Himachal Pradesh High Court
Jagtu And Another vs Of on 27 April, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No.649/2015
.
Decided on: 27th April, 2016
Jagtu and another
.......Appellants
Versus
of
Chet Ram and others
...Respondents
Coram rt
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 No.
For the appellants: Mr. Sanjeev Kuthiala, Advocate.
For the respondents: Mr. Dheeraj K. Vashisht,
Advocate, for respondents No. 4
and 5.
Dharam Chand Chaudhary, Judge (Oral)
RSA No.649/2015 & CMP No.1819/2016 The challenge herein is to the judgment and decree dated 31.7.2015 passed by learned Additional District Judge-II, Una, in Civil Appeal No.12/2012. It is the plaintiffs, who are in second appeal before this Court. The suit for declaration and permanent prohibitory injunction filed by them was dismissed by learned Civil Judge (Jr. Division), Court No.II, Amb, vide judgment dated 28.12.2011. Learned lower appellate court has affirmed the judgment and decree passed by the learned trial court and dismissed the appeal 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:11:58 :::HCHP 2vide judgment and decree under challenge before this Court in the present appeal. The process issued for the service of .
respondents No. 1 and 2 and proforma respondent No. 14 was received back with the report that the said respondents have expired. Now, the application (CMP No.1819/2016), as aforesaid, has been filed with a prayer that since respondent of No.2 Shobha Ram and proforma respondent No.14 Rattani Devi have expired in the year 2005 during the pendency of rt the suit in the trial court, whereas, respondent No.1, Chet Ram, in the year 2014 during the pendency of the appeal in the learned lower appellate court, therefore, the judgment and decree under challenge being nullity is not legally sustainable and the same has, therefore, been sought to be quashed and set aside and the case remanded to the learned trial court for fresh disposal in accordance with law after deciding the question of abatement of the suit/appeal on the death of deceased respondents/defendants.
2 No reply to the application (CMP No.1819/2016) is filed so far. On the other hand, as per the averments in the application supported by the affidavit of one of the appellants/plaintiffs and also Annexure A-1, copy of death certificate of deceased proforma respondent No.14 Rattani Devi, it is established that respondent/defendant No.2 Shobha Ram and proforma respondent No.14 Rattani Devi ::: Downloaded on - 15/04/2017 20:11:58 :::HCHP 3 had expired in the year 2005 at a stage when the suit was pending disposal in the trial court itself. The judgment and .
decree passed by the learned trial court no doubt is in favour of defendant No.2, however, may be against proforma defendant/respondent No.14 Rattani Devi and as her legal representatives were not brought on record within the period of of limitation. Whether the appeal before learned lower appellate Court was maintainable, in view of the judgment rt under challenge was passed against a dead person i.e. defendant No. 2 Shobha Ram and that the appeal on the death of respondent-defendant No. 1 Chet Ram during the pendency thereof is abated or not, are the questions to be considered and decided by learned lower appellate Court.
3. The impugned judgment and decree, therefore, is not legally sustainable and the same is accordingly quashed and set aside, leaving the question of maintainability of the appeal in the lower appellate Court on account of death of respondent-defendant No. 2 and proforma respondent-defendant No. 14, open and the abatement of the appeal on the death of respondent-
defendant No. 1 Chet Ram, the case is remanded to learned lower appellate Court for fresh decision after deciding the legal questions hereinabove.
::: Downloaded on - 15/04/2017 20:11:58 :::HCHP 44. The parties through learned counsel representing them are directed to appear in the lower appellate court on .
24.5.2016. The appeal and the application both stand disposed of accordingly. Pending application(s), if any, shall also stand disposed of.
of
April 27, 2016 (Dharam Chand Chaudhary)
(pankaj) Judge
rt
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