Remanded

Karam Singh and Ors. v. Gopal and Ors.

Himachal Pradesh HC3 Apr 2023RSA/67/2022

Case brief

AI extract

What is this about?

The Single Bench held that a judgment passed against a deceased person is a nullity. The appeal was rendered incomplete as one respondent died during the pendency of the appeal before the lower appellate court without substituting legal heirs. The High Court set aside the impugned order in Civil Appeal No. 20/15/2011 and remanded the matter to the Lower Appellate Court to decide the abatement and

What did the court decide?

Impugned judgment and decree in Civil Appeal No. 20/15/2011 set aside; case remanded to Lower Appellate Court to decide substitution of legal representatives and abatement issues.

Karam Singh and Ors. Vs Gopal and Ors. — Civil Procedure and Limitation | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 67 of 2022 Decided on: 03.04.2023

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Karam Singh & Ors. …..Appellants Versus Gopal & others .…Respondents ___________________________________________________ Coram_ The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? For the appellants: Mr. G.R. Palsra, Advocate. For the respondents: Mr. R.K. Sharma, Sr. Advocate with Mr. Arun Kumar, Advocate, for respondents No. 1, 2, 4 and 6 to 9. Mr. S.K. Banyal, Advocate, for respondent No. 15.

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Sushil Kukreja, Judge (oral)

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By way of instant appeal, the appellants, who were the respondents before the learned lower Appellate Court, are laying challenge to the judgment and decree, dated 06.01.2022, passed by learned Additional District Judge-1, Mandi, District Mandi, H.P., Camp at Karsog, in Civil Appeal No. 20/15/2011, whereby the appeal filed by the appellant (respondent No. 1 herein), was allowed and judgment and decree passed by the learned trial Court was set aside.

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

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The perusal of the record reveals that proforma respondent No. 13, Raj Kumar, has passed away on 31.01.2018, i.e. during the pendency of the appeal in the lower appellate Court, whereas, the impugned judgment and decree was passed by the learned lower Appellate Court on 06.01.2022. The appeal, therefore, 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 a dead person, i.e., proforma respondent No. 13, Raj Kumar. There is no quarrel so as to the fact that proforma respondent No. 13 has expired well before hearing arguments in the appeal by the lower appellate Court. No doubt, applications, i.e. CMPs(M) No. 1510 and 1511 of 2022, for bringing on record the legal representatives of proforma respondent No. 13, Raj Kumar, after condoning the delay in filing the application, have been filed in the present appeal, however, whether the appeal on his death stands abated for want of consequential steps is a question to be gone into and determined by learned lower appellate Court.

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It is settled proposition of law that where a party dies in a pending suit/appeal and judgment/decree is passed in ignorance to such death, the question of substitution of his/her legal heirs and setting aside the abatement, if any, can only be

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considered by the Court, before whom the suit/appeal was pending at that time.

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In Jagan Nath and others versus Smt. Ishwari Devi , 1988 (2) Shimla Law Cases 273, it has been held that the question of 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. Paragraph 6 of the aforesaid judgment reads as under:-

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“6. The fact that one of the several defendantappellants against whom an indivisible decree was passed by the trial Court, had died during the pendency of the appeal before the lower appellate court, and steps to bring his legal representatives on the record of the appeal had not been taken within the prescribed period, being undisputed, it must be held that the appeal had already abated prior to the decision of the lower appellate court dated April 9, 1987. The decree of the lower appellate court was thus a nullity as it had been passed also against a dead person. The legal position is not in dispute. What is the course which should normally be adopted in a situation like this, has been succinctly stated in the decision of the Calcutta High Court in Kanailal’s case (supra). It was observed by the Division Bench, after noticing the decisions of various High Courts and the Supreme Court, that:

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….. In such circumstances, in our opinion the uniform procedure followed by the other High Courts as referred to hereinbefore should be accepted, namely, he ineffective decree passed by the court of appeal below should be set aside and the appeal should be remanded to the said

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court, keeping it open to the appellants to move the said court for an opportunity to have the abatement set aside if the appellants could satisfy the said court that they are so entitled in law…………

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I am in entire agreement with the aforesaid observations.”

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Further in Karam Chand and others versus Bakshi

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Ram and others , 2002 (1) Shimla Law Cases 9, it has again been held that as and when the questions with respect to substitution of legal heirs of deceased party and abatement of the suit or appeal for want of consequential steps, arise in relation to a suit or appeal, 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. Relevant paragraphs of the aforesaid judgment read as under:

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"4. In the given circumstances of the case, one or 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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5. It is well settled that as and when the questions, as aforesaid, 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

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time of the death of the party and abatement, if any, took place”

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Similarly, the apex Court in Kishun @ Ram Kishun

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versus Bihari , AIR 2005 Supreme Court 3799, has held that a judgment against or in favour of a dead person is nullity.

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In the present case, proforma respondent No. 13, Raj Kumar died when the appeal was pending before the learned lower Appellate Court, hence the question of substitution of his legal heirs and setting aside the abatement, if any, was to be decided by the same Court. Accordingly, the impugned judgment and decree is set aside and the case is remanded to the lower appellate Court with a direction to decide the question of substitution of legal representatives of proforma respondent No. 13, Raj Kumar and setting aside the abatement, if any, after affording due opportunity of being heard to the parties and thereafter dispose of the appeal afresh on merits The parties through learned counsel representing them are directed to appear before learned lower appellate Court on 10^th May, 2023 .

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The appeal, as also pending application(s), if any, stands disposed of accordingly.

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( Sushil Kukreja ) Judge

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April 03, 2023 (raman)

Karam Singh and Ors. v. Gopal and Ors.

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Karam Singh and Ors. v. Gopal and Ors.

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