Dismissed

Bhagat Chand (deceased) v. Pratap Singh

Himachal Pradesh HC5 Jul 2017RSA/45/2016

Case brief

AI extract

What is this about?

The High Court dealt with a second appeal where one of the appellants died during the pendency of the appeal at the lower appellate court. The court held that abatement must be decided by the lower appellate court and set aside the judgment passed against the deceased.

What did the court decide?

The present appeal and pending applications are disposed of; the judgment of the lower appellate court is set aside and the case is remanded to be decided afresh.

Bhagat Chand (deceased) Vs Pratap… — Civil Procedure and Limitation | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 45 of 2016 Decided on: 05.07.2017

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__________________________________________________________ Bhagat Chand & others …..Appellants Versus Pratap Singh & others

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…..Appellants Versus ……Respondents

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_____________________________________________________________ Coram_

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The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? No For the appellants: Mr. B.C. Verma, Advocate. For the respondents: Mr. D.S. Nainta, Advocate, for respondent No. 1.

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Chander Bhusan Barowalia, Judge

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The present regular second appeal has been maintained by the appellants, who were defendants before the learned trial Court (hereinafter to be called as “the defendants”), challenging the judgment and decree, dated 09.10.2015, of the learned Additional District Judge-II, Shimla, H.P. passed in Civil Appeal No. 3-R-13 of 2015, whereby the judgment and decree, dated 12.12.2014, passed by learned Civil Judge (Senior Division), Court No. 1, Rohru, District Shimla, H.P., passed in Civil Suit No. 74-1 of 2012, was set aside and the suit of the plaintiff was decreed. 2. The defendants, by filing written statement, contested and resisted the suit of the plaintiff, wherein Preliminary objections, viz., maintainability, suppression of

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1 Whether reporters of Local Papers may be allowed to see the judgment? yes

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material facts, suit is bad on account of act, deed and

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conduct etc. of the plaintiff and the suit is time barred were taken.

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The learned Trial Court on 05.06.2013, framed the

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following issues for determination and adjudication:

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“1. Whether the plaintiff is entitled for a decree of vacant possession of the land, as prayed for? OPP.

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2. Whether the suit of the plaintiff is not maintainable, as alleged? OPP

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3. Whether the plaintiff has not come to the Court with clean hand and suppressed the material facts, as alleged? OPD

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4. Whether the plaintiff is stopped by his own acts, deeds, behaviors, omissions, commissions and latches to file the present suit, as alleged? OPD

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5. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction, as alleged? OPD

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6. Whether the defendants have become owner of the suit land by way of adverse possession, as alleged? OPD.

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7. Relief.”

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After deciding issues No. 1 to 5 in negative and

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issue No. 6 in affirmative, the suit of the plaintiff was dismissed. Subsequently, the plaintiff preferred an appeal before the learned Lower Appellate Court, which was decreed alongwith costs in favour of the plaintiff and against the defendants. Feeling aggrieved by the decision of learned Lower Appellate Court, the defendants have preferred present regular second appeal.

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Today when the matter was taken up for

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consideration, it is brought to the notice of this Court that appellant No. 1(g) (Kailash) in the present regular second appeal has expired on 15.09.2015 during the pendency of the appeal before learned lower Appellate Court.

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Learned counsel for the appellants has argued

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that the question of abatement is required to be decided by the Court, where the death of party has taken place, this proposition of law is not disputed by the learned counsel for the respondents.

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In the present case, deceased Kailash has

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expired, when the appeal was pending before the learned lower Appellate Court, hence the question of abatement is to be decided by the same Court. Accordingly, judgment and decree, passed by learned lower Appellate Court is liable to be set aside, as deceased Kailash has expired during the pendency of the appeal before learned lower Appellate Court and order passed by this Court in CMP(M) 1500 of 2016, dated 21.12.2016, is recalled, the judgment and decree passed by learned lower Appellate Court is set aside, as it was passed against the dead person and the present case is remanded back to the learned lower Appellate Court to decide the same afresh. However, it is made clear that the parties are at liberty to approach learned lower Appellate Court by way of moving application under law and the

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Court below will decide the application(s), if any, in accordance with law. Parties to appear before learned lower Appellate Courts on 1^st August, 2017 .

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In view of the aforesaid discussions, the appeal, as also pending application(s), if any, shall stand(s) disposed of.

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(Chander Bhusan Barowalia) Judge

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5^th July, 2017

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(raman)

Bhagat Chand (deceased) v. Pratap Singh

Case brief

What is this about?

What did the court decide?

Bhagat Chand (deceased) v. Pratap Singh

Case brief

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