Dismissed

Bhuneshwar Prasad v. Sawaria Devi and Ors.

Patna HC5 Apr 2013SA/415/1993

Case brief

AI extract

What is this about?

This court dismissed a second appeal where the appellant claimed the first appeal had abated in 1985 due to the death of respondents and failure to substitute legal heirs. The court rejected this plea, holding that technical abatement is a matter for the discretion of the deceased respondent's representatives if they raise the issue, especially given they were unaffected by the upheld decree.

What did the court decide?

Second appeal dismissed; plea that prior appeal abated and judgment was a nullity rejected.

Bhuneshwar Prasad Vs Sawaria Devi and Ors. — Civil Procedure and Limitation | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.415 of 1993

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====================================================== Bhuneshwar Prasad, son of late Sharda Prasad, resident of Punjabi Market, Banglaghat, P.S. Buxar District-Buxar .... .... Appellant/s Versus 1(a) Sawaria Devi widow of late Radha Prasad Sharma 1(b) Sravan Kumar, son of late Radha Prasad Sharma, all resident of Punjabi Market Bangla Ghat, P.S.- Buxar District Buxar 1(d) Laxmina Devi wife of Lalu Sharma, resident of Barha Path, Ward No. 27, Dehri-on-Sone, P.S. Dehri, District-Rohtas 1(e) Motisari Devi name of husband not known to deponent, Village-Varuna Baswali, P.S.& P.O. Varuna District-Buxar 1(f) Rita Devi name of husband not known to deponent, Railway Colony, Mugalasari, P.S. Mugalsarai ( Rly. Police Station), P.O. Mugalsarai District Chandauli (UP) 1© (i) Manki Devi widow of Late Ram Kumar Sharma 1© (ii) Minor son Mangru Kumar of late Ram Kumar Sharma 1© (iii) Minor Munni daughter of late Ram Kumar Sharma, all resident of Punjabi Market, Bangal Ghat P.S. & District-Buxar .... .... Respondent/s ====================================================== Appearance : For the Appellant/s Mr. Kalyan Kumar Ghose Mr. Archana Meenakshee For the Respondent/s : Mr. Sukumar Sinha, Sr. Advocate Mr. Abinash Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER

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26 05-04-2013 In the present second appeal, an interlocutory application vide I.A. No. 1759 of 2003 was filed on 18.4.2003 under Rules 4 and 11 of Order XXII of the Code of Civil Procedure read with Rule 9 of Order XXII of the Code and under Chapter VI of the Patna High Court Rules. It has been

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stated in the application that respondent no.4 Radhey Shyam Singh alias Ram Bilash Sinha, the vendor of the sale deed in favour of the deceased appellant Sarda Prasad, died on 12.1.2001 leaving behind his heirs described in paragraph

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2 of the application.

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In paragraph 3 it has been stated that respondent no.3 Bhagwat Prasad died on 23^rd April, 1985 leaving behind the heirs and legal representatives as described in paragraph 3. Respondent no.5 Sheo Gobind Pandey is said to have died on 30.7.1985 leaving behind legal heirs as mentioned therein.

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It has further been stated in paragraph 5 of the application that respondent Nos. 3 and 5 died during the pendency of the first appeal pending in the Court of learned Additional District Judge, Buxar as T.A. No. 22 of 1974 which was decided on 5.7.1993. It has been pleaded that in such circumstance, the heirs of respondent nos. 3 and 5 be added as respondents for hearing of the appeal in their presence as required under Chapter VI of the Patna High Court Rules.

