Ved Parkash vs Kaushal Dutt and Others

Dharam Chand Chaudhary, J.—Challenge herein is to the judgment and decree dated 14.9.2012, passed by learned Additional District Judge, Sirmaur District at Nahan, in Civil Appeal No. 66-N/13 of 2010, whereby the judgment and decree passed by learned Civil Judge (Senior Division) Rajgarh Camp at Sarahan, in Civil Suit No. 294/1 of 2009/03, has been affirmed and the appeal dismissed.

Plaintiff is the appellant herein, whereas defendants and proforma defendants, the respondents. One of the defendants, namely Jagmohan Singh defendant No. 5 died on 6.8.2008 during the pendency of the suit in the trial Court, whereas defendant No. 2 Sahi Ram on 31.8.2012 and defendant No. 4 Jagat Ram on 21.7.2010, i.e., during the pendency of the appeal in the lower appellate Court. One of the defendants, i.e., Prem Dutt, however, passed away on 21.7.2013 during the pendency of the present appeal in this Court.

Plaintiff-appellant has filed a joint application registered as CMP (M) No. 11876 of 2013 for substitution of their legal representatives in this appeal. It is seen that learned trial Court has decided the suit without taking note of the death of defendant No. 5 Jagmohan Singh, whereas learned lower appellate Court decided the appeal without taking note of the death of defendant No. 2 Sahi Ram and defendant No. 4 Jagat Ram.

Although, the suit was not contested by deceased respondents-defendants Jagat Ram, Jagmohan Singh and Prem Dutt, therefore, their death during the pendency of the suit/appeal may not have far reaching consequences nor any impact on the merits of the case, yet respondent-defendant Sahi Ram has filed the written statement and contested the suit. He admittedly died during the pendency of the appeal in the lower appellate Court. What was the impact of his death in the appeal and whether the same had abated for want of consequential steps, is a question, which as per the law laid down, has to be decided by learned lower appellate Court. The question that deceased respondents-defendants Jagat Ram and Jagmohan Singh have not contested the suit, whether their names should be deleted or not, can also be gone into and decided by the lower appellate Court.

So far deceased respondent-defendant Prem Dutt is concerned, he has died during the pendency of this appeal in this Court. His proposed legal representatives are duly served, however, opted not to put in appearance. Keeping in view that said Shri Prem Dutt neither filed the written statement nor contested the suit, there was no necessity of impleadment of his legal representatives and rather a simple prayer for deletion of his name, would have served the ends of justice. However, since this application has been filed for substitution of the proposed legal representatives of deceased respondent-defendant Prem Dutt in his place and as they are duly served, therefore, are ordered to be brought on record as respondents No. 3(a) to 3(g) in this appeal. Necessary corrections be made in the cause title accordingly.

Whether the appeal before the lower appellate Court stands abated on the death of deceased defendant Sahi Ram for want of consequential steps, is a question to be gone into and determined by the lower appellate Court. While arriving at this conclusion, support can be drawn from the judgment rendered by a co-ordinate Bench of this Court in Jagan Nath and Others Vs. Smt. Ishwari Devi, , wherein it has been held that the question of substitution of legal representatives of a deceased party and the abatement of the suit/appeal for want of consequential steps has to be decided by that very Court where at the time of death of such party the lis was pending. Consequently, the judgment under challenge was set aside and the case was remanded to the lower appellate Court for deciding the questions of substitution of legal representatives of the deceased party and abatement of the appeal, if any.

A co-ordinate Bench of this Court, in Karam Chand and Others Vs. Bakshi Ram and Others, has again held as under:

In the given circumstances of the case, one of the questions which arises for determination is as to the effect of death of Pohlo Ram and not bringing on record his legal representatives in the appeal before the lower appellate Court or in other words, the questions now involved in the matter are as follows:

(i) Whether the appeal before the lower appellate Court had abated, if so the effect and extent of the abatement;

(ii) Whether the abatement should be set aside or not; and

(iii) (iii) Whether the legal representatives of the deceased may be allowed to be brought on record or not?

It is well settled that as and when the questions, as aforesaid, arise in relation to a suit or appeal, at the first instance, these are to be decided by the Court in which the suit or appeal was pending at the time of the death of the party and abatement, if any, took place.

Similar view has been taken by this Bench in a recent judgment rendered in Kuldeep Singh v. Gurdev Singh and others, 2014(2) Him. L.R. 831. Thus, in view of the legal as well as factual position discussed hereinabove, this Court is left with no other and further option except to allow this appeal and set aside the impugned judgment and decree and remand the case to learned lower appellate Court for deciding the question of substitution of legal representatives of deceased defendant Sahi Ram and also the impact, if any, on the merits of the case consequent upon the death of deceased defendants Jagat Ram and Jagmohan Singh. The lower appellate Court is directed to allow the appellant-plaintiff herein to take consequential steps on the death of deceased defendant Sahi Ram and also Jagat Ram and Jagmohan Singh and decide the question of abatement of the appeal, if any, on account of their death during the pendency of the appeal/suit after affording due opportunity of being heard to all concerned. Parties through learned Counsel representing them are directed to appear before learned lower appellate Court on May 27, 2014. There shall be a direction to learned lower appellate Court to decide the matter expeditiously, of course, on rendering assistance by both sides.

Appeal and the application(s) stand disposed of accordingly.