Patna High Court
Mir Wajid Ali vs Fagoo Mandal And Ors. on 22 October, 1937
Equivalent citations: 174IND. CAS.40, AIR 1938 PATNA 125
JUDGMENT Verma, J.
1. This is an appeal against the order of the Subordinate Judge of Purnea who dismissed the appeal before him on the ground that the appeal had abated. It appears that the appeal before the Subordinate Judge was filed by Mir Wajid Ali, the present appellant, and Karu Mandal happened to be one of the respondents and that he died on January 4, 1933.But before his death, notice of the appeal was served on him on November 28, 1932, and he appeared in Court on December 16, 1932. The formal information of his death was given by his brother on July 25, 1933, and on August 1, 1933, a petition was filed by the present appellant for setting aside the abatement. The lower Appellate Court has held that the reasons given by the appellant for his inability to come before the Court earlier are not satisfactory. He has disbelieved his evidence and come to the conclusion that he must have known the date of death of Karu Mandal much earlier than the appellant professes to do.
2. The case for the appellant was that he was informed that his father-in-law was seriously ill and that he went to see him at village Sanba in the Sub-Division of Beguserai in the District of Monghyr. He also says that he usually lives at Sahidganj, a place which is at a distance of about four miles from the residence of Karu Mandal, the name of the village being Barhari. The learned Judge has disbelieved the evidence of the appellant on the ground that from the records of the case it appears that he appeared in the Purnea Court on March 4, 1933, on April 1, 1933, and on May 8, 1933. Even accepting that he was at Purnea on the dates mentioned by the Court below it is not difficult to imagine that a man could come to Purnea without knowing all that was going on in the house of Karu Mandal at Barhari. Moreover, when the opposite party came out with a story that it was not only that Karu Mandal was a very big man in the locality but that the appellant was actually invited to his sradh the lower Appellate Court has clearly come to the conclusion that this story is rather far-fetched. Moreover, when the appellant had already succeeded in serving the notice of the appeal on Karu Mandal before his death he had done all that was expected of him to do in connection with the appeal. It would not be reasonable to expect that he would be inquiring about the health of various respondents from day to day and to find out as to how they were getting on. The lower Appellate Court has also held that as Karu was suffering from pthisis, the appellant ought to have known that he was in a weak state of health and any day he might pass away. But the learned Judge does net say as to what type of pthisis he was suffering from or that his condition was so bad that there was imminent danger of Karu Mandal passing away. In this connection I would like to refer to two decisions of this Court in which it has been pointed out as to what the responsibilities of an appellant are in the case of an appeal about finding out the condition of the respondent. The first case is Mir Nanoo v. Muni Lal 118 Ind. Cas. 326 118 Ind. Cas. 326 : A.I.R. 1929 Pat. 738 : Ind. Rul. (1929) Pat. 518. Where a Division Bench of this Court remarked:
The most that can be said on behalf of the respondent is that in the circumstances the appellant should have known of the death of the respondent. But it has been held on more than one occasion that an appellant having served notice on the respondent is not bound to inquire from day to day as to the state of the health of the respondent or whether he is dead or alive.
3. There is an earlier decision of this Court in Sadhu Saran Pandey v. Nand Kumar Singh 7 P.L.T. 746 : 94 Ind. Cas. 209 : A.I.R. 1926 Pat. 276 : (1926) Pat. 97, where it was held:
No doubt the appellant is required to be diligent in prosecuting his appeal but after he gets the notice served upon the respondent, he is not required to watch the movements of the respondent and as to whether he is dead or alive.
4. In this view of the matter I am of opinion that the lower Court has erred in holding that it was proved that the appellant knew that Karu Mandal was dead long before the notice of his death was given to the Court by his brother. A preliminary objection was taken by Mr. R.S. Chatterji for the respondents to the effect that no appeal lay against an order refusing to set aside an abatement. He refers to Order XLIII, Rule 1(k) which runs as follows:
an order under Rule 9, of Order XXII refusing to set aside the abatement or dismissal of a suit.
