Allowed

Ram Kali v. Soma Devi

Himachal Pradesh HC3 May 2017RSA/579/2016

Case brief

AI extract

What is this about?

This judgment allows an appeal against a decision made against a deceased person without substituting legal representatives. The High Court quashed the impugned judgment as a nullity and remanded the case to the lower appellate Court to decide on abatement and substitution of legal representatives before the final disposition of the appeal.

What did the court decide?

The impugned judgment and decree are quashed and set aside. The case is remanded to the lower appellate Court for deciding the issue of abatement and substitution of legal representatives, after which

Ram Kali Vs Soma Devi — Civil Procedure and Limitation | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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RSA No. 579 of 2016. Date of decision: May 3, 2017.

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Ram Kali & ors. …...Appellants.

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Versus

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Soma Devi & ors. ……Respondents.

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Coram

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The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?¹ No.

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For the appellants	:	Mr. Tara Singh Chauhan, Advocate.
For the respondents	:	Mr. Sanjeev Kuthiala, Advocate, for respondents No.1 to 4.

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Dharam Chand Chaudhary, J. (Oral)

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Challenge herein is to the judgment and decree dated 22.9.2016 passed by learned District Judge, Bilaspur in Civil Appeal No. 13/13 of 2016, whereby the judgment and decree passed by learned Civil Judge (Junior Division), Court No. 3, Ghumarwin, District Bilaspur, has been set aside and the appeal allowed.

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Be it stated that the appeal is not yet admitted and at present is at the stage of consideration in an application [CMP(M) No. 190 of 2017] filed for substitution of legal representatives of Shri Deep Chand, respondent No. 5 (respondent No. 2 in the lower appellate Court).

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1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.

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Shri Deep Chand, respondent No. 5 had passed away on 17.9.2016 i.e. before the pronouncement of the judgment by the lower appellate Court. The appeal, however, has been allowed by learned lower appellate Court without taking note of his death vide judgment and decree impugned before this Court in the present appeal. The impugned judgment, therefore, admittedly is against dead person, i.e. respondent No. 5 Shri Deep Chand. There is no quarrel so as to he died well before the pronouncement of the judgment by the lower appellate Court.

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Whether the appeal on the death of respondent No. 5 herein stands abated for want of consequential steps by the surviving respondents or his legal representatives or not, is a question which can only be gone into and determined by learned lower appellate Court alone. No doubt, the above said application (CMP(M) No. 190 of 2017) supported by the affidavit of appellant No. 1 Smt. Ram Kali has been filed. In support thereof, copy of the death certificate of deceased respondent Deep Chandhas also been filed. However, such material placed on record cannot be looked into by this Court and appellants rather should bring the same on the record of lower appellate Court and to seek substitution of legal representatives of deceased respondent No. 5 Deep Chand there.

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Law on the point in issue is no more res integra as a Coordinate Bench of this Court in Jagan Nath and others versus Smt. Ishwari Devi, 1988 (2) Shim. L.C. 273 , has held that the question of

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substitution of legal representatives of a deceased party and the abatement of the suit/appeal for want of consequential steps has to be decided by that very Court where at the time of death of such party the lis was pending. Consequently, the judgment under challenge was set aside and the case remanded to the lower appellate Court for deciding the questions of substitution of legal representatives of the deceased party and abatement of the appeal, if any.

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A Co-ordinate Bench of this Court, in Karam Chand and others versus Bakshi Ram and others, 2002(1) Shim. L.C. 9 has again held as under:

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“ 4. In the given circumstances of the case, one of the questions which arises for determination is as to the effect of death of Pohlo Ram and not bring on record his legal representatives in the appeal before the lower appellate Court or in other words, the questions now involved in the matter are as follows:

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(i) Whether the appeal before the lower appellate Court had abated, if so the effect and extent of the abatement;

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(ii) Whether the abatement should be set aside or not; and

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(iii) Whether the legal representatives of the deceased may be allowed to be brought on record or not?

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It is well settled that as and when the questions, as foresaid, arise in relation to a suit or appeal, at the first instance, these are to be decided by the Court in which the suit or appeal was pending at the time of the death of the party and abatement, if any, took place.”

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In view of the legal as well as factual position discussed hereinabove, this Court is not left with any other and further option except to allow this appeal and set aside the impugned judgment and decree being nullity and remand the case to the lower appellate Court for deciding the question of substitution of legal representatives of deceased respondent Deep Chand and that on his death the appeal stands abated or not and thereafter to dispose of the appeal afresh on merits after deciding the questions of abatement of appeal and substitution of the legal representatives of deceased respondent Deep Chand.

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For all the reasons hereinabove, the impugned judgment and decree is quashed and set aside. The case is remanded to the lower appellate Court for disposal afresh in accordance with law. The parties through learned Counsel representing them are directed to appear before learned lower appellate Court on 26^th May, 2017.

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Pending application(s), if any, shall also stand disposed of.

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An authenticated coy of this judgment be sent to learned lower appellate Court for being taken on record and compliance.

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Ram Kali v. Soma Devi

Case brief

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Ram Kali v. Soma Devi

Case brief

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