The Supreme Court then proceeded to consider the question on principle and the effect of a combined reading of Order 22, rules 3, 4 and 11 of the Code of Civil Procedure. It then observed:

But there is another principle recognized by the Judicial Committee in the aforesaid decision which softens the rigour of this rule. The said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit".

(Emphasis supplied)

It is true that when the principle was applied to the case which was before that court, it was held that the same legal position cannot be invoked in the reverse or converse situation. But then the principle enunciated by the Judicial Committee was quoted with approval.

Mr. Sood wanted me to study the judgment of the Judicial Committee of the Privy Council referred to above so that he could illustrate that the conclusions of the Supreme Court are not correct. I am afraid I cannot do so. The Supreme Court has interpreted that decision and has enunciated the proposition. I am bound by that.

Since the Supreme Court decision specifically makes a mention of the revision, I have to hold that the legal representatives duly brought on record during the course of revisional proceedings shall enure for the benefit of the suit.

The revision is, therefore, dismissed with costs.