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Statement made in paragraph 6 of the present application is a crucial aspect for consideration of dispute in question and is, therefore, being quoted verbatim as below:-

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“6. That under the facts and circumstances the T.A. No. 22 of 1974 is itself abated in the year1985 and the judgment and decree dated 5.7.1993 has become nullity.” 5. This is to be noted at this stage itself that this

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appeal has been filed against the judgment and decree dated 15.7.1993 passed in Title appeal No. 22 of 1975 by learned First Additional District Judge, Buxar, whereby he confirmed the judgment and decree dated 26.7.1975 passed by learned Additional Munsif, Buxar in Title Suit No. 27 of 1968/8 of 1975. The appellant herein, was the appellant before the first appellate Court and the plea of the appellant in I.A. No. 1759 of 2003 is that his appeal stood abated in the year 1985 itself in view of the death of respondent nos. 3 and 5 and non- substitution of their legal heirs in their place. On that ground it has been submitted that the judgment and decree dated 5.7.1993 has become nullity. In other words, the plea of the appellant is that the judgment and decree dated 5.7.1993 passed in T.A. No. 22 of 1974 which is under

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challenge in the present appeal is nullity for the reasons that it was passed “against” dead persons and the title appeal itself abated in the year 1985.

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It has been stated in I.A. No. 1759 of 2003, explaining the reason for delay of nearly eighteen years in filing the application for substitution, that when the deponent who is son of the sole deceased-appellant came to Patna for enquiry about the appeal on 16^th March, 2003 and the learned lawyer enquired about the fact whether all the respondents were alive or not, the deponent went back

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to enquire and thereafter learnt about the death of respondent nos. 2,3 and 5 as has been indicated above. There is no explanation in the application as to what steps were taken prior to 2003 to ascertain the status of the respondents. When the matter in hand was taken up for consideration and this Court made queries, an affidavit has been filed on 13.3.2013, stating that the appellant was not in the know of death of the respondents when the appeal was pending in the Court below.

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Mr. Kalyan Kumar Ghosh, learned counsel

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appearing on behalf of the appellant has submitted that the first appeal before the Courts below abated in the year 1985 itself as a result of the death of respondent nos. 3 and 5 during the pendency of the first appeal. He submits that such abatement is automatic, consequent upon the failure of the legal representatives of the dead respondents to be brought on record within the period of limitation. In view of the above, he submits that any adjudication by the first appellate Court is a nullity and deserves to be set aside on that score. Mr. Ghosh has placed reliance upon various judgments of the Supreme Court as well as Full Bench judgment of this Court and other High Courts. Reference may be made in this regard to the following judgments:-

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“1. AIR 1963 S.C. 1901 (Rameshwar Prasad & ors. Vs. Shambehari Lal Jagannath and another)

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AIR 1979 SC 1393 ( Jayaram Reddi Vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool) 3. AIR 1940 Patna 346(FB)( Ramphal Sahu and ors. Vs. Babu Satdeo Jha and ors)

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AIR 1952 Patna 267 (Ram Saran Ahir and ors.

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Vs. Prithvi Nath Singh and another)

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AIR 1968 Patna 112 ( Smt. Ramrati Devi Vs. Ahmad Behari and others)

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AIR 1926 Allahabad 217 (FB) ( Churya and ors. Vs. Baneshwar)

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AIR 1981 Madhya Prasad (FB) 1 ( Mitthulal and ors. Vs. Badri Prasad and ors).”

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Before I consider the submissions made on behalf of Mr. Ghosh learned counsel, this is to be kept in mind that by the judgment and decree under challenge passed by learned first appellate Court, the judgment and decree of the trial Court was affirmed and it was neither varied or reversed. The judgments relied upon by Mr. Ghosh has to be considered in the background of this fact. In AIR 1940 Patna 346(FB) ( Ramphal Sahu and ors. Vs. Babu Satdeo Jha and ors), this Court had an occasion to consider Order 22 Rule 3 of the Code of Civil Procedure on the question as to whether the appellate Court had the power to proceed with the hearing of an appeal and to reverse or vary the decree in favour of all the plaintiffs and

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defendants under Order 41 Rule 4 of the Code, if all the plaintiffs or defendants appeal from the decree and one of them dies and no substitution is effected within time. The application for setting aside the abatement, so far as the deceased appellant was concerned, in that case had been refused, assuming that the decree appealed from proceeded on a ground common to all the plaintiffs or defendants. In that case, the decree was passed in favour of the plaintiffs against all the four defendants. Against this decree, the four defendants appealed to the High Court. During the pendency of the appeal, one of the appellants died and no steps were taken within the time prescribed period to bring the names of their heirs or representatives on to the record. Later, an application was made to set aside the abatement which was rejected by a Bench of this Court. Thereafter the remaining defendants prosecuted the appeal. It was in this background that the „respondents‟ had taken a preliminary objection that the appeal was incompetent by reason of failure to bring on to the record the names of the legal representatives. It was

