Himachal Pradesh High Court
Smt. Kaushalya Devi And Others vs Sh.Rameshwar And Others on 18 September, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 445 of 2005.
.
Date of decision: 18.9.2018.
Smt. Kaushalya Devi and others .....Appellant/Defendants
Versus
Sh.Rameshwar and others ....Respondents/Plaintiffs.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No
For the Appellant : Mr. R.K. Bawa, Senior Advocate, with
Mr. Mr.Prashant Kumar Sharma, Advocate.
For the Respondents : Ms. Seema K. Guleria, Advocate, for
respondents No. 2(a) to 2(d), 3, 5 to 12,
14 to 17 and 20 to 25.
Tarlok Singh Chauhan, Judge (Oral)
The instant appeal was admitted on 31.8.2005 on the following substantial questions of law:
1. Whether the learned first appellate Court had no jurisdiction to decide the question of abatement of the suit on the death of the plaintiff - Shri Jagat Ram, who died on 6.6.1998 when the suit was pending before the learned trial Court?1
Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 20/09/2018 22:58:25 :::HCHP 2
2. Whether due to the wrongful dismissal of the application under Order VI Rule 17 CPC filed by the appellant before the learned first appellate Court, .
seeking therein the permission to amend the grounds of appeal for raising the point of abatement on account of the death of the plaintiff - Shri Jagat Ram, during the pendency of the case before the learned trial Court, grave prejudice has been caused to the appellant/defendant.
2. Looking to the nature of order, I propose to pass, it is not at all necessary to refer to the relevant facts save and except to observe that Jagat Ram one of the plaintiffs died on 6.6.1998 when the suit was pending adjudication before the learned trial Court. It is further not in dispute that the appellants/defendants had filed an application under Order VI Rule 17 CPC before the learned first Appellate Court seeking therein the permission to amend the grounds of appeal for raising the point of abatement on account of the death of the plaintiff Jagat Ram before the trial Court. However, the learned first Appellate Court dismissed this application vide order dated 26.5.2005 by holding that the suit had been filed by as many as 12 plaintiffs including Jagat Ram and it was a simplicitor suit for permanent prohibitory injunction, therefore, the suit could not have abated in toto/whole, even if the LRs of the deceased had not been brought on record within the period of ::: Downloaded on - 20/09/2018 22:58:25 :::HCHP 3 limitation and, therefore, the suit had to proceed in accordance with law despite the death of Jagat Ram.
.
3. What appears to have been conveniently if forgotten by the learned first Appellate Court is that it is more than settled the legal proposition that decree in favour 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.
4. That apart, 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.
5. 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 v. Ishwari Devi, 1988(2) Shim.L.C. 273 and Karam Chand and others v. Bakshi Ram and others, 2002(1) Shim.L.C. 9).
6. Therefore, in the given circumstances, the learned first appellate Court erred in not only rejecting the application filed by the appellants for amendment of the grounds of appeal, but further erred in deciding the question of abatement of the suit on the death of the ::: Downloaded on - 20/09/2018 22:58:25 :::HCHP 4 plaintiff Jagat Ram as admittedly the death had taken place on 6.6.1998 when the suit was pending adjudication before the learned .
trial Court and, therefore, in terms of the law expounded above, it was only the learned trial Court, which had the jurisdiction to decide the question of abatement.
Therefore, both the substantial questions of law are answered in favour of the appellants.
7. Consequently, the judgment and decree passed by the learned trial Court in favour of a dead person is a nullity, as such, the same is set-aside. The case is remanded back to the learned trial Court with a direction to allow the plaintiffs/respondents to take consequential steps for bringing on record the legal representatives of deceased Jagat Ram and thereafter decide the question of substitution of legal representatives as also the question of abatement of the appeal, if any, after affording the parties due opportunities of being heard. In case the suit is held to be maintainable, then needless to say the learned trial Court shall decide the same afresh in accordance with law.
8. The parties through their counsel(s) are directed to appear before the learned trial Court on 08.10.2018. Since the suit was instituted as far as back on 9.11.1995, it is expected that the ::: Downloaded on - 20/09/2018 22:58:25 :::HCHP 5 learned trial Court shall decide the same as expeditiously as possible and in no event later than 31.3.2019.
.
9. The appeal is disposed of in the aforesaid terms, leaving the parties to bear their own costs. All pending applications also stand disposed of.
( Tarlok Singh Chauhan ) 18th September, 2018. Judge.
(GR)
r to
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