Rajendra Singh and Another Vs. Krishna Mahato & Ors.
EmailAppeal: Civil Appeal No. 1102 of 2001
(Arising out of SLP (C) No. 947 of 2001)
(Arising out of SLP (C) No. 947 of 2001)
Petitioner: Rajendra Singh and Another
Respondent: Krishna Mahato & Ors.
Apeal: Civil Appeal No. 1102 of 2001
(Arising out of SLP (C) No. 947 of 2001)
(Arising out of SLP (C) No. 947 of 2001)
Judges: M.B.SHAH & B.N.AGRAWAL, JJ.
Date of Judgment: Jun 02, 2002
Head Note:
CIVIL/PRACTICE AND PROCEDURE
Civil Procedure Code, 1908
Order 22, rules 3, 9 – Abatement – Pendency of appeal – Death of plaintiff/~4~ Application for substitution moved – During pendency of that application one of the LRs also dead – Application for bringing his LRs also moved in time – Both applications not taken up – In 1997, High Court directing notice for particular date – Neither party appearing – Dismissal of appeal as abated. Held, to be improper. Applications allowed. Appeal restored. (Paras 3, 4, 6)
JUDGEMENT:
ORDER
1. Heard the learned counsel for the parties.
2. Leave granted.
3. This appeal is filed against the judgment and order dated 7th February, 2000 passed by the High Court of Patna in LPA no. 1418 of 1997. By the impugned order, the High Court dismissed the LPA by holding that the judgment and order dated 16th July 1997 passed by the learned single judge dismissing the appeal as having abated since the sole respondent had died and none was brought on record as his legal representative cannot be said to be illegal or erroneous. It has been pointed out that the impugned order is passed by the High Court without considering the facts which were brought on record. It is submitted that one Ramashish Mahato filed the suit in 1976 against the appellants. The suit was decreed on 25th February 1978. Hence, the appellants preferred F.A. No. 357 of 1978 before the High Court of Patna. The appeal was admitted and kept pending. On 28th August, 1992, Ramashish Mahato died. On coming to know about his death, appellants preferred an application on 13th November, 1992 for bringing his legal representatives on record. That application was filed within the prescribed time. Unfortunately, it was not taken up for hearing. Meanwhile, one of his legal representatives Dirshnath Mahato expired on 27th February, 1995. Therefore, appellants filed substitution application on 9th May 1995 to implead Krishna Mahato (present respondents and others) on record. The aforesaid application was served on the other side and the same was also filed within period of limitation. That second substitution application was not taken up for hearing.
4. Despite the aforestated facts on 17.2.1997, the High Court directed the appellants to serve a copy of the substitution application on the counsel for the respondent on or before 20th February 1997. It is the submission of the appellant that, on behalf of parties no one appeared on the above date. Therefore, application filed by the appellants was dismissed for non-compliance of the directives of the court and the court also dismissed the appeal as abated.
5. The appellants thereafter filed two applications, one on 23rd July 1997 under order 22 rule 9 (2) of the C.P.C. inter alia praying for setting aside the order of abatement and the dismissal of the appeal. He also prayed for restoration of appeal. It appears that he was advised to withdraw the said application with a view to take up the matter by filing an application under order 41 rules 19 and 21 read with rule 151, C.P.C. with similar prayers. The High Court dismissed the said application by order dated 15th September, 1997. Hence, the appellants filed LPA. As stated above, the division bench also dismissed the LPA.
6. In our view, the facts stated above are eloquent which do not require much discussion. The appellants have taken all care and caution to file applications for bringing the legal representatives of the deceased on record within time. Merely because there was delay on the part of the High Court in passing the appropriate order granting substitution would not be a ground for dismissing the appeal as abated. It appears that these facts were not properly placed in LPA. In this view of the matter, the impugned orders passed by the High Court in LPA as well as the first appeal cannot be sustained.
7. In the result, the appeal is allowed the impugned order passed by the High Court of Patna in LPA no. 1418 of 1997 confirming the judgment and order passed in FA no. 357 of 1978 on 16.7.1997 is set aside. FA no. 357 of 1978 stands reserved. Applications for bringing the legal representatives of the deceased are allowed. The appeal stands disposed of accordingly. However, there shall be no order as to costs.
1. Heard the learned counsel for the parties.
2. Leave granted.
3. This appeal is filed against the judgment and order dated 7th February, 2000 passed by the High Court of Patna in LPA no. 1418 of 1997. By the impugned order, the High Court dismissed the LPA by holding that the judgment and order dated 16th July 1997 passed by the learned single judge dismissing the appeal as having abated since the sole respondent had died and none was brought on record as his legal representative cannot be said to be illegal or erroneous. It has been pointed out that the impugned order is passed by the High Court without considering the facts which were brought on record. It is submitted that one Ramashish Mahato filed the suit in 1976 against the appellants. The suit was decreed on 25th February 1978. Hence, the appellants preferred F.A. No. 357 of 1978 before the High Court of Patna. The appeal was admitted and kept pending. On 28th August, 1992, Ramashish Mahato died. On coming to know about his death, appellants preferred an application on 13th November, 1992 for bringing his legal representatives on record. That application was filed within the prescribed time. Unfortunately, it was not taken up for hearing. Meanwhile, one of his legal representatives Dirshnath Mahato expired on 27th February, 1995. Therefore, appellants filed substitution application on 9th May 1995 to implead Krishna Mahato (present respondents and others) on record. The aforesaid application was served on the other side and the same was also filed within period of limitation. That second substitution application was not taken up for hearing.
4. Despite the aforestated facts on 17.2.1997, the High Court directed the appellants to serve a copy of the substitution application on the counsel for the respondent on or before 20th February 1997. It is the submission of the appellant that, on behalf of parties no one appeared on the above date. Therefore, application filed by the appellants was dismissed for non-compliance of the directives of the court and the court also dismissed the appeal as abated.
5. The appellants thereafter filed two applications, one on 23rd July 1997 under order 22 rule 9 (2) of the C.P.C. inter alia praying for setting aside the order of abatement and the dismissal of the appeal. He also prayed for restoration of appeal. It appears that he was advised to withdraw the said application with a view to take up the matter by filing an application under order 41 rules 19 and 21 read with rule 151, C.P.C. with similar prayers. The High Court dismissed the said application by order dated 15th September, 1997. Hence, the appellants filed LPA. As stated above, the division bench also dismissed the LPA.
6. In our view, the facts stated above are eloquent which do not require much discussion. The appellants have taken all care and caution to file applications for bringing the legal representatives of the deceased on record within time. Merely because there was delay on the part of the High Court in passing the appropriate order granting substitution would not be a ground for dismissing the appeal as abated. It appears that these facts were not properly placed in LPA. In this view of the matter, the impugned orders passed by the High Court in LPA as well as the first appeal cannot be sustained.
7. In the result, the appeal is allowed the impugned order passed by the High Court of Patna in LPA no. 1418 of 1997 confirming the judgment and order passed in FA no. 357 of 1978 on 16.7.1997 is set aside. FA no. 357 of 1978 stands reserved. Applications for bringing the legal representatives of the deceased are allowed. The appeal stands disposed of accordingly. However, there shall be no order as to costs.