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not a case where the appellants themselves( As in the present case) took a plea that the suit before the Courts below stood abated because of the death of one of the plaintiffs rather it was on the objection of the respondents as regards maintainability of the appeal that this Court held that appellate Court cannot “reverse” or “vary decree” in favour of all the appellants if one of them died and no steps for substitution was taken within time. This judgment, in my opinion, does not support the contention as advanced by Mr. Ghosh.

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The judgment of Supreme Court in case of Rameshwar Prasad (supra) and others is equally not applicable in the present case as in that case also the Supreme Court held that the appellate Court did not have the power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under Order 41 Rule 4 of the Code of Civil Procedure when the decree proceeds on a ground common to all the plaintiffs or defendants. In the present case the appellant himself has contended that his appeal before the first

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appellate Court stood abated because of non-substitution of heirs of the defendants who died during the pendency of the first appeal.

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As regards the judgment in case of N. Jayaram Reddi (Supra), I am of the view that the same does not in any manner support the contentions of Mr. Ghosh. The Supreme Court in this case in paragraph 5 held that a decree against a dead person is not necessarily a nullity for all purposes. Dealing with this aspect in paragraph 6, Supreme Court observed that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. The Supreme Court held that any other view would not be possible or permissible for it would fasten liability on him for which he did not have any hearing. The Supreme Court went on to hold that it was a matter entirely at the discretion of the legal representative of the deceased respondent against whom a decree has been passed after his death to decide whether he will raise

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the question that a decree has become a nullity, at appropriate time. (emphasis supplied) In the present case, the judgment which is being contended to have become nullity by virtue of the death of respondent and nonsubstitution of legal heirs in their place is not operating against the legal representatives of the deceased respondents. The legal representatives of the deceased respondents are not raising a question that the decree has become a nullity, when the appellate Court confirmed the Judgment and decree of the trial Court and did not vary or reverse it.

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I am of the considered view that the appellate Court is not denuded with the jurisdiction to hear an appeal in which one of the respondents has died and the right to sue does not survive against the surviving respondent or respondents alone, merely because no application was made to bring his legal representative on record, when no objection to that effect was raised by any one. As has been held by Supreme Court in case of N.Jayaram Reddi ( Supra), technical plea of abatement and

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consequent dismissal of the appeal is a matter at the discretion of the legal representative of the deceased respondent. In the present case, however, the appellant himself submits that the appeal before the first appellate Court stood abated in the year 1985 itself.

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The ratio laid down by Full Bench in AIR 1926 Allahabad 217 that no order is necessary for abatement of a suit or appeal if no substitution is brought within time on the death of a party is a settled law and there cannot be any dispute over this proposition. The abatement takes place by operation of the provisions of the Code of Civil Procedure. The question in the present case is as to whether the appellant himself can claim the appellate judgment and decree to be a nullity on the ground that the appeal abated because of the death of the respondents particularly when the representatives of the said deceased persons have no grievance against the judgment and decree of the first appellate Court. Such claim cannot be maintained in view of the discussions above mentioned and is accordingly, rejected.

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Mr. Ghosh, learned counsel appearing on behalf of the appellant has submitted in the background of the facts and circumstances of the case that only course which is open in the present case is that the first appellate Court considered the question of setting aside the abatement and if the same is considered then the appeal before the first appellate court be revived for fresh hearing. In my view, this submission cannot be accepted, in view of the specific stand taken in the interlocutory application as noted above, that appeal abated. I am of the view that the present second appeal cannot be entertained, in view of above, though the same was admitted after formulating substantial question of law by this Court by order dated 1.3.1994.

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The second appeal is, accordingly, dismissed.

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(Chakradhari Sharan Singh, J)

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Arunkumar/-

Bhuneshwar Prasad v. Sawaria Devi and Ors.

Case brief

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Bhuneshwar Prasad v. Sawaria Devi and Ors.

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