Smt. Nikko @ Saraswati Devi vs Dharam Pal and others

S.D. Bajaj, J.—Labhu Ram son of Gurditta owned 229 Kanals 9 Marlas of land comprised in Had Bast No. 194 of Village Lamin tehsil Dasuya district Hoshiarpur. Ram Das and Dharam Pal both sons of Labhu Ram took possession of this land on the basis of will allegedly executed by Labhu Ram deceased in their favour. Smt. Nikko describing herself to be the daughter of the deceased filed civil suit No. 169 on August 10, 1983 before the learned trial court for obtaining possession of 57 Kanals 7 Marlas and 2 Sarsahis out of this land as her 1/4 share therein. Smt. Shastri Devi defendant respondent No. 2 was alleged therein to be the owner of the remaining 1/4th share besides 1/4 the share each of her two brothers aforesaid. Negativing her claim learned trial court dismissed the suit filed by plaintiff appellant on September 18, 1985. Learned Court of first appeal vide its judgment dated October 23, 1986 dismissed the appeal on the short ground of its being still born; on account of having been filed in the name of Ram Das deceased who was alleged to have died during the pendency of the suit before the learned trial court. Decision rendered by the learned court of first appeal on October 23, 1986 has been challenged in this Court in Regular Second Appeal No. 695 of 1987.

Learned counsel for the plaintiff-appellant referred me to the observations made in Tirath Singh v. Shri Bal Kishan AIR 1984 P&H 173, which reads:-

In view of sub r. (3) of R. 4 of O. XXII of the Code, as substituted by this Court, reproduced in the earlier part of this judgment, the suit could not abate in the trial Court and even could proceed when the legal representative of Lal Chand, deceased, was not brought on the record. Of course, the appellant impleaded Lal Chand, deceased, as a respondent in the appeal because in the decree-sheet prepared by the trial Court, his name was shown as one of the defendants. Thus, it was a bona fide mistake on his part. In case the legal representative of Lal Chand had not been brought on the record in the trial Court, the appeal could be filed by the plaintiff against the surviving defendants without impleading the legal representative of Lal Chand, deceased. In that situation, the appeal was competent and could be decided on merits in view of the provision of sub-rule (3) of R. 4 of Order XXII of the Code, as substituted by this Court.

The relevant sub-rule (3) of Rule 4 of Order XXII of the Code of Civil Procedure, 1908 as substituted by this Court reads:-

Where within the time limited by law no application is made under sub-rule (1), the suit shall not abate as against the deceased defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.

On the basis of substituted rule and the interpretation placed thereon by learned brother J.V. Gupta, J. it has been urged that it was the duty of the surviving defendant or the legal representatives of Ram Das deceased to make an application for being impleaded as parties to the suit. In any case the interest of the deceased-defendant was fully represented by his other brother Dharam Pal who had filed a joint written statement in the learned trial Court. Under the circumstances the appeal filed before the learned court of first appeal could not be dismissed as still born. The legal representatives of Ram Das deceased could be brought on record under Order 1 Rule 10 of the CPC if they so desired. Even in their absence the appeal could be decided on merits taking that the legal representatives of Ram Das were not impleaded in the learned trial court. As a matter of fact, it was for the benefit of the legal representative of Ram Das deceased that they should be brought on record if they so desire. In any case the appeal could not be said to have been filed against a dead person in the sense that Ram Das, one of the defendants, had already died during the pendency of the suit in the trial court.

On behalf of defendant respondents their learned counsel referred me to the observations made in AIR 1946 13 (Federal Court) , Hindustan General Insurance Society Ltd. v. Kedarnarayan AIR 1966 M & B 76, Sachindra Chandra Chakravarti Vs. Jnanendra Narayan Singh Roy and Another, , C. Muttu v. Bharath Match Works, Sivakasi AIR 1964 Mys 293 State of West Bengal Vs. Manisha Maity and Others, Mst. Dhani v. Shri Gian Chand 1973 P.L.J. 451, Municipality, Faridkot through its Administration v. M/s Chander Bhan (1982) 1 S.C. 479, and Ramji Lal and others v. Hira and others (1983) 85 P.L.R. 231, and urged that Ram Das defendant having died during the pendency of the suit and his legal representatives having not been brought on record within the prescribed period, learned court of first appeal was wholly justified in holding that the appeal against a dead person was still born and had therefore, rightly dismissed it as incompetent. None of the rulings cited is relevant on the point in issue. The argument based thereon is, therefore, of no avail to the respondents.

After hearing both the parties, I am of the considered view that the whole approach of the learned court of first appeal was erroneous and wholly illegal. The appeal filed by plaintiff-appellant before it was legally competent and could be proceeded with in the absence of legal representatives of Ram Dass deceased. However, it shall be open to respondents 3 to 4 to come on record as such, if so desired.

As a result of the above discussion, this appeal succeeds and is allowed. The judgment and decree of the learned lower Appellate Court are set aside and the case is remanded for decision on merits in accordance with law. The parties have been directed through their counsel to appear in the Appellate Court on July 25, 1988.