5. Mr. Chatterji emphasizes the word "suit" and says that it does not apply to an appeal. In support of this contention he has referred to a decision of the Calcutta High Court in Akkas Mia v. Abdul Aziz Bepari 49 C.L.J. 358 : 121 Ind. Cas. 564 : A.I.R. 1929 Cal. 532 : 33 C.W.N. 881 : Ind. Rul. (1930) Cal. 148, where their Lordships of the Calcutta High Court observed:
There is nothing in Order XLIII, Rule 1(k) which, enables us to apply the word 'suit' to an appeal.
6. But looking at Clause (k) which I have just now reproduced, we find a reference to Order XXII, Rule 9. When we refer to Order XXII, we find that Rule 11 lays down that:
In the application of this order to appeals, so far as may be the word 'plaintiff' shall be held to include an appellant the word 'defendant' a respondent and the word 'suit' an appeal.
7. If Rule 11 applies to Rule 9 I, fail to see how we can read Order XLIII, Rule 1(k) without reference to Rule 11. I need not pursue the matter any further for it appears that in a case in this Court Hari Saran Singh v. Muhammad Eradat Hussain 85 Ind. Cas. 1010 : A.I.R. 1925 Pat. 162 : 2 Pat. L.R. 279 it was held that an appeal lay from an order refusing to set aside an abatement. No case of this Court has been cited before us which has, in any way, differed from the decision in Hari Saran Singh v. Muhammad Aradat Hussain 85 Ind. Cas. 1010 : A.I.R. 1925 Pat. 162 : 2 Pat. L.R. 279, on this point. For the reasons that I have given above and the fact that this seems to be the acknowledged opinion in this Court, I hold that this objection cannot prevail. I, would therefore, allow these appeals with costs against respondents first party.
Wort, J.
8. I entirely agree. I should like to add one word on the question of preliminary objection to make my remarks with the judgment just pronounced quite definite. In my opinion when Order XLIII, Rule 1, Clause (k), Civil Procedure Code is read with reference to Order XXII, Rule 9, it seems to me, with great respect to the decision of the learned Judges of the Calcutta High Court in Akkas Mia v. Abdul Aziz Bapari 49 C.L.J. 538 : 121 Ind. Cas. 564 : A.I.R. 1929 Cal. 532 : 33 C.W.N. 881 : Ind. Rul. (1930) Cal. 148, quite obvious that the construction which the Code it self places on Order XXII, Rule 9, cannot be disregarded in construing Order XLIII, Rule, 1, Clause (k) otherwise quite an anomalous, and, if I may say so, ridiculous position would arise. It is admitted, and indeed the Code provides that there is an appeal from ah order refusing to set aside an abatement in a suit. How con it be said on a parity of reasoning that there is no appeal in a similar order in an appeal? See what would happen? If there was he appeal from an order refusing to set aside an abatement, nothing more can be done, and the Legislature has given a right of appeal in that particular case. If no right of appeal exists in an appeal, then the same result would happen, and no further proceeding could be taken in that appeal. Imagine what would happen in this case. If, as Mr. Chatterji contends, there is no right of appeal because the matter can be raised when the appeal comes before the Court on merits, the first point he would take will be that the appeal has abated, and if we hold that the appeal has abated, there is nothing to be done. That seems to me to be a reason, for if I may respectfully say so, disagreeing with the learned Judges of( the Calcutta High Court in the conclusion which, they have arrived on this point. It seems to me consonant with the view bf Kulwant Sahay, J. in Hari Saran Singh v. Muhammad Eradat Hussain 85 Ind. Cas. 1010 : A.I.R. 1925 Pat. 162 : 2 Pat. L.R. 279, where it appears to have been admitted by the Bar that so long as it was an application for refusing to set aside an. Abatement an appeal would lie. For these reasons, expressed in my own way, I entirely agree with the judgment of my learned brother. I agree also that the appeals should be allowed with costs with the result that the abatement will be set aside and the heirs of respondent No. 3 will be substituted as parties to the appeal in the Court, below. There will be one set of costs. The costs will be paid by the respondents first party.