Ludermani And Others vs Dharam Chand And Others on 26 September, 2018

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Himachal Pradesh High Court

Ludermani And Others vs Dharam Chand And Others on 26 September, 2018

Bench: Tarlok Singh Chauhan

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                          RSA No. 132 of 2016.




                                                                                .
                                                          Date of decision: 26.09.2018.





    Ludermani and others                                        .....Appellants/Plaintiffs.





                                        Versus

    Dharam Chand and others                                 ....Respondents/Defendants.





    Coram

    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

    Whether approved for reporting ?1 No

    For the Appellants                  :        Mr. R.L. Chaudhary, Advocate.

    For the Respondents                 :        Mr.Digvijay Singh, Advocate, for
                                                 respondents No.1 to 3.



                                                 Mr.H.S.Rangra, Advocate, for
                                                 respondents No.5, 10, 11 and 12.




    Tarlok Singh Chauhan, Judge (Oral)

Looking to the nature of order, I propose to pass, it is not at all necessary to refer to the facts in detail. Suffice it to state that the predecessor-in-interest of the appellants filed a suit for declaration with consequential relief of injunction which was decreed by the learned trial Court. However, the judgment and decree so passed were 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 27/09/2018 22:58:12 :::HCHP 2 set aside by the learned first appellate Court, constraining the appellants to file the instant regular second appeal.

2. It is not in dispute that proforma respondent No.14 Man Singh died on 07.05.2012 and at that time the appeal preferred by the respondents herein was pending adjudication before the learned first appellate Court.

3. It is vehemently argued by Shri Digvijay Singh, learned counsel for respondents No.1 to 3 that the death of Man Singh has no bearing in this case since he was only a profoma respondent.

However, the said plea cannot be accepted for more than one reasons. Admittedly, Man Singh, the proforma respondent herein, till the time of filing of appeal before the learned first appellate Court was a contesting party, but insofar as the appeal filed before this Court Court is concerned, he has been arrayed as proforma respondent.

4. That apart, it is more than settled 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.

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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 v. Ishwari Devi,

r to 1988(2) Shim.L.C. 273 and Karam Chand and others v. Bakshi Ram and others, 2002(1) Shim.L.C. 9).

In view of the aforesaid discussion, the judgment and decree passed by the learned first appellate Court against a dead person is a 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 defendants/respondents to take consequential steps for bringing on record the legal representatives of deceased Man Singh 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.

8. The parties through their counsel(s) are directed to appear before the learned first appellate Court on 10.10.2018. Since the suit was instituted as far back as on 21.10.1998, it is expected that ::: Downloaded on - 27/09/2018 22:58:12 :::HCHP 4 the learned first appellate Court shall decide the appeal as expeditiously as possible and in no event later than 31.12.2018.

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 ) 26th September, 2018. Judge.

     (krt)


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