Remanded

Shyam Singh v. Prabhu Ram (Since Deceased)

Himachal Pradesh HC10 Dec 2019RSA/391/2017

Case brief

AI extract

What is this about?

Two civil revision applications were revived and disposed of. The court held that questions regarding substitution of legal representatives for deceased parties pending before the First Appellate Court must be decided by that court. The First Appellate Court's judgment was set aside, and the matter was remanded to determine abatement.

What did the court decide?

The judgment and decree of the First Appellate Court were set aside. The matter was remanded to the First Appellate Court to decide the issue of abatement before deciding the appeal.

Shyam Singh Vs Prabhu Ram (Since Deceased) — Property and Title | Himachal Pradesh HC (2019)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMP (M) Nos.13667 and 6453 of 2019 in RSA No.391 of 2017. Date of Decision : 10^th December, 2019.

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Shyam Singh and anr. ...Appellants.

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Versus

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Prabhu Ram (since deceased) through his legal representatives & ors.

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…Respondents.

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Coram

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The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

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Whether approved for reporting?¹

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For the appellants: Mr. Neeraj Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate.

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For the respondents: Mr. Ashwani K. Sharma, Sr. Advocate with Mr. Ishan Sharma, Advocate, for respondents No.3 and 4.

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Chander Bhusan Barowalia, Judge.

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CMP (M) No.13667 of 2019

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The present application has been maintained by the

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applicants, under Section 151 of the Code of Civil Procedure. As per the applicant, when the said application was taken up for consideration on 18.10.2019, respondents/non-applicants disputed the status of respondent No.10-Amar Chand to be a party having expired on 21.1.2006 by stating that no such person was residing with the name of Amar Chand son of Shri Hazari Ram, thus, under such circumstances, this Court had directed the applicants to place on record death certificate of Amar Chand-respondent No.10.

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

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Heard. As the death certificate is required to be placed

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on record in order to meet the ends of justice, the present application is allowed and death certificate of respondent No.10-Amar Chand, is ordered to be placed on record. Ordered accordingly. Application stands disposed of.

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CMP No.6453 of 2019.

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The present application has been maintained by the

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applicants, under Section 151 of the Code of Civil Procedure. As per the applicants, the learned First Appellate Court has committed an illegality in not deciding the application made by the applicantsappellants for substituting the legal representatives of deceased on record of the appeal before finally disposing of the appeal. The applicants had made requisite applications before the learned First Appellate Court. Nika son of Shri Jindu, who is respondent No.6, in the present appeal was party respondent No.6 before the learned First Appellate Court expired on 3.7.2012 and application for substitution his legal heirs, namely, Ram Pal and Prem Lal, came to be filed on record of the appeal. The proposed legal representatives were ordered to be served through publication on 11.1.2017, but despite service having failed to appear, were proceeded ex parte on 15.3.2017, however, no order was passed on the said application. Respondent No.10-Amar Chand was also impleaded as party respondent in the appeal before the learned First Appellate Court. An application was made for

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bringing on record of the appeal, namely, Pawan Kumar, Sunil Kumar and Raj Kumar, Amar Chand, had expired on 21.1.2006. Shri Amar Chand was proceeded ex parte before the learned Trial Court yet on account of the said application having been made, the learned First Appellate Court directed service of notice to be effected upon the proposed legal representatives, who were ordered to be served by way of publication and despite service having failed to appear were proceeded ex parte on 15.3.2017. However, no order was passed on the said application. Thereafter, respondent No.13-Munshi Ram, expired on 31.3.2005 and an application was filed for bringing on record the legal representatives, namely, Prasotama Devi widow of Shri Nand Lal, Ram Lal, Ram Prakash, Prem Lal (sons), Fulla Devi, daughter, Shakuntla Devi, daughter, Ramesh Kumar, son, Meena Devi, daughter. The learned First Appellate Court ordered the service of aforesaid legal heirs by way of publication, who, after being served, did not put in appearance and were proceeded ex parte. Yet, the fact remains that application for substitution was not disposed of. As far as, respondent No.11-Thakri Devi, is concerned, she had expired during the pendency of appeal before the learned First Appellate Court on 29.6.2000. Application came to be maintained for substitution her legal heirs. The legal heirs of deceased respondent No.11 were ordered to be served by way of publication, but they have failed to put in appearance despite service and were proceeded ex parte on

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15.3.2017. However, no order has been passed on the said application for substitution by the learned First Appellate Court before deciding the appeal. Now, as far as un-served respondent No.12, is concerned, Karmi Devi, she was proceeded against ex parte on 15.3.2017 before the learned First Appellate Court, when she had failed to put in appearance despite service through publication.

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Even though, reply to the application has been filed, but at this stage, when the persons whose legal representatives are brought on record have expired, when the appeal is pending before the learned First Appellate Court, it is only the learned First Appellate Court where the question of abatement or bringing on record the legal representatives is to be considered. It was brought to the notice of this Court that an application was perhaps filed before the learned First Appellate Court, but this fact remains undecided.

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It is settled proposition of law that where a party dies and pending suit/appeal and judgment/decree is passed in ignorance to such death, the question of substitution of heirs and setting aside the abatement, if any, can only be considered by the Court, before whom the suit/appeal was pending when defendant(s)/respondent(s) expired.

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In the present case also, when the appeal was pending

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before the learned First Appellate Court, hence the question of substitution of her heirs and setting aside the abatement, if any, is to

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be decided by the same Court. Therefore, the judgment and decree, passed by the learned First Appellate Court is set aside and the present case is remanded back to the learned First Appellate Court to decide the issue of abatement before deciding the appeal. Parties to appear before the learned First Appellate Court on 2^nd January, 2020.

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The appeal, as also pending application(s), if any, stands disposed of accordingly. No order as to costs. Record of the learned

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Court below be sent back forthwith.

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Copy dasti.

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^th December, 2019 (Chander Bhusan Barowalia) (CS) Judge

Shyam Singh v. Prabhu Ram (Since Deceased)

Case brief

What is this about?

What did the court decide?

Shyam Singh v. Prabhu Ram (Since Deceased)

Case brief

What is this about?

What did the court decide?

What the court decided

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