Himachal Pradesh High Court
Vivek Kumar Gupta vs Sh.Ramesh Kumar & Others on 29 April, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 308 of 2017-B .
Date of Decision: April 29, 2019 Vivek Kumar Gupta ...Appellant-Plaintiff.
Versus Sh.Ramesh Kumar & others ...Respondents-Defendants.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No For the Appellants : Mr. K.D.Sood, Senior Advocate with Mr.Shubham Sood, Advocate.
For the Respondents : Mr. B.C.Negi, Senior Advocate with Mr.Nitin Thakur, Advocate, for respondnets No.1, 2, 3, 5 to 8, 10(a) to 10(c), 11(d), (e) and (f).
Mr.Neeraj Gupta, Senior Advocate with Ms.Poonam Gehlot, Advocate, for respondent No.28.
Mr.Sudhir Thakur, Senior Advocate with Mr.Anirudh Sharma, Advocate, for respondent No.29.
Tarlok Singh Chauhan, Judge.
Looking to the nature of the order, I propose to pass, it is not at all necessary to advert to the facts in detail. Suffice it to state that the predecessor-in-interest of the plaintiff filed a suit for declaration and permanent prohibitory injunction and the 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 01/05/2019 21:58:03 :::HCHP 2 same was ordered to be returned to him to be presented before an appropriate authority.
2. The plaintiff filed an appeal before the First Appellate .
Court. However, the same was dismissed vide judgment and decree dated 25.02.2017, constraining his successor(s) to file the instant regular second appeal.
3. It is not in dispute that respondent No.27, Sh.Parsia, died on 31.10.2016, when the appeal was pending adjudication before the Additional District Judge, Solan and the same, therefore, stands abated.
4. It is more than settled legal proposition that decree in favor or against a dead person is a nullity as was held by a Bench of three Hon'ble Judges of the Hon'ble Supreme Court in Kishun alias Ram Kishun (dead) through L.Rs. vs. Bihari (D) by L.Rs., AIR 2005 SC 3799.
5. Further the question as to whether the appeal has partly or as a whole abated was a question that could only be adjudicated upon by that court where the abatement had taken place.
6. It is trite that as and when the question of abatement of suit or appeal arises, such question can only be gone into and decided by the Court where the suit or the appeal was pending at the time of death of a party. (Refer: Jagan Nath and others vs. Ishwari Devi, 1988(2) Shim.L.C. 273 and Karam Chand and others vs. Bakshi Ram and others, 2002(1) Shim.L.C.9).
::: Downloaded on - 01/05/2019 21:58:03 :::HCHP 37. In view of the aforesaid exposition of law, the judgment and decree passed by the learned First Appellate Court against a dead person i.e. respondent No.27 is nullity and as such .
the same is set aside. The case is remanded back to the learned First Appellate Court, with a direction to allow the appellant to take consequential steps for bringing on record the legal representatives of deceased respondent No.27 and while deciding question of substitution of legal representatives, also decide the question of abatement of appeal, if any, after affording the parties due opportunities of being heard.
8. The parties, through their learned counsel, are directed to appear before the First Appellate Court on 20.05.2019.
9. Since the suit was instituted more than 12 years back, therefore, learned First Appellate Court, is requested to decide the same as expeditiously as possible and preferably by 30.09.2019. In case the appellant moves requisite application, the same shall be deemed to have been filed within two weeks from today and the same shall be deemed to have been filed on 08.01.2019, as this application was filed before this Court on the said date.
(Tarlok Singh Chauhan), Judge.
April 29, 2019 (Purohit) ::: Downloaded on - 01/05/2019 21:58:03 :::HCHP